PEOPLE v. JOHNSON

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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Reggie Roschi JOHNSON, Defendant and Appellant.

Cr. 19966.

Decided: February 04, 1981

Robert L. Hersh, San Anselmo, for defendant and appellant. George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen. Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Nathan D. Mihara, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

After deliberating four hours, a jury convicted appellant Reggie Johnson of assaulting with intent to murder Leo Mata (Pen.Code, s 217). The jury also found that appellant used a firearm in commission of the offense (Pen.Code, ss 1203.06, subd. (a)(1), 12022.5) and that he intentionally inflicted great bodily injury upon Mata (Pen.Code, s 12022.7).

Consequently, Johnson herein is appealing a judgment sentencing him to the lower term of two years in punishment for the Penal Code section 217 conviction, with a two year enhancement for using a firearm. At trial, appellant principally relied upon self-defense. Three of his four contentions on appeal are without merit. Hereinafter we briefly explain our conclusions that (1) the warrantless police search of the passenger's compartment of appellant's automobile was proven to be entirely reasonable and appropriate in light of the total circumstances of record; (2) that the trial court did not err in finding that exigent circumstances justified the warrantless entry, search for and seizure (arrest) of appellant within the residence of Nora Mollique; and (3) the trial court's instructions correctly define “implied malice,” i. e., in accord with People v. Heffington (1973) 32 Cal.App.3d 1, 107 Cal.Rptr. 859, as regards the charge of assault with intent to commit murder.

After exchange of views and lengthy deliberation thereon we are unanimous in our belief that the evidence adduced by the prosecution warranted jury instructions embodying the law of attempted voluntary manslaughter as required by People v. Sedeno (1974) 10 Cal.3d 703, 715-716, 112 Cal.Rptr. 1, 518 P.2d 913. In the judgment of the majority we hold that the trial court's failure to so instruct sua sponte clearly on the record presented was error requiring reversal of the Penal Code section 217 conviction. The dissenting view finds that error to be “invited error.” Consequently, the Honorable Robert L. Dossee would affirm the judgment.

Appellant shot Mata twice at close range, seriously and perhaps permanently injuring him. The only eyewitnesses were the victim and his friends and they described the incident this way:

Mata could be physical, loud and argumentative when drunk. His reputation among police officers was that he “always gave you mouth.” By 11:00 p. m., December 8, 1978, Mata had drunk a considerable quantity of beer and was very high on “speed” and marijuana. He stood in the middle of a narrow residential street in Pittsburg arguing with three to five friends as to whether he was capable of driving his motorcycle home. At two blacks walking on the opposite side of the street he shouted “nigger” and “we don't need your kind around here.” He forced cars to slow down to avoid hitting him. He kicked a car he thought came too close to him. He told Rhonda Edwards to be quiet when she told him to get out of the street.

Because of Mata's position in the street, Johnson was forced to stop his car. Mata and another man approached the driver's window. Words were exchanged. Johnson asked whether Mata was trying to start trouble. Mata answered that if he wanted him to he would and called Johnson a “fucking nigger.” Mata had his arms folded on the driver's window sill and was leaning over. Johnson warned Mata that he had a gun and that he would shoot Mata. Mata saw no gun and lunged at Johnson through the partially open window: “I was going to fight,” Mata testified. Johnson fired two quick shots, hitting Mata in the throat and chest, and backed his car down the street and fired a wild third shot.

Johnson did not testify but this fragment of a recorded statement he had made to the police was played to the jury:

“Q. And then what happened after that? What did he do?

“A. When he that's when he come with his off thing, you know.

“Q. That when he came with his off thing?

“A. Going out, sticking, you know, coming through my window.

“Q. He stuck his hand through your window?

“A. Right.

“Q. Did he have anything in his hand or was he wearing gloves or

“A. Man, I was paranoid, man, I don't know.” [FN1]

Shortly after the shooting Johnson's car was located at his parents' house and two spent and two live rounds were discovered within. Johnson's father then directed the police to another residence where Johnson stayed with his girl friend, Nora Mollique. Mollique permitted the police to enter the house to search for Johnson. They found him asleep, with a loaded gun nearby, and arrested him.

