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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Herman KREUTZER, Defendant and Appellant.


Decided: April 28, 1987

Handy Horiye, San Diego, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Rudolf Corona, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Defendant Herman “Rock” Kreutzer appeals after a jury found him guilty of second degree murder (Pen.Code, §§ 187 and 189) by use of a firearm (Pen.Code, § 12022.5).   We affirm.


Kreutzer owned and operated the “Big Oak Ranch,” a frontier town theme park located in the Harbison Canyon section of eastern San Diego County.   Kreutzer and his wife, Lynne, lived in a residence on the ranch.   Kreutzer's daughter, Kelly, and her husband, James Spencer, lived in a nearby house which overlooked the ranch.

On March 24, 1984, Kreutzer and Spencer were involved in a serious fight at the ranch.2  Both men were taken to the hospital.   The tip of Spencer's finger had been bitten off by Kreutzer.   Kreutzer suffered severe lacerations on the top of his head and bruises on his face and body.   Both of his eyes were badly scratched.   Both men informed sheriff's deputies they did not wish to press charges.   Based on a sheriff's investigation, however, Spencer was later booked in county jail on charges of assault with a deadly weapon.

Spencer was released from jail on April 11.   When Kreutzer found out about Spencer's release, he went to Larry Stilwell's house.   Stilwell was an employee at the ranch.   Kreutzer asked Stilwell if he would come to the ranch and act as a security guard because the people who lived at the ranch were afraid of what Spencer might do.   Stilwell agreed and the two returned to the ranch between 5 and 5:30 p.m.

During the early evening hours, Stilwell walked around the ranch, checking to make sure everything was normal.   On one of his patrol rounds, Stilwell checked the detached garage at the Spencer residence and noted that some tool chests were missing.   Spencer was a car mechanic and Stilwell recalled seeing a large number of tools in the garage several weeks earlier.

While he was patrolling the grounds, Stilwell stopped at the Kreutzer residence periodically.   He thus learned that the Kreutzers had received phone calls from Spencer and a friend indicating that Spencer wanted to come out to the ranch to pick up his belongings.

At about 8 p.m., Kreutzer received a second phone call from Spencer and arranged to pick him up at the Diamond Lounge and drive him back to the ranch so he could pick up his belongings.   Kreutzer's son, Jerry, drove the car while Kreutzer sat in the back seat.   According to Stilwell, Kreutzer's younger son, Kurt, was assigned to follow Jerry and his father in a pick-up truck to make sure Spencer's friends did not try to follow and cause trouble.   Before leaving, Kreutzer armed himself with a .357 Magnum pistol.   He asked Stilwell to give Jerry a 2–shot derringer pistol.   Kurt Kreutzer had a 9mm. semi-automatic handgun.

Stilwell was asked to stay at the Kreutzer house to protect Kreutzer's wife, Lynne.   About ten minutes after the Kreutzers left, Lynne asked Stilwell to go up to the Spencer house to make sure there was no trouble when everyone returned.   Stilwell asked Nino Desnoyer, another ranch hand, to go with him.   Desnoyer said he would meet Stilwell “up there.”   Stilwell then climbed the small hill on which the Spencer residence was located.   Once there, he positioned himself inside a large bush from where he could see the Spencer house and the driveway leading to the detached garage.

At about the time Stilwell climbed inside the bush, Kreutzer's car drove onto the ranch property.   Several minutes later, Stilwell watched the car proceed up the dirt driveway and park about 15 feet from the garage facing the garage door with headlights on.   The two doors on the left hand side of the car opened.   Jerry Kreutzer got out of the driver's seat and James Spencer emerged from the back seat.   Jerry opened the garage door.   Stilwell heard Spencer say that he wanted to pick up his things and go to Los Angeles so “he could get his head on straight.”   After the two entered the garage, Stilwell saw the garage light come on.3  After Jerry and Spencer had entered the garage, Stilwell saw Rock Kreutzer get out of the car using the same door Spencer had.   He was holding his .357 pistol with his arm resting on the car's rear door.   From inside the garage, Stilwell could hear some muttering followed by Spencer screaming, “you motherfucker stole my tools.”   Stilwell then heard a “scraping, tinny noise like somebody kicked a can․”   Jerry came running out of the garage and Rock Kreutzer fired two shots into the garage.   Stilwell then heard Spencer say, “It's not too late.   I don't deserve this.”   Kreutzer fired two more shots and Jerry, who by now had pulled out the derringer, fired once.   Stilwell then heard Spencer say, “Oh, my God” and saw Spencer's hands in the dirt just beyond the edge of the garage floor, as though Spencer had fallen.   Spencer's hands then disappeared.   Kreutzer fired two more shots and Jerry fired one.   Stilwell then saw a shadow (presumably Spencer) go around the southeast corner of the garage.

After the shooting stopped, Kreutzer called for Stilwell who came down from his vantage point and stood next to a van which was parked near the southwest corner of the garage.   Shortly thereafter, Kurt Kreutzer emerged from behind the garage and walked along the east wall to a point near the southeast corner.   He was carrying the 9mm. pistol.   Spencer's body was in a kneeling position with the head lying inside a cardboard box located just outside the garage near the southeast corner.   Kurt said to Kreutzer, “Dad, he's still alive.   Blow his brains out.”   Stilwell told him there was no need because Spencer was dead.   Kreutzer then said, “It's all over.”

