PEOPLE v. SAILLE

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Manuel De Jesus SAILLE, Defendant and Appellant.

No. F011046.

Decided: June 14, 1990

Richard L. Phillips and Bradley A. Bristow, under appointment by the Court of Appeal, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Jane N. Kirkland and Janet Neeley Kvarme, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

Is voluntary intoxication available under current California law as an avenue to reduce murder to voluntary manslaughter?   The answer to this question is critical to our determination of a number of the issues presented in the instant appeal.   Based upon our discussion that follows, we respond, no.

Defendant Manuel De Jesus Saille was convicted following a jury trial of the first degree murder (Pen.Code, § 187) 1 of Guadalupe Borba and the attempted murder of David Ballagh (§§ 664/187).   In addition, it was found defendant used a firearm during the commission of each crime.  (§ 12022.5.)

In early 1986, defendant was originally tried for these crimes with the same resulting convictions and findings as occurred here.   The convictions were reversed by our court (F007458) based on Wheeler (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) error.   Defendant's retrial, after that opinion, is the subject of this appeal.   As had happened in 1986, the jury did not specify the degree of the attempted murder.   Defendant appeals, raising numerous issues.   The published portions of our opinion consider defendant's claims of instructional errors concerning voluntary intoxication and malice, and the impact of the unspecified degree of attempted murder.   We affirm, except to require the attempted murder conviction to be of the second degree.

FACTS

Defendant began drinking at a friend's house on November 30, 1985, at approximately 10 to 11 a.m.   Between that time and 6 or 7 p.m. that evening he consumed 15 to 18 beers.   At approximately 7 p.m. he went to LaRosa De Oro, a bar, and consumed three or four more beers.   On the same evening, David Ballagh, a licensed security guard, was employed to work at Eva's Cafe from 8 p.m. to 2 a.m.   Bobbie Mendez was working as the bartender.

At approximately 9 to 9:30 p.m. defendant came into Eva's Cafe.   He was walking erratically and his speech was slurred.   Mendez looked at Ballagh and shook her head.   Ballagh approached defendant and told him he could not drink there because he appeared intoxicated.   Ballagh asked him to leave and walked him to the door.   Defendant left.   Defendant returned to Eva's Cafe between 10 and 11 p.m.   Ballagh stopped him and reminded him he could not come in.   Defendant turned around and left.   Defendant again returned around 11 p.m.   Ballagh told him to move outside and leave.   Defendant reached in his pocket and pointed a wad of money at Ballagh and then toward the door.   Ballagh told him to put the money back in his pocket and go home.   After defendant began to leave he turned and said to Ballagh, “I'm going to get a gun and kill you.”   After this occurred, Ballagh went inside Eva's Cafe and expressed concern to Mendez about the situation.

Defendant returned to his home at approximately 1 a.m., December 1.   His live-in companion, Manuela Sandoval, was there.   She saw defendant go into the bathroom and stand there for about 10 minutes.   Defendant had his rifle with him when he left.   At trial, Sandoval was impeached with her prior testimony that defendant said he was going to kill someone.

Defendant returned to the bar at 1:30 a.m., for the first time entering through the back door.   Ballagh went to the back door.   Defendant stepped inside and said, “I told you I would be back.”   Ballagh saw that defendant had a rifle;  he lunged at him and tried to grab it.   The weapon discharged, killing Guadalupe Borba.   The struggle continued outside the bar.   Defendant and Ballagh were shot during the struggle over the weapon.   Ballagh finally got control of defendant and the weapon.   Defendant said, “I came to do what I wanted to” and gave up the weapon.

Defense

Manuela Sandoval testified that she was threatened by the district attorney at the preliminary hearing to repeat her story that defendant said he was going to kill someone or they would put her in jail and take her children away.

Teresa Garibaldi saw defendant drinking at LaRosa De Oro the evening of November 30, 1985.   He had a big bottle with him and was drunk.   Seferino Bojorquez testified that defendant was totally drunk that night.   He also testified that the victim, Borba, was also engaged in the struggle for the weapon.   Juan Carpio saw defendant at approximately 11:30 p.m. outside Eva's Cafe, and he was very drunk.

Maria Torres, the owner of LaRosa De Oro, saw defendant at her bar the evening of November 30.   He had a few beers but he was “not drunk at all.”   Defendant was not normal, but he was walking around and not stumbling.

Dr. Philip Morton Hamm, a licensed psychologist, testified regarding the effects of consuming alcohol.   He testified that a person consuming large quantities of alcohol would not be able to form a rational judgment.   A person could form an intent but it would not be rationally formed.

Rebuttal

Dr. Richard Lynd, a criminalist, analyzed defendant's blood sample taken at 3:31 a.m. December 1, 1985.   The blood alcohol level was .14 and would have been .19 at 1 a.m.   Lynd testified that he had done studies on the effects of alcohol on people, particularly in the area of drunk driving.   He had studied the effect of alcohol consumption on driving skills and mental functions.   He testified that a person's mental functioning with a .19 blood alcohol level would not be as sharp as normal.

DISCUSSION

I. Did the court have a sua sponte duty to instruct that as to each level of the crime, homicide could be reduced if due to voluntary intoxication the defendant lacked the appropriate mental state?

 The jurors were instructed that they could consider defendant's state of intoxication in determining if he had “the specific intent to kill.”   (CALJIC No. 4.21 (1981 rev.) (4th ed. pocket pt.).)