The Auto Search

From eyewitness descriptions of the gunman and his car the police suspected appellant. They proceeded to his last known address and observed a car in the driveway matching the description given at the scene. The driver's window was shattered. Standing beside the car an officer observed “a spent cartridge casing in plain view on the floorboard of the driver side front seat.” The car was then entered and searched.

Appellant does not contend that probable cause for the search was lacking. However, he points to the state constitutional rule forbidding a warrantless search of a vehicle upon probable cause in the absence of exigent circumstances (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417) and argues the absence of exigent circumstances. However, appellant's argument ignores established doctrine that, due to a number of different factors,[FN2] “theoretical” exigencies (People v. Minjares (1979) 24 Cal.3d 410, 418, 153 Cal.Rptr. 224, 591 P.2d 514, cert. den. 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117) permit a warrantless search of the passenger compartment of a car. Presently the law is that “(f)or constitutional purposes (there is) no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” (Chambers v. Maroney (1970) 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419; People v. Hill (1974) 12 Cal.3d 731, 751, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Laursen (1972) 8 Cal.3d 192, 202, 104 Cal.Rptr. 425, 501 P.2d 1145; see also Texas v. White (1975) 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209; Wimberly, supra.) Inasmuch as the officers in the instant case had probable cause to believe that evidence pertaining to the shootings lay in Johnson's car, they were entitled to search it immediately in order to preserve that evidence. Obviously the mobility of the car, the vulnerability of the shells to seizure by third persons, the lateness of the hour, and the fact that Johnson was still at large constituted circumstances justifying as objectively reasonable an immediate warrantless search. (Cf. Wimberly, supra; People v. Dumas (1973) 9 Cal.3d 871, 884-885, 109 Cal.Rptr. 304, 512 P.2d 1208; see also People v. Gale (1973) 9 Cal.3d 788, 795-796, 108 Cal.Rptr. 852, 511 P.2d 1204.)

Entry into Nora Mollique's House to Arrest Johnson

The police found Johnson's car in the driveway of his parents' house some 75 minutes after the shooting. After permitting them to search his house, Johnson's father informed the police that his son “stays with a girl named Nora Mollique” and gave them her address. The officers proceeded directly to Mollique's house. When she came to the door they informed her that they were looking for Reggie Johnson for an attempted murder and that they believed he was inside. Mollique consented to allow the officers in to search the house, whereupon they discovered Johnson asleep in bed and the weapon used in the shooting nearby.

Johnson moved to suppress the gun citing People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333, which held that warrantless arrests within the home are per se unreasonable in the constitutional sense in the absence of exigent circumstances.[FN3] (See also Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.) The Ramey court stated: “In this context, ‘exigent circumstances' means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.” (16 Cal.3d at p. 276, 127 Cal.Rptr. 629, 545 P.2d 1333.)

Ramey, however, did not narrow the “hot pursuit” exception to the warrant requirement. (Warden v. Hayden (1967) 387 U.S. 294, 298-299, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782; People v. Gilbert (1965) 63 Cal.2d 690, 706, 47 Cal.Rptr. 909.) The court clarified this in People v. Escudero (1979) 23 Cal.3d 800, 153 Cal.Rptr. 825, 592 P.2d 312, reiterating that “in appropriate circumstances the fresh pursuit of a fleeing felon may constitute a sufficiently grave emergency to justify an exception to the warrant requirement and make it constitutionally reasonable for the police to enter a private dwelling without prior authorization of a magistrate.” (Id., at p. 808, 153 Cal.Rptr. 825, 592 P.2d 312.) In Escudero the defendant was interrupted while burglarizing a house, was chased, escaped, and the police were called. The police searched unsuccessfully in the area where the defendant had last been seen, learned the defendant's probable address based on the registration of the getaway car, and proceeded there directly, arriving approximately one hour after first learning of the burglary. A unanimous Supreme Court upheld the warrantless entry into the defendant's house on the grounds of “fresh pursuit.” The court agreed that “ ‘fresh pursuit’ of a fleeing felon must be substantially continuous and afford the law enforcement authorities no reasonable opportunity to obtain a warrant,” but it rejected the contention that the suspect must “be kept physically in view at all times.” It also rejected the contentions that the defendant's return home made it unlikely that he would try to flee, or that the police had no reason to believe the defendant armed and dangerous. The court stated: “Throughout the events in question the police were pursuing a man whom they suspected of having broken into an occupied private home in the middle of the night to commit a burglary; this is a serious crime, with an ever-present potential for exploding into violent confrontation. The need to prevent the imminent escape of such an offender is clearly an exigent circumstance within the doctrine here invoked.” (23 Cal.3d at pp. 810-811, 153 Cal.Rptr. 825, 592 P.2d 312.) In addition, in People v. Frierson (1979) 25 Cal.3d 142, 169, 158 Cal.Rptr. 281, 599 P.2d 587, the Supreme Court indicated that suspicion that a suspect is an armed killer constitutes an exigent circumstance permitting warrantless entry to effect an arrest.