Kreutzer drove back to the ranch house with Kurt and Stilwell.   Jerry Kreutzer and Nino Desnoyer arrived a short time later.   Jerry gave the .22 caliber derringer back to Stilwell.   The group then discussed what to do next.   Kurt suggested they put a gun or a knife in Spencer's hand and “make it look like self-defense.”   Someone suggested taking the body to the desert and burying it, but Stilwell refused to get involved with loading the body into the trunk.   Kurt complained there were too many witnesses to “this whole mess” and that they should “dig a big hole and bump them off and stuff them in it.”   Stilwell then suggested that all the Kreutzers leave the ranch and that “in an hour or so” he would call the sheriff and report that he had found Spencer's body.   Everyone agreed with Stilwell's plan.   Kurt and Jerry left almost immediately.   Rock and Lynne Kreutzer left a short time later and went to Mexico.   Stilwell then called the sheriff's department.

An autopsy performed on Spencer's body revealed six different wounds, some of which were superficial.   The primary cause of death was a leg wound which resulted from a bullet entering the inside front of the right thigh and traveling downward through the leg at a 60 degree angle, exiting in back just above the knee.   This bullet cut the femoral artery and vein, causing severe bleeding.   Wayne Burgess, an investigator with the district attorney's office, opined that the victim was in either a kneeling or squatting position when this wound was inflicted.

The physical evidence included a bullet hole in the back wall of the garage near the northeast corner approximately four and one-half feet from the floor.   Another hole was discovered on the east wall toward the front of the garage approximately six feet from the floor.   A projectile about the size of a .22 caliber bullet was recovered from the doorjam of the large garage door near the southeast corner.   The direction of the hole indicated that the bullet was fired from outside the garage.

There were small drops of blood on the garage floor in the northwest quadrant of the garage which led backwards to what appeared to be a bloody palm print approximately three and one-half feet from the back wall.   There was an oil pan and some spilled oil near the center of the garage.   Additional blood stains began a few feet west of the oil pan and led in a trail toward the front of the garage increasing in volume.   This blood trail led to the dirt just outside the garage door opening.

Various prosecution witnesses examined the physical evidence and autopsy results and theorized on how the shooting took place.   Generally, the prosecution's theory was that Spencer was initially shot in his left arm near the back of the garage.   He covered the wound with his right hand and then fell making the palm print on the garage floor.   He was shot several more times as he moved towards the front of the garage.   The most probable cause of death, the thigh wound, may have been received as Spencer was kneeling near the front of the garage.

Stilwell initially followed through on the agreed-upon plan and told sheriff's deputies that he had found the body a short time earlier and did not know how Spencer was killed.   When Kreutzer was first questioned he explained that he had left the ranch at approximately 8 p.m. to drive to Tijuana.   In several statements to the press shortly after the shooting, Kreutzer repeatedly asserted his innocence and claimed he had nothing to do with Spencer's killing.

Stilwell later received a threatening note concerning his knowledge of the incident.4  On May 4, 1984, Stilwell contacted an attorney who arranged to have the threatening note turned over to the sheriff's office and asked that Stilwell be enrolled in a witness protection program.   In a series of interviews thereafter, Stilwell began to relate the substance of his trial testimony, although the initial statements contained far fewer details than did his later testimony.

The substance of the defense theory of the case was presented largely through Kreutzer's own testimony.   It closely tracked Stilwell's story regarding the events leading up to the shooting.   According to Kreutzer, however, when he and Jerry picked up Spencer at the Diamond Lounge in El Cajon, Spencer warned Kreutzer, “Don't try nothing.   I've got me a gun.”   Spencer kept the gun pointed at Kreutzer throughout the entire drive to the ranch.   When they arrived at Spencer's garage, Spencer ordered Jerry to open the garage door for him and told Kreutzer to stay in the car.   As Jerry and Spencer walked into the garage Kreutzer could hear the two talking and sensed that something was wrong.   Spencer then jumped over a small box and knocked Jerry down.   Kreutzer grabbed his gun and began to get out of the car.   He then saw Spencer point down at Jerry and yell, “I'm going to kill you.”   Kreutzer then said, “James, stop” and fired two shots.   Spencer did not act as though he had been hit.   Instead he jumped down and rolled to his right.   Kreutzer fired another shot down at him.   Spencer then came up and charged Kreutzer.   Kreutzer backed up and fired three more shots.   While he was backing up, he tripped and fell.   As Spencer got to the front of the garage, Jerry—who had retreated from the garage on his hands and knees after being knocked down—fired one shot from the side.   Spencer “froze right in his tracks.”   Just then, Kurt arrived and Kreutzer asked him for his gun saying, “If he moves, I'll blow his head off.”   Spencer, who was still standing, turned to Kreutzer and said, “I made a mistake.”   Kreutzer replied “You Goddamn sure did.”   Spencer then walked over to the cardboard box and collapsed.