The trial court read CALJIC No. 8.10 (1983 rev.) (4th ed. pocket pt.) as follows:

“Defendant is charged in Count I of the information with the commission of the crime of murder, a violation of Section 187 of the Penal Code.

“The crime of murder is the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life.

“In order to prove the commission of the crime of murder, each of the following elements must be proved:

“1. That a human being was killed,

“2. That the killing was unlawful, and

“3. That the killing was done with malice aforethought.” 2

Next the jurors heard CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.) as follows:

“ ‘Malice’ may be either express or implied.

“Malice is express when there is manifested an intention unlawfully to kill a human being.

“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.

“When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.

“The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.

“ ‘Aforethought’ does not imply deliberation or the lapse of considerable time.   It only means that the required mental state must precede rather than follow the act.”

Express malice, which must be found to constitute murder of the first degree, was then defined as where “the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation.”  (CALJIC No. 8.20 (4th ed. 1979 bound vol.).)

The court instructed the jury that manslaughter is “the unlawful killing of a human being without malice aforethought” and is of two types, voluntary and involuntary.  (CALJIC No. 8.37 (4th ed. 1979 bound vol.).)   Voluntary manslaughter was defined as the “unlawful killing of a human being without malice aforethought.”  (CALJIC No. 8.40 (1979 rerev.) (4th ed. pocket pt.).)   The jury was told that for the homicide to be voluntary manslaughter it must be proved “[t]hat the killing was done with the intent to kill.”  (CALJIC No. 8.40.)   The instructions also informed the jury that there is no malice if the killing occurred upon a sudden quarrel or heat of passion;  even if an intent to kill existed, the offense is manslaughter if the act causing death was done under the heat of passion.  (CALJIC No. 8.40.)   Murder and manslaughter were distinguished in that murder requires malice while manslaughter does not.  (CALJIC No. 8.50 (1983 rev.) (4th ed. pocket pt.).)   Involuntary manslaughter was defined as “the unlawful killing of a human being without malice aforethought and without an intent to kill.”  (CALJIC No. 8.45 (1980 rev.) (4th ed. pocket pt.).)

Defendant contends that the instructions were lacking because they did not relate the theory that defendant could have possessed the intent to kill but not have formed the mental state of malice because of his intoxication.   The evidence supporting this defense, asserts defendant, was rampant.   He argues that CALJIC No. 4.21 was insufficient in itself, and in any event was insufficient because it was limited to having voluntary intoxication negate only the mental state of intent to kill and not malice.   Thus, defendant argues, voluntary manslaughter based on intoxication was a theory removed from the jury.   Defendant asserts the problem was exaggerated by the absence of voluntary intoxication as a theory under which a voluntary manslaughter verdict could be returned.   He claims the court had a sua sponte duty in this regard.   Defendant further contends that sua sponte instructions relating voluntary intoxication to premeditation and deliberation were required.

Respondent counters that defendant could not be guilty of voluntary manslaughter based simply on the defense of intoxication.   Voluntary manslaughter, contends respondent, can be found only upon a sudden quarrel or heat of passion or based on unreasonable self-defense, malice being inconsistent with these specific mitigating factors.   Respondent asserts that the nonstatutory form of voluntary manslaughter based on diminished capacity has been abolished and the definition of malice has been altered.   In summary, respondent argues that the evidence clearly established intent to kill, intent to kill equals malice unless negated by mitigating circumstances, and voluntary intoxication is not one of those mitigating circumstances.

In our evaluation of these arguments, we find it necessary to digress into the history of the defense of diminished capacity and the legislative changes which have “abolished” this defense.   Such an analysis appears in an article written by Kevin Seibert, Admissibility of Psychiatric Testimony in the Guilt Phase of Bifurcated Trials:  What's Left After the Reforms of the Diminished Capacity Defense?  (1984) 16 Pacific L.J. 305 (hereafter Diminished Capacity ).   In part, we adopt Seibert's analysis.

In People v. Wells (1949) 33 Cal.2d 330, 202 P.2d 53, the defendant sought to introduce evidence to show that he did not act with malice aforethought at the time he committed the crime.   The trial court refused to admit the evidence.  (Id. at pp. 343–345, 202 P.2d 53.)   The California Supreme Court found this was error and found that in the guilt phase of a trial a defendant is entitled to present evidence which tends to show that he “did or did not in fact possess the required specific intent” when he committed the criminal act.  (Id. at p. 351, 202 P.2d 53, emphasis added.)  “[E]vidence tending to show lack of mental capacity to commit the crime because of legal insanity is barred at that stage [guilt phase].”  (Id. at p. 350, 202 P.2d 53.)   Thus, Wells adopted the “strict mens rea” approach to the defendant's formation of the requisite intent.  (Diminished Capacity, supra, 16 Pacific L.J. at p. 309.)

The limits of admissible testimony on whether defendant actually formed the requisite intent was expanded in People v. Gorshen (1959) 51 Cal.2d 716, 336 P.2d 492 to include testimony by an expert on the ultimate issue whether defendant had the mental state.  (Id. at p. 723, 336 P.2d 492.)

The shift from whether a defendant actually formed the requisite intent began in People v. Conley (1966) 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911 where the court expanded the definition of malice to include whether the defendant was capable of “comprehending the duty society places on all persons to act within the law.”  (Id. at p. 322, 49 Cal.Rptr. 815, 411 P.2d 911.)   This expansion continued in People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342 where the court added an additional criterion to the malice requirement.   The court found that “it must be shown that the accused was both aware of his duty to act within the law and acted in a manner likely to cause death or serious injury despite such awareness.”  (Id. at p. 758, 111 Cal.Rptr. 910, 518 P.2d 342.)  Poddar thus allowed evidence at the guilt phase to include testimony regarding a defendant's “capacity” to form the required mental state.