The entry and arrest in the instant case were effected less than two hours following commission of a violent crime during which time the suspect was continuously pursued. Numerous cases, in addition to those already cited, support our conclusion that the search and seizure were justified.[FN4] The trial court properly denied the motion to suppress.

Implied Malice Instruction

“Murder is the unlawful killing of a human being with malice aforethought.” (Pen.Code, s 187, subd. (a).) The jury was given the following portion of CALJIC No. 8.11 in explanation of the concept of malice: “ ‘Malice’ may be either express or implied. (P) Malice is express when there is manifested an intent unlawfully to kill a human being. (P) Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness.” Appellant contends that the foregoing suffers from the same flaw identified in People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 and People v. Heffington, supra, 32 Cal.App.3d 1, 12-13, 107 Cal.Rptr. 859.

Ireland and Heffington concerned the final paragraph of CALJIC No. 8.11 which provides: “Malice is implied when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.” To limit the application of the felony-murder rule and its effect of relieving the jury of its usual duty of finding actual malice, in Ireland the Supreme Court held that a jury could not be instructed that it could automatically infer malice from a felony when the felony formed an integral part of the murder with which the defendant was charged. In such a situation, the court held, the defendant was really charged with murder, not felony-murder. Following Ireland, the court of appeal in Heffington held that in a case in which the defendant is charged with assault with intent to commit murder, actual malice could not be implied from the mere fact that an assault occurred without violating Ireland.

In the instant case the jury was not given that portion of CALJIC No. 8.11 found objectionable in Ireland and Heffington. It was not instructed that it could infer malice solely on the basis of a proscribed act. Rather, the jury was instructed that it had to find an actual mental intent; that appellant committed the proscribed act “for a base, antisocial purpose and with a wanton disregard for human life ” This instruction did not relieve the jury of its obligation to find actual malice.[FN5] The instruction was proper.

Entitlement to Instructions on Provocation and Voluntary Manslaughter

Assault with intent to commit murder (Pen.Code, s 217)[FN6] is one form of attempted murder. (People v. Montano (1979) 96 Cal.App.3d 221, 232, 158 Cal.Rptr. 47; People v. Gray (1979) 91 Cal.App.3d 545, 558, 154 Cal.Rptr. 555; People v. Heffington, supra, 32 Cal.App.3d 1, 12, 107 Cal.Rptr. 859.) Intent to commit murder requires proof of actual malice. When an attempt to kill is the result of “a sudden quarrel or heat of passion,” as those terms are defined by law, the killing is by definition without malice and the crime is reduced to attempted voluntary manslaughter (Pen.Code, ss 192, 664),[FN7] a lesser-included offense of assault with intent to commit murder. (Heffington, supra, 32 Cal.App.3d at pp. 11-12, 107 Cal.Rptr. 859.) Johnson contends, with merit, that the trial court erred in failing to issue jury instructions defining provocation and attempted voluntary manslaughter even though Johnson requested no such instructions.

In People v. Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913, the Supreme Court stated the applicable rules. “Unlike the rule obliging the court to instruct on lesser included offenses and to give requested instructions whenever there is ‘any evidence deserving of any consideration whatsoever’ (People v. Carmen (1951) 36 Cal.2d 768, 773, 228 P.2d 281 ), the duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case ” (10 Cal.3d at pp. 715-716, 112 Cal.Rptr. 1, 518 P.2d 913.) “Before a court must instruct sua sponte on voluntary manslaughter in the heat of passion as a lesser offense included within murder there must be either some evidence that heat of passion was present at the time of the killing or some reason for the court to know that the defendant is relying on that theory of manslaughter as a defense.” (Id., at p. 719, 112 Cal.Rptr. 1, 518 P.2d 913.)