Jerry and Kurt talked about calling for an ambulance but Stilwell, who had come down from the bush by now, said it was no use because Spencer was already dead.   Everyone then returned to the ranch house where, according to Kreutzer, they made the decision to construct “the big lie.”   Kreutzer gave his gun to Jerry and Kurt and told them to throw it in the ocean.   He and Lynne then left for Mexico.   Later when Stilwell told him where he had buried the derringer, Kreutzer dug it up and gave it to Kurt with similar instructions.   Kreutzer testified he did not know what happened to Spencer's gun.   He did not believe Spencer ever fired the gun at him.


I. Jury Misconduct

Following the verdict, it was established through declarations submitted by both parties that two jurors had looked up a dictionary definition for “malice” and presented it to other jurors for their consideration.5  Juror Miller apparently copied a definition on a piece of paper and circulated it among the other jurors.   Although what was actually written on the piece of paper is not known, the dictionary used by Miller contained the following definition:

“malice ․ :  desire to see another suffer that may be fixed and unreasonable or no more than a passing mischievous impulse;  also:  intent to commit an unlawful act or cause harm without legal justification or excuse.

“syn malice, ill will, malevolence, spite, malignity, malignancy, spleen, grudge shared meaning element:  a desiring or wishing pain, injury, or distress to another ant charity.”

Juror Nieland also looked up a definition and reported to his fellow jurors that it meant “evil intent.” 6

Approximately two days after the dictionary definitions were discussed, the jury asked the trial judge for reinstruction on the definition of malice.   The judge reread portions of CALJIC No. 8.11 and referred the jury to the written copies of the instructions with which they had been provided.   He also clarified the concept of express malice so as not to include an intentional killing committed with the honest but unreasonable belief in the need for self-defense.   After approximately three more hours of deliberation, the jury returned the guilty verdict.

In denying Kreutzer's motion for new trial on the grounds of juror misconduct, the judge thoughtfully expressed his conclusions:

“Now, with regard to the definitions, the dictionary definitions.   Though it's not altogether clear, I conclude that it is misconduct for jurors to look up ordinary english words in a dictionary, and therefore I conclude that this jury, several of its members, were guilty of misconduct, though I don't think they appreciated it.

“I think, rather, they were trying to be thorough and do their best to perform their duties.   They were mistaken in that.   But I cannot conceive of any prejudice having arisen from it.


“[I]n this case it is quite clear that what the jury did was to—some of its members looked the matter up in the dictionary, and they got some definitions which, read in the context of the instructions, are not inconsistent with the instructions, or to the extent they are, they're favorable to the defendant.   But, at any rate, the jury is told to follow the legal definitions.

“They have nothing in their heads that any intelligent juror wasn't entitled to have;  they didn't reach a conclusion based upon the dictionary definitions.   The sequence of events makes it quite clear that they found that an unsatisfactory way of resolving the problem, and so they adopted the right route:  they asked the court.   They read—they were reread some instructions.   They had considerable struggle thereafter, and they reached a conclusion.

“The fact that somebody read a dictionary rather than remembered in no way prejudiced the defendant, and nothing that they heard prejudiced the defendant.   I find beyond all reasonable, unreasonable, or possible doubt that the look at the dictionary was utterly harmless and insignificant to the outcome of the case.”

 A showing of juror misconduct in a criminal case raises a presumption of prejudice which requires that the defendant be afforded a new trial unless the prosecution effectively rebuts the presumption.  (People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91.)   But where the facts are disputed on the issue of prejudice, or where settled facts give rise to conflicting inferences, deference is properly accorded the trial judge whose first hand observation of the events giving rise to the controversy makes him “a presumptively more capable decisionmaker.”  (Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1024, 213 Cal.Rptr. 712.)   In such circumstances, the reviewing court is limited to determining whether substantial evidence supports the trial court's determination that the presumption of prejudice was effectively rebutted.  (See People v. Neely, supra, 95 Cal.App.3d at p. 1021, 157 Cal.Rptr. 531.)

 We agree with the trial court's conclusion here that the jurors' reference to dictionary definitions of operative legal terms constituted misconduct, albeit innocently motivated.   The question of whether the presumption of prejudice thus created was effectively rebutted is a more difficult one.

In the trial court's view, the dictionary definitions considered by the jury were by and large consistent with the court's instructions.  (See Neely, supra, 95 Cal.App.3d at p. 1021, 157 Cal.Rptr. 531.)   Frankly, on this arcane subject (see post, pp. 599–602) one has difficulty in articulating a clear inconsistency which would be unfavorable to Kreutzer.   But a clear inconsistency between the dictionary definition and the legal definition is not necessarily required to deprive Kreutzer of a fair trial.   The effect of all prejudice must be rebutted.   We are satisfied that complete rebuttal occurred here in light of the sequence of events and the court's findings.

The court inferred from the facts that the jurors' later request for reinstruction on and clarification of the malice concept demonstrated they did not rely on the dictionary definitions.   The trial judge's determination was necessarily based on his listening to the jurors explain their confusion and on the personal observations he made during that colloquy.   The trial court's determination was also based on his reading the declarations from individual jurors.