The proof admissible on mental states was extended again in People v. Wetmore (1978) 22 Cal.3d 318, 149 Cal.Rptr. 265, 583 P.2d 1308:

“ ‘[A]s a matter of logic, any proof tending to show that a certain mental condition could not exist is relevant and should be admissible to show that it did not exist.   And, of course, proof that something could not exist is the best possible evidence that it did not exist.’  [Citation.]  Moreover, as Justice Kaus pointed out in People v. Steele (1965) 237 Cal.App.2d 182, 190–191 [46 Cal.Rptr. 704] ․, evidence which tends to prove that a defendant could not entertain a certain intent may, when subject to cross-examination, convince the trier of fact that defendant was able to entertain the intent but did not do so on the occasion of the crime.”  (People v. Wetmore, supra, 22 Cal.3d at p. 324, 149 Cal.Rptr. 265, 583 P.2d 1308.)

In response to criticism of controversial verdicts involving the defense of diminished capacity, the Legislature made major changes to the Penal Code.   Additionally, our state's electorate passed Proposition 8 (Cal. Const., art. I, § 28), which resulted in section 25 being added to the Penal Code.

Relevant to this case are sections 22, 25, 29 and 188.

Section 22, as amended by Statutes of 1982, chapter 893, section 2, provides:

“(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.   Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act.

“(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.

“(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance.”

Subdivision (b) of this section formerly read:

“Whenever the actual existence of any mental state, including but not limited to, purpose, intent, knowledge, or malice aforethought, is a necessary element to constitute any particular species or degree of crime, evidence that the accused was voluntarily intoxicated at the time of the commission of the crime is admissible on the issue as to whether the defendant actually formed any such mental state.”

Section 25 was added by initiative measure effective June 8, 1982.   Subdivision (a) of this section provides:

“(a) The defense of diminished capacity is hereby abolished.   In a criminal action, as well as any juvenile court proceeding, evidence concerning an accused person's intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.”

Section 29, added by Statutes of 1984, chapter 1433, section 3, provides:

“In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged.   The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”

The overall purpose of these statutory amendments “was to eliminate diminished capacity as a defense and to disallow experts to testify to the ultimate fact of a defendant's mental state.   Instead, by legislative choice, a defendant is now faced with the arguably more difficult task of showing a mental disease or defect actually prevented him from forming the requisite state of mind, and is limited in his use of expert testimony.”  (People v. Whitler (1985) 171 Cal.App.3d 337, 341, 214 Cal.Rptr. 610.)  “[T]he Legislature has determined that judges and lay jurors are capable of deciding whether a defendant's mental illness results in an inability to form the mental state legally required to sustain the charge.”  (People v. Jackson (1984) 152 Cal.App.3d 961, 969, 199 Cal.Rptr. 848.)

In addition to the legislative changes directly dealing with diminished capacity, the definition of malice was changed.   The second sentence of the second paragraph of section 188 formerly read, “An awareness of the obligation to act within the general body of laws regulating society is not included within the definition of malice.”   Section 188, added by Statutes of 1982, chapter 893, section 4, now reads:

“Such malice may be express or implied.   It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

“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.”

The special defense of diminished capacity, allowing the defendant to show he is less responsible for his actions, has been abolished.   Our state has returned to the “strict mens rea” approach, only allowing the defendant to show that the requisite mental state was not actually formed due to a mental disorder, thus refuting the prosecution's proof of an element of the offense.

“According to the authors of Senate Bill 54 [which changed and added the sections dealing with diminished capacity (with the exception of § 25) ], the ‘mens rea variant’ (strict mens rea approach) is not an independent defense and should not be labeled as diminished capacity.   Rather, the authors contend the mens rea variant is simply a defense attempt to rebut the prosecution's prima facie case by showing that the defendant did not form the mens rea.   This view is consistent with both Wells and Gorshen [People v. Wells, supra, 33 Cal.2d 330, 202 P.2d 53;  People v. Gorshen, supra, 51 Cal.2d 716, 336 P.2d 492] because in neither of these cases did the court suggest that it was creating a special defense.”  (Diminished Capacity, supra, 16 Pacific L.J. at p. 328, fns. omitted.)

Applying the “strict mens rea” approach, we determine that the court was not required to give sua sponte instructions relating voluntary intoxication to the absence of malice.

In People v. Olea (1984) 160 Cal.App.3d 891, 206 Cal.Rptr. 829 the defendant was convicted of second degree murder.   He was voluntarily intoxicated when he committed the crime.  (Id. at p. 893, 206 Cal.Rptr. 829.)   The defendant appealed his conviction, claiming the trial court erred in not giving instructions relating voluntary intoxication to premeditation and deliberation and express malice.  (Id. at p. 894, 206 Cal.Rptr. 829.)   The appellate court rejected defendant's contention:

“During the time the defense of diminished capacity constituted a viable theory upon which a defendant could avoid conviction of a particular crime, instructions pertaining thereto [citations] were of the import that should the trier of fact be convinced lack of capacity had been demonstrated, the necessary conclusion which followed was that the mental state in issue could not be proved.   That is to say, if a defendant could not have formed a given mental state, then certainly he did not form it.   At the same time it was always possible the trier of fact would not be convinced lack of capacity had been shown, in which event it was still necessary to determine whether the requisite mental state actually was formed, yet no instruction other than those typically given in definition of a crime and its elements was ever provided in aid of that necessity.   The same, we think should be true in cases like that present here, where capacity was not involved, but where the jury was fully instructed respecting what was required to be proved in order to convict appellant of murder or manslaughter.”  (People v. Olea, supra, 160 Cal.App.3d at p. 897, 206 Cal.Rptr. 829, emphasis deleted, fns. omitted.)