It is unnecessary to pause more than briefly over these limitations. From the prosecutor's case alone the evidence of provocation was overwhelming and the direct evidence that Johnson acted in the heat of passion, though limited to Johnson's recorded allusion to his “paranoia,” was sufficient, in the larger context, to meet Sedeno's requirement that “some evidence” of heat of passion be shown. The jury in the instant case lawfully could have found that Mata used highly offensive language to Johnson, that Mata and at least one other man acted in an ugly and physically threatening manner, and that such conduct provoked Johnson and would have provoked a reasonable person to fear or anger sufficient to lead to the rash, non-deliberative act of violence that occurred.[FN8] In addition, the fact that Johnson was pleading self-defense, rather than being “inconsistent” with a theory of attempted voluntary manslaughter, should have alerted the trial court to the need to instruct the jury on the latter theory. Given the facts of this case it was clearly the jury's function to decide whether legal provocation and heat of passion resulted in the offense in question. (People v. Berry (1976) 18 Cal.3d 509, 515, 134 Cal.Rptr. 415, 556 P.2d 777.) Indeed it is not farfetched to suggest that had the jury been permitted to decide whether Johnson's conduct or acts jointly operated with actual malice or were in union with heat of passion it is highly likely that Johnson would have been convicted of the lesser offense.

Thus, this case (as regards the alleged Penal Code section 217 violation) becomes one in which the trial court failed to instruct on all of the general principles of law governing the case, i. e., those principles closely and openly connected with the facts before the court which were necessary for the jury's understanding of the case. (See People v. Sedeno, supra, 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.) The question we must answer is whether the Sedeno error in this instance resulted in a miscarriage of justice requiring reversal. (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) We are in agreement that the record reflects Sedeno error. However, our colleague the Honorable Robert L. Dossee is of the opinion that the error was invited.

Sedeno's teaching is that “(t)he obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.” (At p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.) Now, it is true, however, that failure to fully instruct on lesser and included offenses (herein attempted voluntary manslaughter), because of the defense's strenuous objection thereto, will relieve the court of its continual obligation to instruct on the general principles of law relevant to the issues raised by the evidence. (See People v. Phillips (1966) 64 Cal.2d 574, 581, 51 Cal.Rptr. 225, 414 P.2d 353.) In that event the record reveals an overt expression of defense tactics; it is then said that the error still “exists,” but will not be reviewed because it was “waived” or “invited” by the defense.

The record we review is devoid of any suggestion that the defense objected to instructions embodying the principles of attempted voluntary manslaughter as a matter of trial strategy or tactics. Likewise, there is no suggestion that defense counsel “requested” that the court omit the instruction or “acceded” to the omission.

The record does contain several defense objections to the court's proposed instructions, only one of which having to do with “implied malice,” is raised and reviewed in this appeal.

It is a fact that defense counsel did request a single lesser included offense, to wit, exhibiting a firearm (Pen.Code, s 417). The record reveals that immediately after the court ruled that the People were entitled to rely on either express or implied malice to prove assault with intent to commit murder, the following transpired: “You indicated that you wanted to oh, by the way, before I turn to that, am I correct, Mr. Egan, that you have requested and submitted instructions on one lesser included offense, to wit, 417, penal code, exhibiting a firearm. (P) MR. EGAN: That's correct.”

Assuming arguendo that the above-quoted passage demonstrates that defense counsel “focused” in on “lesser-included offenses” with “comprehensive familiarity with the Heffington opinion,‘ [9 ] we cannot conclude therefrom that ”counsel waived any error on the part of the trial court in omitting the theory of attempted voluntary manslaughter and should not be able to successfully complain of such error on appeal.“[FN10]

On review the case law dictates that this court must assume that counsel failed herein to request the required instruction because of neglect or mistake. (See People v. Tidwell (1970) 3 Cal.3d 82, 87, 89 Cal.Rptr. 58, 473 P.2d 762.) And we are bound to accommodate that assumption until the cold record reveals an unequivocal expression of counsel's tactical decision to forego the required instruction. (See People v. Graham (1969) 71 Cal.2d 303, 318, 78 Cal.Rptr. 217, 455 P.2d 153.)

