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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul E. THOMAS, Defendant and Appellant.


Decided: February 22, 1985

Randy Montesano, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., William D. Stein, Edward P. O'Brien, Asst. Atty. Gen., San Francisco, for plaintiff and respondent.

Paul E. Thomas appeals from an order granting probation 1 after a jury verdict finding him guilty of involuntary manslaughter (former Pen.Code, § 192, subd. 2.) 2 with gun use (Pen.Code, § 12022.5).   We affirm.


The pertinent facts are as follows:  One evening in 1981, Danita R., appellant's former lover and the mother of his daughter, was at a nightclub with a girl friend, Valerie.   The two women got a ride home with Tommy Myers and a man named Joe.   Tommy drove his van to Valerie's house where they all stayed for about an hour and a half.   Tommy then agreed to drive Danita to her home.   On the way, however, he drove to a hilly area, parked the car, and raped Danita.   He then took her home.   Although Danita did not report this incident to the police, she did tell her sisters about it.

The following morning, when appellant came by to pick up his daughter for the weekend, Danita did not tell him that she had been raped.   A few days later, when appellant returned to Danita's home to drop off his daughter, Danita did tell him about the rape.   When he asked her who did it, she told him that she “would take care of it.”

Appellant remained at Danita's house and went into the bedroom with his daughter and fell asleep.   Later that evening, Tommy knocked on the door.   Danita opened the door and had a conversation with Tommy in the doorway.   Tommy said, “Nita, why you going around telling that I raped you?”   Danita replied, “I ain't told nobody.   And you did rape me.”   Tommy then said, “That's all right, you going [sic] get yours.”

Meanwhile, appellant had come to the door and suggested that Tommy come inside to talk.   At the same instant, appellant saw Tommy step back and raise his shirt.   Appellant then noticed the outline of a gun under Tommy's shirt.   Appellant lunged at Tommy and managed to grab the gun.   A struggle then ensued over the gun.   Appellant and Tommy moved from the porch to the lawn.   Danita followed them outside and heard and saw a gunshot go off in the air.   When she then ran back into the house, she heard another gunshot.   Moments later, appellant entered the house, got his coat and shoes, and left.   As appellant was leaving the house, he saw Tommy knocking out some windows of the adjacent houses.   Appellant then drove to his brother's house.   Danita ran to a friend's house and called her mother to tell her that Tommy had been shot.

San Francisco Police Officers James Lassus and Douglas Hansen were the first to arrive at the scene.   They found the victim, Tommy, lying on his back in the grass with a gunshot wound in the stomach.   Although they searched the area, they did not find a gun.

An autopsy revealed that the victim died of one gunshot wound to the abdomen.   The entrance wound had gunpowder burns indicating that the muzzle of the weapon was within two feet of the victim when fired.   The victim's hands had lacerations consistent with his breaking a glass window.   Traces of powder residue were also found in one of the cuts of the victim's right hand.

Terry Coddington, a criminalist, examined the victim's clothing and found gunshot residue on his shirt.   Based on the residue, Coddington concluded that the weapon was fired at a distance not exceeding one foot.

Carl Douglas, a neighbor, testified that he was awakened by the first gunshot.   As he walked to the window, he heard another shot.   He then saw two men facing each other, about one foot apart, and a woman's silhouette in the doorway.   He saw a flash from the gun and heard another gunshot.   He saw one man fall to his knees, spring up, swirl around, and break several windows.   The other man went into a house, then came out of the house and left.   The neighbor could not recognize the faces of the two men.   He went to assist the fallen man and yelled to his wife to call an ambulance.


The information charged appellant with a “violation of [Penal Code] section 192.1” [192, subdivision 1] in that he did “wilfully, unlawfully, and with/o [sic ] malice aforethought kill Tommy Myers․”   Appellant contends that since that accusatory pleading specifically charged him with voluntary manslaughter in violation of Penal Code section 192, subdivision 1, it was improper for the jury to convict him of involuntary manslaughter, a violation of section 192, subdivision 2, because the latter offense is not a lesser included offense of the former.

 When a defendant pleads not guilty, the court has no jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime.   This principle has a constitutional basis:  due process requires that an accused be advised of the charges against him, so that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by the evidence at his trial.  (People v. Lohbauer (1981) 29 Cal.3d 364, 368, 173 Cal.Rptr. 453, 627 P.2d 183.)  Penal Code section 1159, which permits conviction of any offense “necessarily included” in the charged offense, is among Penal Code provisions which ensure that the defendant receives the constitutionally required notice.  (People v. Geiger (1984) 35 Cal.3d 510, 527, 199 Cal.Rptr. 45, 674 P.2d 1303.)   However, an offense may be charged in the words of the enactment describing the offense (Pen.Code, § 952), and in the usual case, an accusation pleaded in compliance with the requirements of section 952 provides sufficient notice to the defendant to withstand constitutional attack.  (People v. Yoshimura (1976) 62 Cal.App.3d 410, 416, 133 Cal.Rptr. 228.)   Appellant's contention and our colleague's dissent are based on the unstated premise that voluntary and involuntary manslaughter are two separate offenses within the meaning of sections 952 and 1159, a premise with which we disagree.