In opposing Kreutzer's new trial motion, the district attorney obtained declarations from eleven of the jurors and submitted the declaration of Deputy District Attorney Investigator Stanley Maddux, who related his conversation with the twelfth juror.   Four of the jurors declared that after discussing the dictionary definitions “all jurors verbally agreed to return to court to ask the judge for further instruction.   After the judge gave us further instructions the jurors agreed verbally to follow the instructions of the court and not the dictionary.”   The remaining jurors do not expressly say they agreed not to rely upon the dictionary definition, but an inference can often be drawn from their respective declarations.7  For example, the declaration of Richard Worsley is typical:  “I did not use a dictionary to look up any legal term, such as malice, during this trial.   I recall one juror reading a dictionary definition to the jury, but this occurred only once and was not brought up again.   That incident happened several days before we asked the court for clarifying instructions.   After the court gave us further instructions, we referred only to the court's instructions, and nothing was said about any dictionary definitions.”

 Based on the foregoing we cannot say the facts are insufficient to support the inferences drawn by the trial court.8  Under these circumstances, a new trial was not required.9

II. Sua Sponte Duty to Instruct on Jury Unanimity

The evidence including Stilwell's testimony indicated there was a pause between the first two shots fired by Kreutzer and the remaining shots.10  Focusing on this spacing, Kreutzer suggests that individual jurors may have had different views of his mental state during each set of shots requiring the trial court to give a sua sponte instruction along the lines of CALJIC No. 17.01 that the jurors must unanimously agree on the acts giving rise to criminal liability.

Kreutzer points to evidence and argument in the record to demonstrate that the jury could rationally have accepted his testimony regarding his belief in the need to fire the first two shots in defense of his son, but concluded that the last four shots—fired after Spencer had been hit and after it was clear he did not have a weapon—demonstrated the malice necessary for a murder conviction.   These facts alone, of course, fail to demonstrate any need for a unanimity instruction since even under this view of the evidence no jury could rationally conclude that the first two shots were fired with malice but the last four were not.   Kreutzer responds, however, that the medical experts disagreed on the sequence in which Spencer's wounds were received but agreed that at most only two of the wounds were fatal.   Kreutzer theorizes that if some jurors concluded that the fatal wound(s) were inflicted by the first two shots and disagreed with other jurors as to whether those shots were fired with malice, he would have been prejudiced by the lack of a unanimity instruction.

 We believe this commendably creative but highly unlikely theory may have warranted an instruction had it been presented to the trial court.   But to impose a sua sponte duty on the trial judge to anticipate such a labyrinthine interpretation of the facts makes no sense.   The obligation to instruct sua sponte on a theory of defense 11 “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.   Indeed, this limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon.”  (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913;  disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1, accord People v. Wickersham (1982) 32 Cal.3d 307, 326, 185 Cal.Rptr. 436, 650 P.2d 311.)   The sua sponte obligation extends only to those “principles of law commonly or closely and openly connected with the facts of the case” (People v. Wade (1959) 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116) and does not include the “specific points developed at trial.”  (People v. Flannel, supra, 25 Cal.3d at p. 681, 160 Cal.Rptr. 84, 603 P.2d 1.)   Here, Kreutzer's post-hoc appellate view of differentiated causation and mental state cannot in any sense be said to be “openly” connected to the facts.   More importantly, such a theory is inconsistent with his factual defense and requires that the jury disbelieve his testimony.   As the court explained in People v. Wickersham, supra, 32 Cal.3d at pages 328–329, 185 Cal.Rptr. 436, 650 P.2d 311, the fact that a theory of defense is plausible based on a partial rejection of the defendant's testimony does not give rise to a sua sponte duty to instruct on that theory.   Accordingly, the trial court did not err in failing to give CALJIC No. 17.01.

III. Inadequate Instructions on Malice

In a multi-faceted attack on the instructions regarding the mental state necessary for murder, Kreutzer contends that the definitions of express and implied malice are vague, confusing and incorrect.   As to express malice, Kreutzer argues that because the concept is defined in terms of an intent to kill, the definition fails to adequately distinguish a murder with express malice from voluntary manslaughter, which also involves an intentional killing.12  As to implied malice, Kreutzer asserts that one of the two alternative definitions fails to adequately incorporate the subjective awareness concept and would allow the jury to convict without this critical finding.

A. Express malice

We recently had occasion to address a similar argument regarding the express malice instruction.   In People v. Buschbom (Mar. 9, 1987, D002870) 189 Cal.App.3d 1615, 1627, 234 Cal.Rptr. 914 [87 L.A. Daily J.D.A.R. 856, 858], we quoted from CALJIC instructions Nos. 8.11 and 8.40 and made the following comments:

“We are frank to admit that a literal reconciliation of the relevant instructions is difficult if not impossible.   One feels conceptually cross-eyed trying to envision an intentional killing without malice where malice is defined as the intent to kill.

“As the Supreme Court recognized in People v. Gorshen (1959) 51 Cal.2d 716, 730, fn. 11 [336 P.2d 492], ‘the task of formulating an inclusive or comprehensive definition of the malice aforethought which distinguishes murder from manslaughter’ is inherently a difficult one.   In reality, an intentional killing is malicious unless one of several recognized exceptions apply to negate the malice which would otherwise be established․   Thus, an intentional killing in the ‘heat of passion’ resulting from ‘sufficient provocation’ is not malicious.  [Citations.]   Also, the evidence may show that by virtue of a mental disease, defect or intoxication, the defendant did not harbor the malice necessary to establish that the killing was murder.  [Citation.]   Finally, an honest but unreasonable belief in the need to defend one's self will negate malice.  [Citation.]”