Actually, the reason the trial court did not instruct is in the record. We quote Honorable William (“Bill”) R. Channell's reasons for denying defendant's motion for a new trial: “In any event, it's my opinion that I was not required, sua sponte, to give attempted voluntary manslaughter under the defense as I heard it developed. I did not hear any evidence, unlike Heffington, that the defendant had diminished capacity or was intoxicated or that his state of mind was other than as a normal person who was, according to the defense theory of the case, acting normally under the then existing circumstances. And as I understood the defense, self-defense was what the defense was relying on and lack of any criminal intent, so I am ruling that the Court was not required to give that instruction sua sponte and for those reasons the motion for new trial is denied.”

Of course hereinabove we have decided that Judge Channell's “opinion” is in error; that the evidence of provocation or heat of passion was sufficient to meet Sedeno's requirements. Additionally, we have determined that defendant's self-defense theory was not inconsistent with a theory of attempted manslaughter.

The record we review compels the conclusion that defense counsel did nothing therein to relieve the trial court of its duty to instruct the jury on the law of attempted voluntary manslaughter. Consequently, appellant will be heard to complain that he has been denied a fundamental constitutional right to have his jury determine every material issue presented by the evidence. In People v. Wilson (1967) 66 Cal.2d 749, 764, 59 Cal.Rptr. 156, 427 P.2d 820, it is taught that “the denial of such a fundamental right cannot be cured by section 13 of article VI of the California Constitution for the denial of such a right is in itself a miscarriage of justice within that section.” Moreover, we are of the opinion that in the absence of the error (Sedeno) there is a reasonable probability that a result more favorable to appellant would have been reached. (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.)

The judgment convicting appellant of violating Penal Code section 217 is reversed. The judgment convicting appellant of violating Penal Code section 245, subdivision (a), is affirmed.[FN11]

I concur in the judgment. I write separately solely with regard to the issue of invited error on the failure to instruct on the lesser-included offense of attempted voluntary manslaughter.

As I read the record, it appears to me that the reasonable inference to be drawn therefrom is that defense counsel, as a matter of tactics, knowing that attempted voluntary manslaughter was a lesser-included offense, did not desire to give the jury an opportunity to convict the defendant of that felony. Rather, what he was after was a complete acquittal or a misdemeanor verdict (exhibiting a firearm, Pen.Code, s 417, subd. (a)) for which he submitted an instruction.

It seems clear from the sequence of cases, People v. Phillips (1966) 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Graham (1969) 71 Cal.2d 303, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Mosher (1969) 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Tidwell (1970) 3 Cal.3d 82, 89 Cal.Rptr. 58, 473 P.2d 762; People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913, that where there is error by failing to instruct on a lesser-included offense, the error will be deemed to be invited error only where the defense counsel expressly objects to the giving of such an instruction and when the objection is deliberate, i. e., as a matter of trial tactics. We are, of course, bound by the decisions of the Supreme Court. Because, in the case at bench, there was no express objection to giving an instruction on attempted voluntary manslaughter, the error in failing to so instruct was not invited and, therefore, the error is reversible under settled principles of law.

This case is an example of the unfortunate consequence of the iron rule of invited error. Defense counsel knew, we believe, that attempted voluntary manslaughter was an included offense but he submitted no request for such an instruction. Why should he? If there were an acquittal of the offense charged, his client was home free. On the other hand, if his client were convicted of the offense charged, there was “built-in” reversible error if the instruction on the lesser-included offense had not been given. Finally, if the trial judge was sufficiently alert and gave the instruction on the lesser-included, sua sponte, defendant was no worse off than if he had requested such an instruction.

So long as there is a doctrine of invited error, why must the “invitation” be express? Why is it not sufficient if, from the record, inferentially, the “invitation” was deliberate?

I dissent only to the reversal of the judgment of conviction for assault with intent to commit murder (Pen.Code, s 217). I believe that the record sufficiently demonstrates that defense counsel deliberately did not request instructions on the lesser included offense of attempted voluntary manslaughter and therefore waived any error of the trial court in failing to instruct on that theory.