 A general charge of manslaughter is sufficient to uphold a conviction of either voluntary or involuntary manslaughter.  “By statutory definition, manslaughter is a single crime which can be committed in a variety of ways.  [Citation.]”  (People v. Wild (1976) 60 Cal.App.3d 829, 833, 131 Cal.Rptr. 713.)   Recently, in People v. Watson (1983) 150 Cal.App.3d 313, 198 Cal.Rptr. 26, the court declared, “Against the background of firmly established decisional law, logic dictates that for purposes of necessarily included offense analysis, manslaughter be regarded as a single offense with the separate subdivisions under section 192 merely defining the different circumstances under which an unlawful killing constitutes manslaughter, but not stating additional elements of the crime.   For purposes of necessarily included offense analysis, the elements of manslaughter as expressed in section 192 are the unlawful killing of a human being without malice.”   (Id., at pp. 321–322, 198 Cal.Rptr. 26, fn. omitted.)

We recognize that instead of generally charging appellant with manslaughter in violation of section 192, the information in this case charged him with a killing in violation of subdivision 1 of that section, which defines voluntary manslaughter.   However, we cannot agree that therefore the information failed to provide appellant with sufficient notice that he had been charged with either voluntary or involuntary manslaughter.   The Supreme Court rejected a similar argument long ago in People v. Pearne (1897) 118 Cal. 154, 50 P. 376.

In that case, defendant was charged by indictment with “deliberately, willfully, and unlawfully” killing a woman, and was convicted of involuntary manslaughter.   On appeal, defendant urged that there was a “fatal variance” between the indictment, which he claimed charged only voluntary manslaughter, and the verdict.   The Supreme Court held that the indictment charged both voluntary and involuntary manslaughter.  “If this indictment had simply charged an ‘unlawful killing,’ without malice, it would have charged the crime of manslaughter of both kinds, voluntary and involuntary.   By the additional words ‘deliberately and willfully,’ it certainly should not be held that it charges less than it did before those words were added.   An ‘unlawful killing’ is still charged, and such a killing constitutes involuntary manslaughter.   It might with the same reason be urged that under an indictment charging a killing with malice and premeditation a conviction for killing without malice and premeditation would not be sustained.   Yet it has always been held that upon an indictment charging murder a conviction for manslaughter was proper.   In other words, when an indictment charges murder it also charges manslaughter.   An indictment laid for murder charges an intentional killing;  yet, under the criminal practice and procedure in this state, there is no doubt but that a verdict of involuntary manslaughter would find support in such a pleading.   This is so because involuntary manslaughter is the ‘unlawful killing of a human being,’ and such crime is always included in an indictment for murder.”  (Id., at p. 157, 50 P. 376, emphasis added.)

 Similarly, in this case, we conclude that although the information included the word “wilfully” and referred to subdivision 1 of section 192, it did not charge less than it would have without those words.   An “unlawful killing without malice” was still charged, and such a killing constitutes involuntary manslaughter.   The accusatory pleading charged appellant with both voluntary and involuntary manslaughter.


Appellant also contends that the court erred in instructing on involuntary manslaughter over his objection.   The contention is without merit, as it is based on the theory that he was not charged with that offense.

 Appellant contends that the trial court erred in denying his motion for acquittal at the close of the People's case, pursuant to Penal Code section 1118.1.   In considering such a motion, the trial court must apply the same test as does this court when reviewing a judgment of conviction:  i.e., whether there is substantial evidence of the existence of each element of the crime charged.  (People v. Blair (1979) 25 Cal.3d 640, 666, 159 Cal.Rptr. 818, 602 P.2d 738.)   Witness Carl Douglas testified that he saw two men standing about a foot apart.   They were not struggling.   He saw a flash from a gun and heard a shot, and one of the men fell.   That evidence and the reasonable inferences from that evidence were sufficient to support a conviction of an intentional unlawful killing.   Therefore, the motion was properly denied.

