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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Robert ARNOLD, Defendant and Appellant.

No. G002056.

Decided: March 26, 1986

John H.F. Ufkes, Orange, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., John W. Carney, Rudolf Corona, Jr. and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent.


Jack Arnold was convicted by jury of involuntary manslaughter in the death of Rudy Romero. He contends the court erred in instructing the jury that the offense of carrying a loaded firearm (Pen.Code, § 12031) is a misdemeanor inherently dangerous to human life which can support a finding of involuntary manslaughter.

Arnold was riding his bicycle on the street when he was cut off by a truck turning into a driveway. Romero, who had been drinking, was the driver of the truck. Arnold braked, got off his bike and stared annoyingly at Romero, who had stopped. Romero left his car running with the lights and radio on, got out, and headed towards Arnold in a threatening manner. Romero was taller and heavier than Arnold. The two argued verbally. Arnold pulled a gun from an ankle holster and told Romero to leave him alone. Romero dared Arnold to shoot as he continued his approach. The two men fought and the gun discharged, killing Romero.

Arnold was charged with murder (Pen.Code, § 187), but convicted of involuntary manslaughter (Pen.Code, § 192, subd. 2). The jury was instructed in the language of CALJIC No. 8.45: “Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill․ [¶] A killing is unlawful ․ if it occurred: [¶] 1. During the commission of a misdemeanor which is inherently dangerous to human life, namely, the offense[s] of 12031 of the Penal Code, carrying a loaded firearm; or [¶] 2. In the commission of an act ordinarily lawful which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. [¶] There is no malice aforethought if the killing occurred in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury.” The emphasized language was supplied by the court.

The instruction embodies two theories of involuntary manslaughter: misdemeanor-manslaughter (unlawful killing during the commission of a misdemeanor which is inherently dangerous to life) and negligent manslaughter (unlawful killing during a lawful act without due caution and circumspection). Arnold objected to the misdemeanor-manslaughter portion of the instruction, arguing that the offense of carrying a loaded firearm is not an “inherently-dangerous-to-human-life” misdemeanor. We agree.

Just as an inherently dangerous felony may supply the malice element of murder under the felony-murder rule (see People v. Satchell (1971) 6 Cal.3d 28, 40, 98 Cal.Rptr. 33, 489 P.2d 1361), an inherently dangerous misdemeanor makes a killing during its commission unlawful. The misdemeanor supplies the element of moral culpability needed to impute criminal intent and convert an accidental killing into involuntary manslaughter. (See People v. Stuart (1956) 47 Cal.2d 167, 302 P.2d 5.)

In deciding whether carrying a loaded firearm in violation of Penal Code section 12031 is an “inherently-dangerous-to-human-life” offense, we “look to the elements of the crime in the abstract, not the particular ‘facts' of the case. [Citation.]” (People v. Wright (1976) 60 Cal.App.3d 6, 11, 131 Cal.Rptr. 311; see also People v. Burroughs (1984) 35 Cal.3d 824, 829–830, 201 Cal.Rptr. 319, 678 P.2d 894.) “In this examination we are required to view the statutory definition of the offense as a whole, taking into account even nonhazardous ways of violating the provisions of the law which do not necessarily pose a threat to human life. [Citation.]” (People v. Burroughs, supra, 35 Cal.3d at p. 830, 201 Cal.Rptr. 319, 678 P.2d 894.)

We have found no cases which directly answer the question presented. In People v. Ramirez (1979) 91 Cal.App.3d 132, 139, 153 Cal.Rptr. 789, the trial court found the defendant had committed involuntary manslaughter because the killing of his companion was “ ‘in the commission of an unlawful act, ․’ “ though it did not specify the unlawful act. The appellate court concluded the defendant had violated both Penal Code section 12031 by carrying a loaded firearm and section 12020 by possessing a sawed-off shotgun. Although the involuntary manslaughter conviction was affirmed, there is no discussion of whether the loaded firearm offense is inherently dangerous to human life. We therefore reject any suggestion Ramirez is controlling.

People v. Dillard (1984) 154 Cal.App.3d 261, 201 Cal.Rptr. 136 explains Penal Code section 12031, but again, does not directly answer the question presented here. Dillard defended the misdemeanor charge of carrying a loaded firearm by contending he did not know the gun was loaded. The Dillard court concluded knowledge is not an element of the offense. (Id., at p. 267, 201 Cal.Rptr. 136.) Based on Dillard, the prosecution need not prove Arnold knew the gun was loaded to convict him of carrying a loaded firearm. That belies a conclusion he was guilty of an offense inherently dangerous to human life. The misdemeanor-manslaughter rule is designed to supply a missing element of intent, making the killing unlawful. That intent element is lacking if the accused did not know the gun was loaded.

In the abstract, carrying a loaded firearm does not necessarily pose a threat to human life. Penal Code section 12031 simply prohibits carrying a loaded firearm on one's person or in a vehicle in a public place or on any public street. Entirely different penal provisions punish concealing, using and brandishing such a weapon. (See, e.g., Pen.Code, §§ 12025, 245, & 417.) While the use of a firearm is obviously inherently dangerous to human life, the simple act of carrying a loaded firearm is not necessarily dangerous. This conclusion is consistent with our Supreme Court's determination that a felon who owns or possesses a concealable firearm does not commit an inherently-dangerous-to-human-life felony for purposes of the felony-murder rule. (People v. Satchell, supra, 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P.2d 1361.) While the Satchell decision primarily concerned the status of an ex-felon in possession of a weapon, it impliedly found that possession of a concealable weapon by anyone was not inherently dangerous to human life.

Viewing the offense in the abstract and ignoring any actual conduct beyond simply carrying the loaded firearm, nothing about the gun being loaded elevates the relative dangerousness of the conduct to the level of life endangering. Of course, brandishing the weapon (Pen.Code, § 417) is an inherently dangerous offense for the purpose of establishing liability under the misdemeanor-manslaughter rule. (People v. Southack (1952) 39 Cal.2d 578, 584, 248 P.2d 12.) However, the jury was not instructed on brandishing here.

We hold the trial court erred in instructing the jury they could find Arnold guilty of involuntary manslaughter if they determined the killing occurred in the commission of the misdemeanor offense of carrying a loaded firearm (Pen.Code, § 12031). That offense will not support an involuntary manslaughter conviction because it is not, in the abstract, inherently dangerous to human life. The court also instructed Arnold was guilty of involuntary manslaughter if he committed a lawful act, without due caution and circumspection. (See, e.g., People v. Tophia (1959) 167 Cal.App.2d 39, 45, 334 P.2d 133.) While the balance of the instructions on involuntary manslaughter were correct, it cannot be determined under what theory the verdict was reached. (People v. Houts (1978) 86 Cal.App.3d 1012, 1019, 150 Cal.Rptr. 589.) Thus, we are compelled to conclude the instructional error was prejudicial. (People v. Satchell, supra, 6 Cal.3d at p. 41, 98 Cal.Rptr. 33, 489 P.2d 1361.)

For future reference, we also note the court erred in purporting to impose a $5000 restitution fine payable directly to the deceased's family. The Attorney General concedes there is no authority to order such a fine when a prison sentence is imposed.

The judgment is reversed.

WALLIN, Associate Justice.

TROTTER, P.J., and CROSBY, J., concur.