In footnote 3 at page 897, 206 Cal.Rptr. 829, the Olea court held that there is no sua sponte duty to give CALJIC No. 4.21.

In People v. Whitler, supra, 171 Cal.App.3d 337, 214 Cal.Rptr. 610 the court found that the abolition of diminished capacity was not unconstitutional.   Although the sua sponte duty issue we now face was not addressed in the majority opinion, the concurring opinion of Justice Sims persuasively discussed this concern as to instructions relating mental disease to the mental states required.  (Id. at p. 342, 214 Cal.Rptr. 610.)

“These cases represent variations of the familiar rule that a trial court has a sua sponte duty to give instructions relating a recognized defense to elements of a charged offense.  (People v. Sedeno (1974) 10 Cal.3d 703, 716 [112 Cal.Rptr. 1, 518 P.2d 913]․)  ․ [T]he defense of diminished capacity has been abolished.   A defendant may still defend against a charge of homicide by presenting evidence of mental disease or defect sufficient to raise a reasonable doubt that he or she in fact had the requisite mental state at the time of the offense.  [Citation.]  However, when a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties.   While a trial court may well have a duty to give a ‘pinpoint’ instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such ‘pinpoint’ instructions are not required to be given sua sponte and must be given only upon request.  [Citations.]  Since no such instructions were requested here, there was no error.”  (People v. Whitler, supra, 171 Cal.App.3d at pp. 342–343, 214 Cal.Rptr. 610, fn. omitted (conc. opn. of Sims, J.)

As was stated in People v. Molina (1988) 202 Cal.App.3d 1168, 249 Cal.Rptr. 273, the trial court is not relieved of giving sua sponte instructions on the lesser included offenses of voluntary manslaughter and involuntary manslaughter when evidence is presented which may support a finding of these crimes.  (Id. at pp. 1174–1176, 249 Cal.Rptr. 273.)

Defendant here finds solace in the recent California Supreme Court case of People v. Jackson (1989) 49 Cal.3d 1170, 264 Cal.Rptr. 852, 783 P.2d 211.   In Jackson, the defendant was convicted of first degree murder in spite of evidence that he did not recall the event and was a chronic user of PCP.   Defendant here relies upon that portion of Jackson determining whether the trial court erred in giving CALJIC No. 8.47, relating voluntary intoxication to involuntary manslaughter, an instruction requested by both parties there.   (Id. at pp. 1196–1197, 264 Cal.Rptr. 852, 783 P.2d 211.)   On appeal, the defendant in Jackson argued that the jury should not have been instructed on involuntary manslaughter.   The Supreme Court was thus neither called upon to determine nor did it decide the propriety of the voluntary manslaughter instruction and whether voluntary intoxication could reduce what otherwise was murder to voluntary manslaughter.   As an aside to holding that the involuntary manslaughter instruction given was not erroneous, the court noted that even if the defense had not requested the instructions, the trial court's giving of both voluntary and involuntary manslaughter instructions comported with a sua sponte duty to do so.  (Id. at p. 1196, 264 Cal.Rptr. 852, 783 P.2d 211.)   Since the jury's verdict of first degree murder demonstrated a specific finding the killing was intentional, the Jackson court concluded that any error in the instructions or their sequence was harmless.  (Id. at p. 1197, 264 Cal.Rptr. 852, 783 P.2d 211.)

The issue before the Supreme Court in Jackson was thus very different from what we have here.   Defendant's effort to apply dictum from Jackson to the instant case is additionally thwarted by virtue of the jury there having been incorrectly instructed in the subject matter of CALJIC No. 4.21 (a former version of CALJIC No. 4.21 having been given), which the court found to be harmless in light of the remaining instructions.  (People v. Jackson, supra, 49 Cal.3d at pp. 1195–1196, 264 Cal.Rptr. 852, 783 P.2d 211.)

By contrast here, the specific issue having been briefed and argued and the jury having been correctly instructed in CALJIC No. 4.21 as revised since the abolition of the defense of diminished capacity, we are called upon to decide whether the absence of a sua sponte instruction specifically relating voluntary intoxication to voluntary manslaughter was error.   The Supreme Court could not have been expected to render an opinion on this specific subject nor did it;  thus the Jackson decision must be limited to its holding and the facts and issues therein presented.  (See People v. Ceballos (1974) 12 Cal.3d 470, 481, 116 Cal.Rptr. 233, 526 P.2d 241.)

We note that defendant's theory of sua sponte duty instructions in this area finds some support in People v. Jackson, supra, 152 Cal.App.3d 961, 199 Cal.Rptr. 848.   In Jackson, the disposition read in part, “Due to the omission of an instruction relating premeditation to Jackson's mental state defense, the verdict of attempted murder in the first degree cannot be upheld.”  (Id. at p. 970, 199 Cal.Rptr. 848.)  Jackson is not convincing because it contained absolutely no analysis on the duty to give the instruction;  furthermore, from the term “omission” it is not clear whether the instruction was requested and refused or not given despite a sua sponte duty.