We went on to say that the combination of CALJIC Nos. 8.11 and 8.40 may be confusing, but concluded there was no error because the trial court properly determined there was insufficient evidence to support a voluntary manslaughter conviction and therefore omitted CALJIC No. 8.40.  (Id. at p. 1628, 234 Cal.Rptr. 914 [87 D.A.R. at p. 858].)

 In the present case, the record concededly supported a voluntary manslaughter verdict on an imperfect self-defense theory (see People v. Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1) and the jury was accordingly given both CALJIC instructions Nos. 8.11 and 8.40.   Thus, the potential for confusion clearly exists.   To avoid this confusion in later cases, we suggest that CALJIC No. 8.11 be modified to state, “Malice is shown where the defendant intended to kill the victim, unless there are circumstances about which I will later instruct you which justify or excuse the killing, or mitigate the killing to some lesser crime.”

 We do not believe, however, that the lack of such a modified instruction requires a new trial.   Immediately after reading the portion of CALJIC No. 8.40 which contributes to the confusion, the trial judge specifically instructed the jury that “[t]here is no malice aforethought if the killing occurred in the honest but unreasonable belief in the necessity to defend oneself or another against imminent peril to life or great bodily injury.”   Later, when the jury requested reinstruction on malice (see ante, p. 596), the judge initially told the jury after consultation with the attorneys that express malice “is an intent to unlawfully kill.”   He then, however, clarified that statement:

“With regard to express malice, I said that if there was an intent to kill and the killing was unlawful, that malice would be present.   That's a half truth.  [¶] That's in substance what that much of that instruction tells us about malice aforethought.  [¶] But there are other instructions in the book having to do with manslaughter and having to do in particular with voluntary manslaughter.  [¶] Voluntary manslaughter is unlawful, and therefore and it is an intentional killing, but it is an intentional killing without malice.  [¶] And as to this particular case, there is an instruction that explains to you that a killing in [imperfect] self defense—that is a short-handed way of saying in self defense—an unreasonable belief in the right of self defense, would be a killing without malice.  [¶] And it would literally also be within the meaning of the words that I uttered to you.   So don't take any instruction in isolation.   The instruction that I gave you orally was a half truth, paraphrased restatement—hopefully clarification—of what the written instruction said.  [¶] But you have to read it together with the other instructions as to other states of mind which would be lawful—unlawful, intentional killing but not malicious.”

These additional instructions—particularly the latter lengthy recitation—eliminated any confusion which may have been caused by the combination of CALJIC Nos. 8.11 and 8.40.   No reasonable juror could have believed that proof of intent to kill, without more, necessarily establishes malice.   Under these circumstances, if the giving of an unmodified CALJIC No. 8.11 can be considered error, it most assuredly had no effect on the verdict and was harmless beyond any reasonable doubt.  (See Rose v. Clark (1986) –––U.S. ––––, ––––, 106 S.Ct. 3101, 3103–3109, 92 L.Ed.2d 460.)

B. Implied Malice

In People v. Love (1980) 111 Cal.App.3d 98, 107–108, 168 Cal.Rptr. 407, this court suggested that a defendant may be found guilty of murder on an implied malice without a finding he was subjectively aware of the risk of death which his acts created.  Love was impliedly overruled in People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279 in which the Supreme Court explained that it is this “subjective awareness” requirement which critically distinguishes implied malice murder from those types of manslaughter which are based on a finding of culpable negligence:  “[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.”  (Id. at pp. 296–297, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis in original.) 13

The jury in the present case was instructed pursuant to CALJIC No. 8.11 as to the definition of implied malice:

“Malice is implied when the killing results from an intentional 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 or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

This alternative definition directly tracks language in People v. Watson, supra, 30 Cal.3d at page 300, 179 Cal.Rptr. 43, 637 P.2d 279 which in turn quoted the formulations proffered in People v. Washington (1965) 62 Cal.2d 777, 782, 44 Cal.Rptr. 442, 402 P.2d 130 and People v. Phillips (1966) 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353.   Kreutzer asserts that this alternative definition is improper because the first prong, derived from People v. Washington, supra, fails to require a finding that the defendant was subjectively aware of the significant risk of death he was creating.   Thus, he argues, the jury could have convicted him on an implied malice theory without a determination of subjective awareness.

Kreutzer's theoretical argument is a sound one unless “wanton disregard” means the same thing as “conscious disregard.”   To those versed in legal lore, the term “wanton disregard” conjures various images but the dictionary definition for “wanton” hardly makes clear it is a synonym for “conscious.” 14  To the extent jurors ever speculate on the meaning of “wanton disregard,” we do not think they would necessarily conclude it requires a finding of subjective awareness.

We are somewhat perplexed as to why the Supreme Court, having made clear in Watson that subjective awareness is a necessary requirement for implied malice, would in the same case proffer an alternative definition in which one prong perpetuates the confusion.   We suspect the Committee on Standard Jury Instructions was similarly concerned when it noted in the Comment to CALJIC No. 8.11 (1983 rev.) that it expressed “no opinion as to ․ whether the two concepts of implied malice are intended to be synonymous or alternatives.”   On one hand, it could be argued that it must be left to the Supreme Court to change the definition.   On the other, while the prose of Supreme Court opinions may be intended to enlighten the legal community, it is neither widely read nor easily understood by the masses of citizens from all walks of life who constitute the backbone of the jury system.   This is only to say that standard jury instructions are all too often drafted with a view to who will be reviewing the case rather than who will be hearing it.   The fact that language appears in an appellate court opinion does not necessarily mean that a proper jury instruction can be drafted by directly quoting the court's language.