 Appellant also contends that the trial court erred when, during the defense case, it sustained a hearsay objection to a question asking appellant's brother what appellant told him about the shooting.   Appellant contends that the testimony was admissible under the state of mind exception to the hearsay rule, to show that he fled immediately after the shooting because he was afraid of the police.   When the court sustained the prosecutor's hearsay objection, however, appellant did not inform the court that he was offering the testimony as an exception to the hearsay rule;  the record contains no offer of proof as to what the witness would have stated had he been permitted to answer.   Failure to make the offer of proof precludes consideration of the error on appeal.  (See, e.g., People v. Rodriquez (1969) 274 Cal.App.2d 770, 777, 79 Cal.Rptr. 240.)

 Appellant also complains that the prosecutor committed several instances of prosecutorial misconduct during argument.   First, focusing on two sentences out of context, he contends that the prosecutor improperly expressed his personal belief in appellant's guilt.   However, a reading of the entire argument indicates that the prosecutor was arguing what he believed the evidence showed;  that argument was proper.  (See People v. Green (1980) 27 Cal.3d 1, 35, and fn. 20, 164 Cal.Rptr. 1, 609 P.2d 468;  cf. People v. Bain (1971) 5 Cal.3d 839, 848, 97 Cal.Rptr. 684, 489 P.2d 564 [argument amounts to assertion that prosecutor's belief in defendant's guilt based on facts not presented at trial].)

In addition, appellant contends that it was misconduct for the prosecutor to comment, over appellant's objection, on his failure to offer his self-defense version of the incident prior to his arrest.

 However, prearrest silence may be commented upon absent a showing that the silence was an invocation of Fifth Amendment rights.  (Jenkins v. Anderson (1980) 447 U.S. 231, 237, 100 S.Ct. 2124, 2128, 65 L.Ed.2d 86;  People v. Redmond (1981) 29 Cal.3d 904, 910, 176 Cal.Rptr. 780, 633 P.2d 976;  People v. Free (1982) 131 Cal.App.3d 155, 165, 182 Cal.Rptr. 259.)   No such showing was made here.

 Finally, appellant contends that the prosecutor committed misconduct by suggesting that the jury owed a duty to society to convict appellant because someone was killed.   In particular, he objects to the following statement:  “And you see, in a homicide case I don't care what homicide case it is, when you have a homicide case and all the witnesses are not telling the truth—most of the witnesses are not telling the truth, you have to figure it out and you have to work a little harder.   And you have to come up with a just verdict, because it's just devastating to the administration of justice when a person is killed like that and there's no answer to it.”

Appellant did not object to this remark.   Had he done so, an admonition would have cured any harm resulting therefrom.   Accordingly, appellant is precluded from raising this point on appeal.  (People v. Green, supra, 27 Cal.3d at p. 27, 164 Cal.Rptr. 1, 609 P.2d 468.)

The judgment is affirmed.

I dissent.

The record indicates that at the preliminary hearing, the People asserted that appellant should be held to answer to a violation of either Penal Code section 187 (murder) or 192, subdivision 1 or 192, subdivision 2 (manslaughter).   The murder charge was dropped and appellant was held to answer on one count of violating Penal Code section 192, subdivision 1 (voluntary manslaughter).   The information accused appellant of a felony violation of Penal Code section 192.1 committed as follows:  “The said [defendant], on or about the 26th day of August, 1981 ․ did wilfully, unlawfully and without malice aforethought kill TOMMY MYERS, a human being.”

It is fundamental that “ ‘[w]hen a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime.  [Citations.]   This reasoning rests upon a constitutional basis:  “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.”  [Citation.]’ ”  (People v. Lohbauer, (1981) 29 Cal.3d 364, 368, 173 Cal.Rptr. 453, 627 P.2d 183;  People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409.)  Penal Code sections 950, 952, 1155 and 1159 ensure that the defendant receives the notice which a defendant is guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.  (People v. Geiger (1984) 35 Cal.3d 510, 527, 199 Cal.Rptr. 45, 674 P.2d 1303.)

The tests for determining whether one offense is a lesser included offense of another are:  (1) if under the statutory definition of the charged offense it cannot be committed without committing the lesser offense (the elements of the crime test);  or (2) if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed and therefore adequately warns the defendant that the People will seek to prove the elements of the lesser included offense (the accusatory pleading test).  (People v. Lohbauer, supra, 29 Cal.3d at pp. 368–369, 173 Cal.Rptr. 453, 627 P.2d 183.)1

Appellant argues that involuntary manslaughter is not a lesser included offense of voluntary manslaughter as voluntary manslaughter requires an intentional killing of a human being (Pen.Code, § 192, subd. 1) 2 while involuntary manslaughter is defined as a homicide committed without the intent to kill (Pen.Code, § 192, subd. 2).   Thus, appellant contends, an intentional killing by definition necessarily excludes any un intentional killing.   We agree.