The amendments to the Penal Code have abolished the defense of diminished capacity and returned the courts to a “strict mens rea” approach when dealing with voluntary intoxication.   This is not a special defense but an effort to refute an element of the People's proof.   As such, pinpoint instructions relating intoxication to each mental state and degree of the crime are not required unless requested.

Defendant did not request pinpoint instructions.   He requested CALJIC No. 4.21, relating only to the specific intent to kill.   The jury was instructed on all degrees of homicide and the elements required.   Without a request, the court had no duty to give the type of pinpoint instructions now urged by the defendant.

II. Were the instructions on malice erroneous?

 Defendant posits that defining express malice in terms of intent to kill was incomplete and confusing.  (See quoted language from CALJIC Nos. 8.11 and 8.20, pp. 504–505, ante.)   As part of this argument, defendant contends that the jury was not informed of the requirement that in finding malice it must find defendant acted unlawfully.   Defendant equates “unlawfully” with an actual awareness of societal duty:  i.e., an awareness of the unlawfulness of his act.   Defendant asserts that without instructional clarification on intent to kill and unlawfulness, the jury could not properly determine if defendant possessed the mental state of malice.   Defendant concludes a properly instructed juror may have had a reasonable doubt that he entertained malice and reversal is thus required.

As to defendant's argument that the jury needed to be instructed that the defendant must be aware of the societal duty to act within the law, as previously set forth, malice as defined in section 188 does not require an awareness to act within the body of laws nor acting despite such awareness.   Defendant's argument is erroneous.

 Defendant's criticism of defining express malice as an intent to kill and defining voluntary manslaughter as a killing with an absence of malice but with intent to kill requires a closer analysis leading to a determination of whether voluntary manslaughter survives as a crime mitigated from murder as a result of voluntary intoxication.

“The ‘malice aforethought’ required for murder is an elusive concept which does not lend itself to a definitive and precise meaning.   However, basically, every intentional killing is with malice aforethought unless the circumstances surrounding the killing are sufficient to constitute justification, excuse or mitigation;  any intent to kill under other circumstances is considered malicious.”  (In re Thomas C. (1986) 183 Cal.App.3d 786, 795, 228 Cal.Rptr. 430.)

The law acts out of the forbearance for the weakness of human nature.   (People v. Van Ronk (1985) 171 Cal.App.3d 818, 823, 217 Cal.Rptr. 581.)   In certain situations the law allows the court to disregard the malicious intent and reduce a murder to manslaughter.   Rather than being termed malicious, the act is instead “ ‘ “imputed to the infirmity of human nature.” ’ ”  (Id. at p. 823, 217 Cal.Rptr. 581.)

Until 1982 there were three judicially recognized ways to “negate” malice and reduce a murder to voluntary manslaughter.   First, there was the statutory version of voluntary manslaughter upon a sudden quarrel or heat of passion.  (§ 192, subd. (a).)  Next was the nonstatutory version of voluntary manslaughter based on the theory of imperfect or unreasonable self-defense.  (People v. Coad (1986) 181 Cal.App.3d 1094, 1106, 226 Cal.Rptr. 386.)   The “third, judicially recognized, way to negate malice was to show diminished mental capacity.”  (Ibid.)

The nonstatutory crime of voluntary manslaughter based on diminished capacity was explained in People v. Poddar, supra, 10 Cal.3d 750, 758, 111 Cal.Rptr. 910, 518 P.2d 342:

“The effect ․ which a diminished capacity bears on malice in a second degree murder-implied malice case is relevant to two questions:  First, was the accused because of a diminished capacity unaware of a duty to act within the law?   A person is, of course, presumed to know the law which prohibits injuring another.   Second, even assuming that the accused was aware of this duty to act within the law, was he, because of a diminished capacity, unable to act in accordance with that duty?  [Citations.]  If it is established that an accused, because he suffered a diminished capacity, was unaware of or unable to act in accordance with the law, malice could not properly be found and the maximum offense for which he could be convicted would be voluntary manslaughter.”  (Fn. omitted.)

The three theories used to support a voluntary manslaughter conviction were based on the premise that “the law looks at the motivation (or partial lack of capacity ) behind the killing with empathy and compassion, but does not forgive the intentional killing that results.”  (People v. Coad, supra, 181 Cal.App.3d 1094, 1108, 226 Cal.Rptr. 386, emphasis added.)

As previously set forth, the defense of diminished capacity has been abolished.   Clearly, the reduction of murder to manslaughter based on diminished capacity is no longer available.  (People v. Coad, supra, at p. 1107, fn. 6, 226 Cal.Rptr. 386.)   The question that remains is whether, following the abolition of diminished capacity, voluntary intoxication is available to mitigate murder to voluntary manslaughter.