 We would suggest that the CALJIC Committee consider a simplified modification of CALJIC No. 8.11 which would inform the jury that malice is implied when the killing results from an unjustified intentional act, the natural consequences of which are dangerous to life, where it is shown that the defendant consciously disregarded the high degree of probability that the act would result in death.   Fortunately, we need not decide whether our status as an intermediate appellate court precludes us from taking issue with a jury instruction which quotes directly from Supreme Court opinions (compare People v. Martinez (1984) 157 Cal.App.3d 660, 666–667, 203 Cal.Rptr. 833 with People v. Kelley (1984) 158 Cal.App.3d 1085, 1096, 205 Cal.Rptr. 283) because we have concluded that even if CALJIC No. 8.11 is erroneous, the error did not prejudice Kreutzer on the facts of this case.   This is not a situation in which the defendant's conduct might be termed grossly negligent but where the jury could reasonably conclude that he did not act with subjective awareness of the risk of death which was created.   There is no suggestion in the defendant's own testimony or in any of the other evidence that Kreutzer did not realize that firing a .357 magnum revolver at a human being involved a serious risk of death to that person.15  Kreutzer's argument was that such a shooting was justified by his perception that he and his son were in danger of serious physical harm.   It was thus irrelevant that the instruction may have improperly suggested that a finding of subjective awareness was unnecessary.   Any error was harmless beyond a reasonable doubt.  (See Rose v. Clark, supra, 478 U.S. at p. ––––, 106 S.Ct. at pp. 3103–3109.)

IV. Admissibility of Expert Testimony

The prosecution argued that Kreutzer's disposing of evidence, fleeing the scene by going to Tijuana and later denying any involvement in the shooting demonstrated a consciousness of his guilt and cast doubt on the credibility of his trial testimony.   To rebut this argument, Kreutzer sought to introduce the testimony of Massad Ayoob, director of the Lethal Force Institute, Inc. and a former police officer.   Ayoob has had considerable experience training police officers and others in the use of firearms and has also studied the reactions of persons who have shot another human being.   In voir dire examination focusing on shootings by private citizens, Ayoob was questioned by Kreutzer's counsel as follows:

“Q. Have you found, in your research and studies of other research, any common reaction to the shooting of an individual by an untrained person?

“A. There are numerous traumatic reactions.

“Q. Are they common in almost all of those?

“A. They are widespread.   Certain of them are virtually universal;  others are so frequent as to be predictable.


“Q. What are those reactions which you have found in the shooting of one citizen by another citizen, untrained person?

“A. Well, we have long-term and short-term reactions.   And the long-term nightmares seem to be universal, other forms of sleep disturbance.   In the immediate aftermath, there is often disorientation, cognitive dissonance, inability to immediately remember the exact sequence of things.   And there is a tendency to be emotionally overwhelmed.   There's a great deal of emotional shock.

“The private citizen, unlike the police officer or the soldier, has never been trained that one may have to kill a man in combat and has just never come to terms with the awesomeness of taking another life.   When it comes out of the blue and hits them in a matter seconds or minutes, it tends to be totally disorienting.   We have people who collapse in tears;  we have people who faint and numerous variations of denial response.

“Q. What is ‘denial response’?

“A. ‘Denial response’ is a situation where you—the individual simply cannot face what has happened.   We often see this verbalized when the man makes a statement, not, ‘I shot him,’ but the statement, ‘the gun went off.’   You have people who turn and flee, simply cannot face it.

“And this—here again, we have one of the prevailing myths.   They do not realize that the criminal justice system often equates flight with guilt.   And we have—very often have an individual with a justifiable or excusable shooting, by fleeing or testimony to change the evidence, now makes it appear that he was a guilty man.”

When asked about the raw data which supported his conclusions, Ayoob replied, “The raw data would be my conversations with my instructor, Dr. Walter Gerski, who has treated approximately 80 civilians who are suffering from post shooting trauma after self-defense shootings.   It would be my own experience with my students who have been in such situations and those who have not been, but have analyzed beforehand what they thought their response might be.”

The trial court ruled that Ayoob's testimony was inadmissible.   It appears the trial court was concerned that the testimony might confuse the jury—an Evidence Code section 352 problem—and that Ayoob's testimony was too vague and lacked sufficient foundation to be helpful.16  The court also concluded that Ayoob's testimony failed to satisfy the Kelly-Frye test (see People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240;  Frye v. United States (D.C.Cir.1923) 293 F. 1013, 1014) as to general scientific acceptance.

