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District Court of Appeal, Second District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Sammy NELSON, Defendant and Appellant.*

Cr. 6957.

Decided: August 19, 1960

Ellery E. Cuff, Public Defender of Los Angeles County, James P. Nunnelley and Richard W. Erskine, Deputy Public Defenders, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

Defendant appeals from a judgment entered upon a jury verdict which found him guilty of manslaughter and from the order denying a motion for new trial.

Defendant contends that the evidence would support a conviction of manslaughter on but one theory: involuntary manslaughter in the commission of a lawful act which might produce death in an unlawful manner, or without due caution, or circumspection (Penal Code, § 192). He argues that (1) by the prosecutor's argument, and (2) by the court's instructions, the jury was led to erroneously believe that a proper theory of guilt was involuntary manslaughter in that there was an unlawful killing in the commission of an unlawful act not amounting to a felony; that there is no evidentiary support for such a theory, and because it cannot be said that the jury did not base its finding on the erroneous theory, unsupported by evidence, the judgment cannot be sustained.

The contention, so far as it pertains to the argument of the prosecutor, cannot be considered by us on appeal. The reporter's transcript does not contain the arguments of counsel made to the jury, and they are not part of the record on appeal. People v. Macias, 161 Cal.App.2d 594, 596, 326 P.2d 936; People v. Chapin, 145 Cal.App.2d 740, 755, 303 P.2d 365; People v. Best, 43 Cal.App.2d 100, 105, 110 P.2d 504. The reporter's transcript shows that the prosecutor's argument was reported but not transcribed as it is not part of the normal record on appeal. Rule 33(a)(2), Rules on Appeal. The notice of appeal requested, in addition to the normal record, that the reporter's transcript include all arguments of the district attorney to the jury, but the request for such additional record did not describe the points on which appellant intended to rely which made it proper to include such arguments (Rule 33 (b), Rules on Appeal), and his request was denied by the court.

The court gave, among others, the following instructions:

1. ‘You are instructed that it is unlawful for any person within this state to carry upon his person any pistol, revolver, or other firearm capable of being concealed upon the person without having a license to carry such firearm.’ (Emphasis added.)

2. ‘Manslaughter is the unlawful killing of a human being without malice. Two kinds of manslaughter, the definitions of which are pertinent in this case, are:

‘1. Voluntary manslaughter, which is that committed upon a sudden quarrel or heat of passion.

‘2. Involuntary manslaughter, which is that done in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ (Emphasis added.)

3. ‘To constitute a felonious homicide there must be, in addition to the death of a human being, an unlawful act which proximately caused that death.

‘The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. It is the efficient cause—the one that necessarily sets in operation the factors that accomplish the injury. It may operate directly or through intermediate agencies or through conditions created by such agencies.’

Penal Code, § 12025, provides that any person is guilty of a criminal offense if he ‘carries concealed upon his person or concealed within any vehicle which is under his control or direction any pistol, revolver, or other firearm capable of being concealed upon the person without having a license to carry such firearm * * *.’ The instruction given by the court, and quoted above, obviously omits the gravamen of an offense under Penal Code, § 12025 in that it fails to include as an element of the offense a carrying of a weapon ‘concealed upon his person or concealed within any vehicle which is under his control or direction’. (Emphasis added.) As given, the instruction was an erroneous statement of the law. However, the jury was instructed that the defendant's conduct must have been the proximate cause of the death. In the recent involuntary manslaughter case of People v. Penny, 44 Cal.2d 861, at page 868, 285 P.2d 926, at page 930, in which an instruction was given relating to a licensed cosmetologist when the only evidence was that the defendant was not licensed, the court said: ‘It is extremely dubious that defendant's lack of a license had any causal connection with Mrs. Stanley's death’. In accepting defendant's contention that ‘failure to have a license or permit of this sort is not the proximate cause of an injury’ we are constrained to believe that in view of the instruction on proximate cause, the jury could not with any logic or reason conclude that the killing by an unconcealed weapon was the proximate result of defendant not being licensed to carry firearms. Accepting defendant's testimony that he did not intend to shoot or injure anyone, we are impelled to say, as did the Court in People v. Carmen, 36 Cal.2d 768, at page 776, 228 P.2d 281, at page 286: ‘* * * yet he was carrying the gun with a cartridge in the firing chamber, with the gun pointed forward, and approaching a car occupied by persons, the jury would have been justified in concluding that he did not act with ‘due caution and circumspection”.