In People v. Spurlin (1984) 156 Cal.App.3d 119, 128, 202 Cal.Rptr. 663, the court stated, “The express purpose of both statutes [§§ 25, 28] is to abolish the diminished capacity defense and eliminate the judicially created concept of ‘non-statutory voluntary manslaughter.’ ”

The court in People v. Molina, supra, 202 Cal.App.3d 1168, 249 Cal.Rptr. 273 disagreed with Spurlin as follows:

“It is highly significant that there was no evidence of mental defect or disease in Spurlin.  [Citation.]  The court therefore had no reason to consider the language of section 28, subdivision (a) [the mental defect counterpart to § 22 regarding involuntary manslaughter] which permits evidence of mental disease, defect or disorder on the issues of actual formation of specific intent, premeditation and deliberation, and malice.  ‘Whenever possible, effect should be given to the statute as a whole, and to its every word and clause, so that no part or provision will be useless or meaningless, ․’ [Citations.]   The inclusion of the language in subdivision (a) regarding actual formation of mental states shows that the Legislature did not foreclose the possibility of a reduction from murder to voluntary manslaughter where malice is lacking due to mental illness, or a further reduction to involuntary manslaughter where intent to kill is not present for the same reason.   Respondent has ignored the significance of that language, in arguing that under Spurlin, the abolition of the diminished capacity defense means there was no way that appellant could be guilty of manslaughter rather than murder.”  (People v. Molina, supra, 202 Cal.App.3d at p. 1174, 249 Cal.Rptr. 273.)

While Molina correctly notes that section 28 expressly allows the defendant to refute whether he actually harbored malice aforethought, a conclusion that voluntary manslaughter is still available as an avenue to reduce a murder to manslaughter based on voluntary intoxication, mental disease or mental defect does not necessarily follow.   The “nonstatutory” version of voluntary manslaughter, based on diminished capacity, was judicially created as a defense to crimes requiring particular mental states.  (People v. Lynn (1984) 159 Cal.App.3d 715, 732–733, 206 Cal.Rptr. 181.)   Because the Legislature had not defined the “insanity defense” the courts were free to apply their own definition.   Apparently unhappy with the judicial definition, the Legislature stepped in, took control, and provided guidance as to what evidence of particular mental states would be admissible during the guilt phase of a trial.   This is properly the Legislature's prerogative so long as their definitions are not unconstitutional.  (Id. at p. 732, 206 Cal.Rptr. 181.)   These statutes have been upheld following constitutional challenges (People v. Jackson, supra, 152 Cal.App.3d 961, 199 Cal.Rptr. 848) and defendant does not raise a constitutional challenge here.

As was previously discussed, the Legislature signaled a return to the strict mens rea approach.   The restoration of this approach eliminated evidence of voluntary intoxication (or mental disease) as a “special defense” and resulted in such evidence being presented only to negate an element of the People's proof.   The crime of voluntary manslaughter is in essence a “legal fiction” because malice is disregarded even though an intent to kill is present.   Special defenses were created and diminished capacity was judicially created to allow the trier of fact to disregard malice based on human frailty.

“The purpose ․ of eliminating these judicially expanded definitions was ‘to place the murder definitions in accord with the purpose of the bill:  to eliminate most psychiatric defenses in the guilt phase.’ ”   (Diminished Capacity, supra, 16 Pacific L.J. at p. 324, fn. omitted.)

Thus, if a defendant now actually forms the intent to kill, he has formed express malice and there is no longer a judicially created exception for voluntary intoxication which will disregard malice in order to mitigate the homicide.   Agreeing with Coad, supra, and Spurlin, supra, while differing with the reasoning of Molina, supra, we are satisfied the abolition of voluntary manslaughter as an available crime in this type of situation is consistent with the statutes.   A defendant can be found guilty of second degree murder if he had no intent to kill but acted with implied malice.   If a defendant proves that he did not form the mental state of implied malice, the homicide would then be involuntary manslaughter because there would be no intent to kill and no malice.   Consequently, consistent with the statute, a defendant could have reason to dispute malice when facing a homicide prosecution, but such a result does not mean that the Legislature envisioned that a defense based on voluntary intoxication resulting in a conviction of voluntary manslaughter be retained.   The Legislature has clearly signaled a return to the strict mens rea approach.   Therefore, if a defendant actually formed express malice (intent to kill) he no longer can rely on a special defense that he did not have sufficient mental capacity and was unaware or unable to act in accordance with the laws to reduce the homicide to voluntary manslaughter.

 In returning the verdict here of first degree murder, the jury found that defendant actually possessed express malice—an intent to kill.   The jury then could only reduce the crime to voluntary manslaughter if defendant acted in the heat of passion.   Proper instructions were given on this theory.   Defining express malice as an intent to kill and voluntary manslaughter as an intentional killing without malice was not erroneous;  there is no longer a “special defense” based on voluntary intoxication allowing malice to be disregarded.   Intent to kill does equal express malice unless an exception mitigating the crime is present.   The judicially created defense of diminished capacity has been abolished and the Legislature did not replace it when it amended the relevant code sections.

The jury was properly instructed on express malice, implied malice, and premeditation and deliberation.

 III.–IX.**

X. Must we declare the attempted murder conviction to be of the second degree?

The jury returned a verdict finding defendant guilty of attempted murder but did not specify the degree.   There was no finding that the attempted murder was deliberate and premeditated.   Defendant was sentenced to the midterm of seven years for the attempted murder.

Defendant contends and respondent concedes that the attempted murder conviction by operation of law must be of the second degree.

“Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty.   Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”  (§ 1157, emphasis added.   The emphasized language was added in 1949.)

XI. Was trial counsel ineffective because he did not argue that double jeopardy barred a retrial of defendant in count II on anything more than second degree attempted murder?

At defendant's first trial the jury also failed to specify a degree on the attempted murder.   This issue was not raised in defendant's first appeal.   On retrial there was no mention that the attempted murder should be second degree attempted murder.