As trial judges are well aware, in cases in which a jury might feel that the pleaded offense charges the defendant with too much, defense counsel commonly seek no instructions on lesser included crimes in the hope that the inequity will produce a verdict of acquittal. Such a strategy is particularly predictable in a case, such as the instant case, where the defendant is already formally charged with a lesser offense, in this case assault with a deadly weapon (Pen.Code, s 245, subd. (a)), since the jury has the assurance that acquittal on the murder charge will not set the defendant free.

Addressing what is a delicate and difficult matter for defense attorneys, the Supreme Court has not hesitated in setting forth the principles that must guide the courts:

The state has no interest in a defendant obtaining an acquittal where he is innocent of the primary offense charged but guilty of a necessarily included offense. Nor has the state any legitimate interest in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense. Likewise, a defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth.

(People v. St. Martin (1970) 1 Cal.3d 524, 533, 83 Cal.Rptr. 166, 463 P.2d 390.) Consequently, the court has balanced the competing interests in the following way. When the evidence warrants instructions on lesser included offenses the trial court is obliged to give such instructions even though defense counsel requests none. This is true to the proposition that our courts are not “gambling halls.” For the same reason “(t)he obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.” (People v. Sedeno (1974) 10 Cal.3d 703, 716, fn. omitted, 112 Cal.Rptr. 1, 518 P.2d 913.) However, a defendant is not entitled to two jury trials. If for a “deliberate tactical purpose” (People v. Graham (1969) 71 Cal.2d 303, 319, 78 Cal.Rptr. 217, 455 P.2d 153) defense counsel resists an instruction on a lesser included offense, the court's error in honoring counsel's election will not be a ground for reversal but will be deemed “invited error” or a waiver of that lesser included offense. (People v. Sedeno, supra, 10 Cal.3d at p. 716, fn. 7, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Graham, supra, 71 Cal.2d 303, 319, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Phillips (1966) 64 Cal.2d 574, 580-581, fn. 4, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Marchialette (1975) 45 Cal.App.3d 974, 982, 119 Cal.Rptr. 816; People v. Gonzales (1972) 28 Cal.App.3d 1091, 1096-1097, 104 Cal.Rptr. 530; People v. Stearns (1971) 14 Cal.App.3d 178, 184, 92 Cal.Rptr. 69; People v. Helfend (1969) 1 Cal.App.3d 873, 882-883, 82 Cal.Rptr. 295.) The question here is whether such a waiver or “invited error” must be expressed in words even though it is shown by the record to be deliberate.

The concurring opinion herein agrees that the defense counsel knew that attempted voluntary manslaughter was an included offense and that defense counsel deliberately did not request an instruction on that theory for tactical reasons. However, that opinion goes on to concur with the analysis given by Justice Clinton W. White in requiring that the invitation or waiver of the instruction be actually expressed in words by defense counsel. In reaching this conclusion, my colleagues have relied upon the cases of People v. Phillips (1966) 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Graham (1969) 71 Cal.2d 303, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Mosher (1969) 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Tidwell (1970) 3 Cal.3d 82, 89 Cal.Rptr. 58, 473 P.2d 762 and People v. Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913. None of these cases supports an “iron rule” that the invitation or waiver must be expressed in all cases, regardless of other circumstances which show a deliberate plan by trial counsel.[FN1]

In People v. Phillips, supra, 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353, the court found invited error because counsel strongly opposed an instruction and articulated that it was tactically to defendant's advantage not to give it. In People v. Sedeno, supra, 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913, the Court merely points out that failure to give a sua sponte instruction over objection does not require reversal “ since the error is invited.” Nowhere in Phillips or Sedeno does the court suggest that in all cases there must be an expression or an objection articulated in order to constitute invited error.

Nor does the case of People v. Tidwell, supra, 3 Cal.3d 82, 87, 89 Cal.Rptr. 58, 473 P.2d 762, relied upon by my colleagues, speak to the necessity of expression. Instead it states “ In the absence of anything in the record disclosing that counsel had ‘a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction,’ we must assume that counsel merely failed to request the additional instructions because of neglect or mistake, which would be insufficient to nullify the trial court's obligation to properly instruct the jury on all the issues presented in that case. (People v. Mosher, supra, 1 Cal.3d 379, 393, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Graham, supra, 71 Cal.2d 303, 320, 78 Cal.Rptr. 217, 455 P.2d 153; see People v. Wilson, supra, 66 Cal.2d 749, 762-763, 59 Cal.Rptr. 156, 427 P.2d 820; People v. Phillips, supra, 64 Cal.2d 574, 581, 51 Cal.Rptr. 225, 414 P.2d 353.)” (Emphasis added.)