In reviewing a claim of reversible error in the giving of one instruction, it is established that a reviewing court must consider the instructions as a whole. In so doing, we find that in addition to the above-quoted instructions, the jury was instructed to consider the instructions as a whole and not to single out any individual point or instruction and ignore the others (CALJIC No. 5); that the applicability of some of the instructions would depend upon the jury's conclusions as to the facts and if an instruction given applies only to a state of facts which they found did not exist, it was to be disregarded (CALJIC No. 8), and that the killing of a human being is excusable and not unlawful when committed by accident or misfortune, and without any unlawful intent where the person causing the death acted with the care and caution of an ordinarily prudent person (CALJIC No. 200).

Although the instruction on carrying a weapon capable of being concealed without a license was erroneous, the question remains whether the error was prejudicial. While the giving of an instruction which has no application to the facts of a case is error, the giving of such an instruction does not justify a reversal of the judgment unless it is affirmatively shown that the error prejudiced the rights of the defendant. People v. Eggers, 30 Cal.2d 676, 687, 185 P.2d 1. ‘The constitutional mandate [Cal.Const. art. VI, § 4 1/2] forbids a reversal for misdirection of the jury, unless after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ People v. Baumgartner, 166 Cal.App.2d 103, 108, 332 P.2d 366, 370. A “miscarriage of justice' should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error'. People v. Wastson, 46 Cal.2d 818, 836, 299 P.2d 243, 254.

We have carefully examined People v. Sica, 76 Cal.App. 648, 245 P. 461, upon which defendant places his principal reliance for reversal. There is considerable similarity, but in that case the court declined to apply the constitutional mandate for the reason that it was ‘unable to determine whether the defendant would or would not have been convicted by the jury had the instruction on the erroneous theory not been given.’ 76 Cal.App. at page 655, 245 P. at page 464. Such an interpretation of the constitutional provision is not in accord with the rule announced in People v. Watson, supra.

After an examination of the entire cause herein, including the evidence, we are of the opinion that it is not reasonably probable that a more favorable result would have been reached had the erroneous instruction not been given. As we have indicated, and as defendant virtually concedes, the evidence was clearly sufficient to support a conviction of involuntary manslaughter occurring in the commission of a lawful act which might produce death without due caution and circumspection. While there is evidence as to the placing of the gun in the glove compartment, putting it under the seat and handing it back and forth between the three occupants of the car, nowhere is there any question or answer relating to the ‘concealing’ of the gun or that the gun was ‘capable of being concealed upon the person’ nor was there a single question asked as to defendant's being licensed or unlicensed to carry a gun. This fact got into the record by way of a brief stipulation made after all the evidence was in and just before the closing argument. The major force of the evidence was directed to the circumstances under which the gun was fired while being held bt the defendant and pointed inside the car as he slammed the car door shut. In concluding that the jury was not misled and that a more favorable result would not have been reached, absent the giving of the erroneous instruction, we are impressed by the entire absence of a causal or contemporaneous relationship between the possession of a concealable weapon by an unlicensed person and the death as constrasted to the causal and contemporaneous relationship between the closing of the car door and the explosion of the gun.

The only other claim of error is defendant's contention that the court refused ‘to have a conference on instructions'. Defendant claims that ‘counsel could not anticipate that an inapplicable and erroneous instruction would be given’. The statement in appellant's brief that the ‘record in this case shows there was a request to be informed of the instructions to be given’ is not in fact borne out by the record, which merely shows that at the hearing on the motion for new trial, counsel stated: ‘Your Honor will remember I asked for a preargument conference on the matter of instructions'. Penal Code, section 1093.5 sets forth the procedure to be followed if counsel is desirous of knowing the instructions to be given. It was not followed here, and the defendant cannot complain because the court declined to follow some other procedure not required by law.

Judgment and order denying motion for new trial affirmed.

RICHARDS, Justice pro tem.

FOX, P. J., and ASHBURN, J., concur.