Defendant contends that his trial counsel was ineffective in not seeking to enter a plea of double jeopardy as to the degree of the attempted murder.   The error of counsel, urges defendant, is further compounded by the fact he did not at least argue that since attempted murder was limited to second degree, the intent transferred for the murder could only be second degree.   Defendant concludes that counsel's failure to plead double jeopardy deprived him of a potentially meritorious defense, requiring reversal.

Respondent combats the ineffective counsel claim in part by arguing that the question of whether section 1157 involved double jeopardy principles was not settled and was so novel that a legal basis for the argument was not available to trial counsel.   We reject this particular argument.   Although the question of whether section 1157 involves double jeopardy principles has not been determined, the issue has been prominently noted.   The Supreme Court in People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, in declining to determine the issue, stated:

“We do not decide at this time the question whether double jeopardy principles will bar retrial of defendant on a charge greater than second degree murder.   First, the question has not been raised by the parties, and its answer is not immediately obvious.   In the usual case a defendant is convicted by the trier of fact of a lesser degree of the crime charged and the judgment is reversed on appeal;  in that event it has long been held that the defendant cannot be retried on the greater degree because of the double jeopardy clause.  [Citations.]  Here defendant's conviction of the lesser degree follows not from a finding of the trier of fact but by operation of law.   Whether the same prohibition against retrial on the greater degree applies in such circumstances may require weighing a number of policy considerations that have not been briefed and argued on this appeal.”  (Id. at p. 383, fn. 31, 208 Cal.Rptr. 236, 690 P.2d 709.)

People v. McDonald, supra, clearly raised the issue that double jeopardy may apply to bar retrial of a greater offense when that offense has been reduced pursuant to section 1157.   That case was published over three years before defendant's second trial commenced.   The issue was not so novel that it was not reasonably available to counsel.

Whether the prosecution may re-charge the greater offense when the jury has failed to specify degree in the first trial focuses upon two critical determinations yet undecided by our Supreme Court.   The first is a due process consideration of unfairly penalizing a defendant for pursuing his right of appeal.   The second consideration is whether double jeopardy bars retrial for the greater offense.

In the present appeal, defendant's conviction for attempted murder must be reduced to attempted second degree murder because section 1157 error occurred at the second trial also.   It is therefore unnecessary to discuss the due process prong of the section 1157 argument.   Any due process error in retrying him for attempted first degree murder was harmless since his conviction is now, by operation of law, attempted second degree murder.

Regarding the second consideration, if section 1157 acts as a bar for retrial of the greater offense based on double jeopardy, it is inconceivable that counsel would, for tactical reasons, fail to assert double jeopardy since this acts as a complete bar for retrial of the offense, here first degree attempted murder.   Although respondent argues that defense counsel may have had a tactical reason for not raising the issue, no mention is made as to what that tactical reason could have been.

If we were to determine that retrial is barred on attempted first degree murder because of double jeopardy, then the operation of section 1157 is to factually acquit on this greater offense.   If defendant was factually acquitted of attempted first degree murder of the intended victim, such would be inconsistent with his conviction of first degree murder of the unintended victim based on transferred intent.   The principle behind transferred intent is that the intent found for the unintended victim is equal to the intent formed against the intended victim.   The intent transferred cannot be greater than the intent found for the intended victim.  (See People v. Clayton (1967) 248 Cal.App.2d 345, 349–350, 56 Cal.Rptr. 413.)   Thus application of double jeopardy here would have a dubious effect.

To determine if double jeopardy applies, it is necessary to look at the reasoning behind this constitutional principle and the reasoning behind section 1157.

“Our Supreme Court has mandated strict compliance with Penal Code section [ ] ․ 1157.”  (In re Jacob M. (1987) 195 Cal.App.3d 58, 62, 240 Cal.Rptr. 418.)   This strict and literal compliance with section 1157 has been followed even when the jury's intent to convict of the greater offense is clear.  (People v. Goodwin (1988) 202 Cal.App.3d 940, 946, 249 Cal.Rptr. 430.)

“Jeopardy attaches in criminal cases when a jury is impaneled and sworn to try a case.  [Citations.]  If a criminal conviction is reversed for insufficiency of the evidence the principles of double jeopardy prevent a retrial.  [Citations.]  The reason is:  ‘ “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.   This is central to the objective of the prohibition against successive trials.”   [Citations.]’  [Citation.]”  (People v. Hockersmith (1990) 217 Cal.App.3d 968, 972 [266 Cal.Rptr. 380].)

“It is fundamental that double jeopardy will not bar retrial of a defendant who has succeeded in overturning his conviction.  (North Carolina v. Pearce (1969) 395 U.S. 711, 719–720 [89 S.Ct. 2072, 2077–2078, 23 L.Ed.2d 656]․)  This rule rests on the premise that the original conviction is nullified and ‘the slate wiped clean.’  (Id. at p. 721 [89 S.Ct. at p. 2078] ․;  see Bullington v. Missouri (1980) 451 U.S. 430, 442 [101 S.Ct. 1852, 1860, 68 L.Ed.2d 270]․)