 Evidence Code section 801 allows for opinion testimony by an expert if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact” and is “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness ․ whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, ․”  (See People v. Davis (1965) 62 Cal.2d 791, 800, 44 Cal.Rptr. 454, 402 P.2d 142;  People v. Cole (1956) 47 Cal.2d 99, 103, 301 P.2d 854.)   Here, there seems little question that Ayoob's testimony was of a type which should have been admitted.   The subject of how untrained persons react after having shot another person is not one with which jurors have any considerable degree of familiarity.   Ayoob's training and experience qualified him to explain to the jury certain general conclusions in this area.   In any event, “[m]ost questions as to the degree of the expert's knowledge go to the weight rather than admissibility of the testimony.”  (People v. Rance (1980) 106 Cal.App.3d 245, 255, 164 Cal.Rptr. 822.)   The fact that Ayoob's conclusions were based in part on studies and observations of another individual do not render them suspect in view of the fact that experts in a field often rely on work done by other experts, the results of which are routinely published in scholarly journals for the very purpose of facilitating such reliance.   Finally, we do not understand how such testimony would have confused the jury other than to have suggested the possibility that the inference of guilt which the prosecution sought to draw may not have been totally accurate.   This is hardly the sort of confusion section 352 was designed to avoid.

The court's attempt to invoke the Kelly-Frye test was apparently based on a misreading of the Supreme Court's recent decision in People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, dealing with the admissibility of expert testimony explaining rape trauma syndrome.   As part of its case-in-chief in Bledsoe, the prosecution introduced the testimony of the victim's rape counselor for the purpose of describing for the jury the general behavior patterns exhibited by rape victims after the rape.   Based on her knowledge of these patterns and her observations of the victim, the counselor then opined that the victim was suffering from rape trauma syndrome.  (Id. at pp. 240–244, 203 Cal.Rptr. 450, 681 P.2d 291.)   Relying on a Kelly-Frye analysis, the Bledsoe court held that expert testimony regarding rape trauma syndrome is not admissible where its purpose is to corroborate the victim's testimony that a rape had in fact occurred.  (Id. at pp. 248, 251, 203 Cal.Rptr. 450, 681 P.2d 291.)   The court, however, was careful to distinguish those cases in which experts describe the post-rape behavior patterns of rape victims to rebut defense argument “that some conduct of the victim after the incident—for example, a delay in reporting the sexual assault—is inconsistent with her claim of having been raped, ․”  It noted that “in such a context expert testimony on rape trauma syndrome may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.” (Id. at pp. 247–248, 203 Cal.Rptr. 450, 681 P.2d 291;  see also People v. Gray (1986) 187 Cal.App.3d 213, 218, 231 Cal.Rptr. 658.)

In this case, Ayoob's testimony was not introduced to show that because Kreutzer fled the scene and destroyed the evidence, he must have shot Spencer in self-defense.   Rather, its purpose was to “rebut misconceptions about the presumed behavior” of persons who justifiably kill another by suggesting that Kreutzer's post-shooting behavior was not inconsistent with his having acted in self-defense.   Consistent with Bledsoe, the evidence was admissible.

 It remains to be determined, however, whether the error in excluding the evidence was prejudicial.   We do not believe it reasonably probable that a more favorable verdict would have resulted in the absence of the error.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   Ayoob's voir dire testimony suggests that Kreutzer's decision to flee may not be inconsistent with a self-defense shooting.   Ayoob said nothing, however, about a person's conduct in destroying evidence, especially where one such incident (the retrieval and disposal of the derringer) occurred several days after the shooting.   Moreover, Kreutzer was making public statements denying any involvement in the shooting over a month later.   The only long-term effects discussed by Ayoob related to nightmares and “other forms of sleep disturbance.”   Under these circumstances, a reversal is not required.



The judgment is affirmed.


2.   Although the fight was apparently precipitated when a dispute developed between Kreutzer and Spencer over the volume of Spencer's stereo at 3 a.m., more fundamentally it was the result of ongoing tension between the Kreutzers and Spencer.   Kreutzer testified that shortly before the fight Kelly and her newborn baby had come to stay with the Kreutzers because Kelly said Spencer had been abusing her.

3.   Stilwell testified that from where he was positioned to the side and east of the garage, his view inside the garage was limited to a four foot portion of the garage's west wall.

4.   The note read, “What you've seen and heard at the ranch you better forget everything, or else talking to police can be brutal for you and your whole family.”

5.   It was also established that one juror looked up the word “aforethought” and presented that dictionary definition to the jury as well.   Kreutzer concedes, however, that any prejudice flowing from this event was effectively rebutted because the dictionary definition was substantially the same as the legal definition given by the court.  (See People v. Neely (1979) 95 Cal.App.3d 1011, 1021, 157 Cal.Rptr. 531.)

6.   The dictionary used by Nieland contained the following definition:“malice ․“1. active ill will;  desire to harm others or do mischief;  spite.“2. in law, evil intent;  state of mind shown by intention to do, or intentional doing of, something unlawful.“malice aforethought (or prepense);  a deliberate intention and plan to do something unlawful, as murder.“Syn.—rancor, spite, grudge, pique, malevolence, malignity, hatred.”

7.   Only one juror expressly stated he did not hear a verbal agreement among the jurors.

8.   Defense counsel was properly concerned with the court's considering declarations from the respective jurors.   He correctly referred the court to Evidence Code section 1150 which provides the statutory basis for determining admissibility of statements challenging a jury verdict.   In effect a court may consider statements made, conduct, conditions or events but cannot admit evidence which will show the mental processes used by an individual juror.   Counsel cited People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132 and Krouse v. Graham (1977) 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022 and went on to urge “we ask the court to consider all supporting declarations, to make reasonable inferences about which are admissible in part or in their entirety.  [Fn. omitted.]”   In light of defense counsel's request for the trial court to consider the declarations we believe it appropriate for this court to have done so also in its determination of whether there was a reasonable basis for the trial court's finding that Kreutzer was not prejudiced by the jury's misconduct in using dictionary definitions of malice.