In People v. Lohbauer, supra, 29 Cal.3d 364, 369–372, 173 Cal.Rptr. 453, 627 P.2d 183, defendant was charged with burglary (Pen.Code, § 459) but was convicted of the misdemeanor of entering a noncommercial dwelling without the consent of the owner (Pen.Code, § 602.5).   The misdemeanor was not a necessarily included offense of burglary under either the elements test or the accusatory pleading test.   The People, in Lohbauer, urged the court to adopt as a new test for necessarily included offenses which would hold immaterial any variance between an offense charged and a lesser included offense of which a defendant is convicted unless the defendant was “ ‘misled to his prejudice’ and ‘prevented from preparing an effective defense.’ ”   Specifically the People urged that evidence offered at the preliminary hearing could supplement the accusatory pleading so as to put the defendant on notice of additional necessarily included offenses.   The court reasoned that the proposed new test would be irrevocable and unfair and disapproved People v. Collins (1960) 54 Cal.2d 57, 4 Cal.Rptr. 158, 351 P.2d 326 and People v. Cole (1979) 94 Cal.App.3d 854, 155 Cal.Rptr. 892.  (People v. Smith (1984) 155 Cal.App.3d 1103, 1156, 203 Cal.Rptr. 196.)   Subsequently, the court expressly rejected this approach and recently rejected a similar contention when it applied the Lohbauer rule to a juvenile.  (In re Robert G. (1982) 31 Cal.3d 437, 442, 182 Cal.Rptr. 644, 644 P.2d 837.)

The Lohbauer court continued that even if Penal Code section 1159 were susceptible of an interpretation compatible with the standard proposed by the People, serious due process problems would be raised.  “It may be very difficult to ascertain from developments which occur during trial whether a defendant [was] ‘misled to his prejudice’ and ‘prevented from preparing an effective defense.’   It may never be known with any confidence after a conviction what defenses might have been asserted had defendant been given adequate and advance notice of the possible offenses for which he was criminally vulnerable.   Insisting that he be informed in the accusatory pleading of the charges against him, on the other hand, fully satisfies a well established fundamental of due process.”  (People v. Lohbauer, supra, 29 Cal.3d at p. 370, 173 Cal.Rptr. 453, 627 P.2d 183, emphasis added.)

In Lohbauer, the People also urged that defense counsel should have been aware of the specific conduct upon which the accusation was based from the evidence offered at the preliminary hearing on the burglary charge, and therefore, the defendant could not have been misled as to the possibility of his conviction of the uncharged offense of unauthorized entry.   Our Supreme Court also rejected this argument and held that where the actor's state of mind is an essential element of the offense, notice of conduct alone cannot be said fairly to forewarn a defendant of other specific crimes which may be proven against him.  (Id., at p. 370, 173 Cal.Rptr. 453, 627 P.2d 183.)

Similarly, here appellant was charged only with Penal Code section 192.1, voluntary manslaughter, a crime which requires a certain mental state—provocation by quarrel or heat of passion and the intent to kill.   Involuntary manslaughter, on the other hand, is an unlawful killing which does not require the intent to take a life.  (People v. Horn (1974) 12 Cal.3d 290, 299, 115 Cal.Rptr. 516, 524 P.2d 1300;  People v. Germany (1974) 42 Cal.App.3d 414, 419, 116 Cal.Rptr. 841.)   The record indicates that the trial court instructed the jury on the need to find specific intent to kill in order to find the defendant guilty of voluntary manslaughter.   Over a defense objection 3 the court further instructed that in the absence of specific intent to kill, the jury could still find the defendant guilty of the lesser included crime of involuntary manslaughter (CALJIC No. 8.45),4 which requires only a general criminal intent to do the act done.5  Thus, here, as in Lohbauer, supra, the actor's state of mind is an essential element of the charged offense.   Therefore, I would conclude that involuntary manslaughter is not a lesser included offense of voluntary manslaughter under the “elements of the crime” test.

The People, however, contend that the accusatory pleading test was met.   The People argue that appellant was charged with the crime of manslaughter, which can be committed in many different ways, and that the subdivisions of Penal Code section 192 simply define the different circumstances under which manslaughter may be committed.   I do not agree.   This approach makes sense only when the charge is murder, and therefore includes voluntary and involuntary manslaughter.  (Stone v. Superior Court (1982) 31 Cal.3d 503, 517, 183 Cal.Rptr. 647, 646 P.2d 809.)   Trial courts distinguish on the basis of the evidence presented whether in a murder prosecution a particular type of manslaughter instruction is justified or required.  (People v. Wickersham (1982) 32 Cal.3d 307, 325–326, 185 Cal.Rptr. 436, 650 P.2d 311.)  “This flexibility in murder cases would be unduly circumscribed were the various subdivisions of section 192 deemed to state additional elements of the particular type of manslaughter therein described.”  (People v. Watson (1983) 150 Cal.App.3d 313, 323, 198 Cal.Rptr. 26.)