In People v. Graham, supra, 71 Cal.2d 303, 320, 78 Cal.Rptr. 217, 455 P.2d 153, and People v. Mosher, supra, 1 Cal.3d 379, 393, 82 Cal.Rptr. 379, 461 P.2d 659, the court stated that ‘’ if defense counsel suggests or accedes to the erroneous instruction because of neglect or mistake, we do not find ‘invited error‘; only if counsel expresses a deliberate tactical purpose in suggesting, resisting or acceding to an instruction, do we deem it to nullify the trial court's obligation to instruct in the cause.’‘ Both of those cases are distinguishable from the facts before us. In each of those cases defense counsel would have desired the proper instructions but failed to submit them and in each case the court made a finding that counsel's failure was brought about through ignorance, neglect or mistake.

The opinions of my colleagues appear to have lost sight of the rationale underlying the trial court's duty to give sua sponte instructions. “(T)he sua sponte ‘rule seems undoubtedly designed to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries of ineptness of counsel under the adversary system. Yet the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly ’ ” (People v. Flannel (1979) 25 Cal.3d 668, 683, 160 Cal.Rptr. 84, 603 P.2d 1; People v. Wade (1959) 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116.) “The duty of the trial court involves percipience not omniscience.” (People v. Cram (1970) 12 Cal.App.3d 37, 41, 90 Cal.Rptr. 393.)

While words are sometimes necessary to express the meaning of an act or omission, often the act or omission itself, within a given context, will sufficiently convey its meaning. When the meaning can be understood without words, words should no longer be essential. What is essential for the protection of the defendant is not that his attorney used the correct words in either objecting to or waiving certain instructions but that the reviewing court be satisfied that counsel's failure to request the omitted instructions was deliberate and was not the result of “neglect or mistake” (People v. Gainer (1977) 19 Cal.3d 835, 842, fn. 2, 139 Cal.Rptr. 861, 566 P.2d 997; People v. Tidwell, supra, 3 Cal.3d 82, 87, 89 Cal.Rptr. 58, 473 P.2d 762; People v. Mosher, supra, 1 Cal.3d 379, 393, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Graham, supra, 71 Cal.2d 303, 319, 78 Cal.Rptr. 217, 455 P.2d 153; or “the possible vagaries of ineptness of counsel ” (People v. Flannel (1979) 25 Cal.3d 668, 683, 160 Cal.Rptr. 84, 603 P.2d 1).) We have that assurance in this case.

First, there is no doubt that defense counsel focused his attention on the subject of lesser included offenses. The record shows that he requested and received an instruction on the offense of exhibiting a firearm, a misdemeanor (Pen.Code, s 417). Furthermore, the trial court asked counsel on the record whether he was requesting but the single instruction and counsel replied that he was. At the hearing on the defendant's motion for a new trial, in which it was urged that the court had erred in not instructing on attempted voluntary manslaughter, the court reminded counsel of the foregoing exchange. Counsel replied in part: “(I)n this particular case, though I wasn't going to stand up in front of the jury and argue that they ought to make a finding on attempted voluntary manslaughter because of the fact that I felt they should have reached a not guilty verdict, that doesn't mean that that instruction or that alternative should not have been made available to the jury.”