9.   Kreutzer also argues the trial court erred in failing to grant his post-trial discovery motion seeking to obtain statements made by jurors to the prosecutor.   Responding to the initial motion made before there was any evidence of misconduct, the prosecutor represented to the court and counsel that he was aware of his obligation to advise the court of any information he had received suggesting the defendant had not received a fair trial and that he had received no such information.   Accepting this representation, the court properly denied the motion.   Later, when Kreutzer renewed his discovery motion after juror declarations had been submitted by both parties on the misconduct issue, the court again denied the motion on the ground that further contact with the jurors was unlikely to produce additional relevant evidence but would instead merely result in their harassment.   Under these circumstances, the court did not abuse its discretion.

10.   Diane Pooler, a neighbor, testified she heard gunshots between 8:30 and 9 p.m.   She heard a total of five or six shots and recalled there was a four or five second pause after the second or third shot.

11.   We assume without deciding that the lack of a unanimity instruction might deprive a defendant of a “theory of defense” and thus invoke the Sedeno standard.

12.   CALJIC No. 8.11 (1983 rev.) specifies that “[m]alice is express when there is manifested an intention unlawfully to kill a human being.”  CALJIC No. 8.40 (1979 re-rev.) defines voluntary manslaughter as “the unlawful killing of a human being without malice aforethought when there is an intent to kill.”

13.   Kreutzer also argues that legislative amendments to Penal Code section 188 in 1981 and 1982 eliminated the “subjective awareness” requirement and inadvertently obliterated the distinction between implied malice murder and involuntary manslaughter.   We disagree.   As a result of the amendments, the second paragraph of section 188 now reads:“When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought.   Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.”This language constituted a legislative response to a series of Supreme Court decisions which developed a “diminished capacity” defense by interpreting the arcane phrase “abandoned and malignant heart” which appears in section 188 to include, among other things, a requirement that the defendant was aware “of [a] duty to act within the law” and that he was able “to act in accordance with that duty.”  (See People v. Poddar (1974) 10 Cal.3d 750, 758, 111 Cal.Rptr. 910, 518 P.2d 342 and cases there cited.)   The fact that the Legislature has seen fit to eliminate the requirement that a defendant be aware of and able to comply with general social obligations in no way indicates that implied malice may be found without proof that the defendant was subjectively aware of the specific risks he was creating.

14.   Webster's Third New International Dictionary (1981) defines “wanton” as, among other things, “excessively merry or gay,” “unchaste, lewd, lustful” “brutally insolent” and “willfully malicious.”  (Id. at p. 2575.)   While the latter definition may suggest the correct context, the use of the term fails to clearly define the mental state necessary to result in a conviction.

15.   In fact, defense counsel had argued that the implied malice instruction need not be given because there was insufficient evidence to support the theory.

16.   The trial judge stated as follows:“I'm not going to admit this evidence.   I think that I do have to say that it is relevant within the meaning of Proposition 8;  that is to say that it bears upon the subject matter․“․ [I]t may be better to talk about it in terms of 352, that the possibility of confusion, the tendency to suggest to the jury that it can somehow shift the burden to somebody else on a critical point, at least—there's no doubt this is a critical point.   And so if indeed the law would entitle the jury to shift this burden then, then what I am saying would be somewhere near the heart of the matter.   Certainly this jury is going to have to deal with the question of what it makes of the post shooting conduct of the defendant.“․“The real question is whether the defendant's conduct in going to Tijuana some considerable period of time later is evidence of the guilt or whether it's flight.   Now it doesn't sound—whether it's a kind of post shooting syndrome flight.   It seems to me this is an apparent case—it's nothing that I've heard this witness really address himself to, and I suspect he can't be an expert, especially considering the—what he's—that what he's really talking about giving is psychological, psychiatric type information which he gets, one, second-hand from an expert in that field.   Whether I would let that expert testify I don't know.   He might say something different;  he might have some grounding.   And otherwise it's anecdotal evidence, based on he's talked to some shooting—some people involved in shootings who told him what they think they would have done or how they did indeed feel.“And I'll bet you none of them talked to him about having gone home and sat down and discussed and then gone off to Tijuana to the Jai Alai game.   That somehow doesn't sound to me as a puzzle that's going to be solved by this kind of evidence.   I think the jury is going to have to solve that one on its own, that this testimony might be confusing and certainly wouldn't be particularly helped by this sort of evidence.And furthermore, it seems to me that the holding with regard to the rape trauma syndrome is directly applicable, that there isn't any authority that just because it's defense evidence the rules are utterly different, that the Kelly-Frye analysis is applicable to it.   And under the Kelly-Frye analysis, I am simply unpersuaded that there is a body of generally accepted scientific knowledge which would be relevant and helpful in resolving the issues of this particular case.   Accordingly, I will not accept the testimony.”

FOOTNOTE.   See footnote 1, ante.

WIENER, Acting Presiding Justice.

WORK and LEWIS, JJ., concur.