While the People were not required to make an election between voluntary and involuntary manslaughter in charging appellant with manslaughter (People v. Wild (1976) 60 Cal.App.3d 829, 833, 131 Cal.Rptr. 713), they chose to do so here.   Once the People make such an election, they are precluded from changing their minds midstream without moving to amend the information.   Appellant here had no notice that the prosecution was proceeding on any theory of involuntary manslaughter until the time of the final argument.   Appellant prepared his defense on the theory that the case was either “voluntary or nothing.”   Accordingly, I can only conclude that the information here also did not meet the accusatory pleading test.

Because involuntary manslaughter violation of Penal Code section 192.2 was neither charged nor necessarily included I think that within the voluntary manslaughter charge (Pen.Code, § 192, subd. 1), appellant's conviction of the lesser offense may not be sustained, whether or not there was evidence at his trial to show that he had committed that offense.  (People v. Lohbauer, supra, 29 Cal.3d at p. 369, 173 Cal.Rptr. 453, 627 P.2d 183;  In re Hess (1955) 45 Cal.2d 171, 175, 288 P.2d 5.)

I would remand with directions to dismiss the information since defendant has been acquitted of the charge of voluntary manslaughter .  “ ‘[A] conviction or acquittal of a lesser included offense is a bar to a subsequent prosecution for the greater included offense.  [Citation.]’ ”  (People v. Lohbauer, supra, 29 Cal.3d at p. 372, 173 Cal.Rptr. 453, 627 P.2d 183.)  “Further, when a trier of fact convicts a defendant of what it mistakenly views as a necessarily included offense, as here, its judgment still constitutes an implied acquittal of the greater offense charged.”  (Id., at p. 372, 173 Cal.Rptr. 453, 627 P.2d 183.)   Furthermore, double jeopardy protections prevent appellant from being retried on the same charge.  (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 606, 119 Cal.Rptr. 302, 531 P.2d 1086.)

Similarly, any retrial on the previously uncharged involuntary manslaughter court is barred.  “Unless joinder is prohibited or severance permitted for good cause (§ 954), all offenses of which the prosecution is or should be aware which arise out of the same act or course of conduct must be prosecuted in a single proceeding.  ‘Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.’  (Kellett v. Superior Court [1966] 63 Cal.2d 822, 827 [48 Cal.Rptr. 366, 409 P.2d 206].)”  (People v. Lohbauer, supra, 29 Cal.3d at p. 373, 173 Cal.Rptr. 453, 627 P.2d 183.)


1.   We construe the in propria persona notice of appeal from the conviction and sentence to be properly taken from the order granting probation.  (See Pen.Code, § 1466.)

2.   All subsequent references to Penal Code section 192 are to the version in effect at the time of appellant's offense.

1.   The use allegation is not considered in determining lesser included offense.  (People v. Wolcott (1983) 34 Cal.3d 92, 101–102, 192 Cal.Rptr. 748, 665 P.2d 520.)

2.   Penal Code section 192 provides so far as pertinent:“Manslaughter is the unlawful killing of a human being, without malice.   It is of three kinds:  [¶] (a) Voluntary—upon a sudden quarrel or heat of passion.  [¶] (b) Involuntary—in the commission of an unlawful act, not amount to felony;  or in the commission of a lawful act which might produce death, in an unlawful manner, or without due causation and circumspection․  [¶] 3. [In the] driving [of] a vehicle․”

3.   While the precise language used by defense counsel is ambiguous, when read in context, indicates that an objection was meant.

4.   The People argued in closing, “I sincerely believe the evidence shows that there is a reasonable doubt as to whether or not Mr. Thomas is guilty of voluntary manslaughter, but I sincerely believe that the evidence demonstrates beyond any doubt that he is guilty of involuntary manslaughter.”

5.   The instruction as given stated:  “The offense of involuntary manslaughter with which the defendant is charged necessarily includes the lesser offense of [sic ] involuntary manslaughter.”   Read in context, however, in relation to the surrounding instructions, it was tantamount to an instruction that involuntary manslaughter is a necessarily included offense of voluntary manslaughter.

SCOTT, Associate Justice.

BARRY–DEAL, J., concurs.

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