Finally, though nowhere in the record did defense counsel expressly indicate his knowledge that attempted voluntary manslaughter was a lesser offense included within assault with intent to murder, it is apparent that he had such knowledge. Four days prior to trial, for instance, counsel submitted a memorandum in which he argued, successfully, that Johnson had to be charged with assault with intent to murder in lieu of attempted murder since the latter was an offense included within the former and yet prescribed a greater penalty. In addition, one of the cases cited by counsel, and one on which he relied heavily in a separate argument made at trial, was People v. Heffington (1973) 32 Cal.App.3d 1, 107 Cal.Rptr. 859. Heffington stands out as the single appellate decision in California that discusses at length the lesser included relationship of attempted voluntary manslaughter and assault with intent to murder. Indeed Heffington held that where a defendant is charged with assault with intent to murder and the evidence supports instructions on provocation and heat of passion, it is the duty of the court to instruct on attempted voluntary manslaughter. (Id., at pp. 11-12, 107 Cal.Rptr. 859.) Given counsel's comprehensive familiarity with the Heffington opinion, he must have been familiar with the foregoing aspect of it. Underscoring this is the fact that two weeks after the verdict was rendered in this case, counsel sought a new trial based on the very passage in Heffington to which we refer.

In conclusion, I agree with the concurring opinion to the extent that it concludes that counsel did have a deliberate tactical purpose in not requesting the omitted instruction. I believe, however, that by not requesting the instruction under the circumstances related above, counsel waived any error on the part of the trial court in omitting the theory of attempted voluntary manslaughter and should not be able to successfully complain of such error on appeal. To hold otherwise rewards a type of gamesmanship that reduces a jury trial to nothing more than a meaningless preface to appeal.

FOOTNOTES

1.  The recording may have been somewhat unintelligible. The court reporter notes: “The portion of the tape being played is reported and transcribed to the best of my ability and is not certified as being a verbatim record.”

2.  See, e. g., the practical explanation given in Arkansas v. Sanders (1979) 442 U.S. 753, 765, fn. 14, 99 S.Ct. 2586, 2594, fn. 14, 61 L.Ed.2d 235, 246, fn. 14.

3.  Appellant has never asserted that the police lacked probable cause to believe he was in Mollique's house and respondent has never interposed Mollique's consent to validate the entry. We therefore do not address these matters.

4.  People v. Smith (1966) 63 Cal.2d 779, 795-797, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Gilbert (1965) 63 Cal.2d 690, 705-707, 47 Cal.Rptr. 909, 408 P.2d 365, vacated on other grounds 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; People v. Superior Court (Dai-re) (1980) 104 Cal.App.3d 86, 90, 163 Cal.Rptr. 417; People v. Patino (1979) 95 Cal.App.3d 11, 31, 156 Cal.Rptr. 815; People v. Patterson (1979) 94 Cal.App.3d 456, 464, 156 Cal.Rptr. 518; People v. Cornejo (1979) 92 Cal.App.3d 637, 652, 155 Cal.Rptr. 238.Distinguish People v. Williams (1979) 93 Cal.App.3d 40, 58, 155 Cal.Rptr. 414 (no probable cause to exceed scope of consent) and James v. Superior Court (1978) 87 Cal.App.3d 985, 990, 151 Cal.Rptr. 270 (robber did not pose danger to human life).

5.  We do not agree with the suggestion of the court in People v. Martinez (1980) 105 Cal.App.3d 938, 943, 165 Cal.Rptr. 11, that a conviction under Penal Code section 217 must be based on a finding of “express malice” and that “the CALJIC committee has apparently misinterpreted Heffington ” To be sure, a jury must find actual malice, but that state of mind may be inferred.

6.  Penal Code section 217 provides: “Every person who assaults another with intent to commit murder, is punishable by imprisonment in the state prison for two, four, or six years.”

7.  Penal Code section 192 provides in pertinent part: “Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds: 1. Voluntary upon a sudden quarrel or heat of passion ”Penal Code section 664 provides in pertinent part: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts.”

8.  In People v. Flannel (1979) 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1, the Supreme Court held that an unreasonable belief that deadly force is required in self-defense can also reduce murder to manslaughter. This rule is not retroactive but will govern the retrial if one occurs herein. (Id., at p. 683, 160 Cal.Rptr. 84, 603 P.2d 1.)

9.  See dissenting opinion, p. 482.

10.  See dissenting opinion, p. 482.

11.  In the event that the prosecution elects to retry the Penal Code section 217 count, appellant would be entitled to instructions embodying the principle of unreasonable belief in self-defense per People v. Flannel (1979) 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1.In the event that the prosecution foregoes retrial, the trial court will, of course, render and enter judgment on the verdict convicting appellant of assault with a deadly weapon.

1.  See concurring opinion herein at pp. 478-479.

WHITE, Presiding Justice.