“A well-established exception to the general rule enunciated in North Carolina v. Pearce lies where a defendant has been impliedly acquitted of an offense at the first trial.   In Gomez v. Superior Court (1958) 50 Cal.2d 640, 652 [328 P.2d 976] ․, our Supreme Court observed:  ‘Double jeopardy attaches when [defendants] are threatened with a second trial on the charge of grand theft of which they were impliedly acquitted at the first trial where they were found guilty only of petty theft.’   In People v. Mercer (1962) 210 Cal.App.2d 153, 161 [26 Cal.Rptr. 502] ․, the court stated:  ‘․ the jury returned its verdict, finding appellant guilty of second degree murder, thus impliedly finding that the killing did not take place during the perpetration of a robbery by the appellant of the decedent.   The result of this implied finding was to acquit the appellant of the charge of first degree murder, thus precluding any subsequent trial of appellant on such charge.’  Gomez and Mercer follow the lead of Green v. United States (1957) 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199]․  In Green, the defendant was indicted for first degree murder.   At trial the jury was instructed that it could convict on either first or second degree murder.   The jury convicted on second degree, but the conviction was reversed on appeal.   The United States Supreme Court held ‘ “․ that a retrial on the first degree murder charge was barred by the Double Jeopardy Clause, because the defendant was forced to run the gantlet once on that charge and the jury refused to convict him.”  [Citations.]’ ”  (People v. Pettaway (1988) 206 Cal.App.3d 1312, 1321–1322, 254 Cal.Rptr. 436.)

As observed by numerous Courts of Appeal, strict compliance with section 1157 when it is clear the jury intended the crime to be the greater degree puts form over substance and the law is traduced.  (People v. Goodwin, supra, 202 Cal.App.3d 940, 946, 249 Cal.Rptr. 430;  People v. Anaya (1986) 179 Cal.App.3d 828, 831, 225 Cal.Rptr. 51;  People v. Lamb (1986) 176 Cal.App.3d 932, 934, 222 Cal.Rptr. 570;  People v. Johns (1983) 145 Cal.App.3d 281, 295, 193 Cal.Rptr. 182.)   The instant case fits into this category.   The first degree murder was based on transferred intent;  thus it is clear the attempted murder was also of the first degree but the failure to specify the degree results in the reduction to attempted murder of the second degree by operation of law.

In People v. Travers (1887) 73 Cal. 580, 15 P. 293, the degree of attempted burglary was not stated in the information.   Defendant was found guilty as charged.   He appealed, claiming the verdict was a nullity because it did not specify the degree.  (Id. at p. 581, 15 P. 293.)   Following the rationale applied to section 1192 which governs guilty pleas and is the counterpart to section 1157, the court found the case must be reversed and remanded for a new trial.   The Supreme Court rejected the defendant's argument that he should be discharged based on double jeopardy.  (Id. at pp. 582–583, 15 P. 293.)

Thus section 1157's mandate that the failure of the jury to specify a degree requires that the crime be reduced to the lesser degree is not based on constitutional principles of double jeopardy but is based on a pure legislative enactment which inures to the benefit of the defendant.

“Sections 1157 and 1192, however, have a rational underpinning.   In both a plea and trial context there must be an express finding on the degree of the crime to avoid the defendant being placed at risk that the degree of the crime will be increased after judgment.   Modification of a criminal judgment is contrary to the strong policy which prohibits judicial action following judgment except to permit the correction of clerical errors.  (See People v. Hartsell (1973) 34 Cal.App.3d 8, 13 [109 Cal.Rptr. 627]․)  The statute also assists in resolving ambiguities or uncertainties in the form of the verdict or plea.   Without sections 1157 or 1192 a conviction based on a plea of guilty to burglary without any statement as to the degree of the crime requires expenditures of unnecessary time and effort to unravel the meaning of that plea.   Our courts have also recognized the dangers inherent in after-the-fact efforts to set the degree of crime by implication.  (See People v. Williams, supra, 157 Cal.App.3d 145 [203 Cal.Rptr. 562].)   The decision to favor defendants under such circumstances by designating the crime one of second degree is a legislative response to correct judicial oversight.”   (People v. Lamb, supra, 176 Cal.App.3d 932, 935, 222 Cal.Rptr. 570.)

Further support that section 1157 is purely a legislative directive and is not governed by constitutional principles of double jeopardy is found in members of the judiciary urging legislative reform in this area.  (See, for example, conc. opn. of Arguelles, J., in People v. Bonillas (1989) 48 Cal.3d 757, 802–804, 257 Cal.Rptr. 895, 771 P.2d 844.)   If the reduction of degree was mandated by double jeopardy principles, it would be useless to urge legislative reform.

The determination of degree pursuant to section 1157 is not a factual acquittal by the jury;  it is not based on a lack of substantial evidence;  and it does not involve precepts of double jeopardy.   The People were not precluded from using the evidence of the attempted murder to prove the first degree murder.   Thus defendant was not deprived of a potentially meritorious defense and effective counsel because the double jeopardy argument was simply not available.

DISPOSITION

Defendant's conviction for attempted murder is second degree attempted murder by operation of law.   Because the punishment for both degrees of this crime were identical in 1985 (see People v. Flores (1986) 178 Cal.App.3d 74, 83, 85, 223 Cal.Rptr. 465;  § 664), the case need not be remanded for resentencing.   The trial court is hereby ordered to forward an amended abstract of judgment to the Department of Corrections accordingly.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All future code references are to the Penal Code unless otherwise noted.

2.   The reading of this instruction included the inadvertent reading of the second clause of the second paragraph with reference to felony-murder.   We discuss this error in an unpublished portion of our opinion, finding the error was harmless.

FOOTNOTE.   See footnote *, ante.

VARTABEDIAN, Associate Justice.

BEST, Acting P.J., and STONE (Wm. A.), J., concur.