PEOPLE v. SMITH (1983)

Kenneth Carl Smith appeals a judgment upon jury conviction of second degree murder of Timothy Lee (Pen.Code, §§ 187, 189) and finding that he used a firearm in the commission of the offense (Pen.Code, § 12022.5).¹  Smith contends, inter alia, the trial court erred in refusing to give requested instructions on involuntary manslaughter and failing to give certain instructions sua sponte.   The contentions are meritorious, require reversal.

FACTS

On the afternoon of May 5, 1981, Smith, Jackie LaRue Sharpe, Frankie Webb and Timothy Lee set out to purchase some beer.   According to Sharpe, Lee may have been under the influence of “something” as his eyes were glassy and he slurred his words.   As the men passed through Mountain View Park, Smith and Lee began to argue about $200 Lee owed Smith.   The argument grew heated, Lee got angry and upset and asked Smith if he wanted to fight.   Smith also became angry, responded “You want to fight me after what we just discussed?” and took a semi-automatic gun from his waistband.   He put the gun to Lee's back and said “Don't make this look like it's a robbery, or I'm taking anything from you.   Just give me what you owe me.”   Lee gave him some clothing and all the cash he had, but Smith returned the clothing, saying all he wanted was the money owed him.   Smith told Lee he ought to shoot him, but proceeded to fire his gun into the air or ground.   Smith immediately walked toward the park's recreation building.

Lee and Sharpe discussed the incident as they too began to walk toward the recreation building.   Lee was upset and crying.   Smith returned to give $15 back to Lee.   Lee, however, wanted all the money back, and remained upset after Smith returned to the recreation building.   Lee explained to Sharpe he needed all of the money he owed Smith to give to his pregnant girlfriend.   Sharpe told Lee he should tell that to Smith.

Sharpe testified he and Lee approached Smith, Smith again told Lee he ought to kill him, and for the second time took the gun from his waistband.   Lee came from behind Sharpe, said “Hey man” to Smith, and according to Sharpe's very murky recollection, either touched or grabbed Smith's arm or shirt sleeve or never touched Smith.   The gun fired and Lee fell to the ground.   Smith said “He should have never touched me,” and walked off to a waiting car, which drove off.   Lee died several days after the shooting.   Cause of death was found to be a bullet wound by the left ear from a shot fired at a distance of two to twelve inches.   An autopsy revealed Lee's body contained traces of PCP.

Witness Trina Johnson was sitting in her car by the park when the shooting occurred.   She related several different versions of the incident.   Shortly after the shooting she told police and a passerby Smith walked up to Lee and shot him.   At the preliminary hearing she testified that account was a lie.   At trial she first testified she did not see the shooting.   When she heard a shot, she ducked down in her car, then rose to see Lee on the ground and Smith walking away.   Johnson later testified that this story too was a lie.   In fact she saw Smith approach Lee who was with a group of men not including Sharpe.   In this final version, Smith took a gun, possibly from a bag and shot Lee.   According to Johnson, Lee never touched Smith.

Investigator Velasquez interviewed Sharpe.   Contrary to Sharpe's trial testimony, Sharpe told Velasquez after Smith had returned the $15 to Lee, Lee already mad grew even angrier at Smith because one of the returned bills was torn.   Sharpe noted that from the time Smith first fired the gun, Lee was very upset, angry, distraught, and wanted to fight Smith.   And Sharpe said that as he and Lee approached Smith just before the second shot, they rapidly came straight toward Smith.

Smith's defense was that the killing was an accident.   In support of this position, Richard Whalley, a forensic scientist, concluded the force needed to fire the death weapon when in a cocked position is small enough that the gun may discharge through force applied by a third person and translated to the gun-wielder's trigger finger.   In Whalley's opinion, the fatal shooting may have been the result of someone other than Smith making contact with Smith's shooting arm if the gun was in a cocked position or as a result of someone dealing a blow to Smith's hand, if the gun was in a double action position.   Whalley interpreted the autopsy report as indicating Lee had ingested PCP within three to four hours of the shooting.

DISCUSSION

I

The trial court determined the evidence in support of a finding of involuntary manslaughter was simply too weak to warrant an instruction on that offense.   Smith argues that sufficient evidence was presented at trial to support a jury finding Lee's death occurred as the unintended result of Smith's handling a firearm in a threatening manner, and that he was therefore guilty of the lesser included offense of involuntary manslaughter ² on one of two theories:  first, Lee's death resulted during the commission of Smith's unlawful act in violation of Penal Code section 417 ³ (People v. Carmen, 36 Cal.2d 768, 774–775, 228 P.2d 281;  People v. Wilson, 66 Cal.2d 749, 758–759, 59 Cal.Rptr. 156, 427 P.2d 820), or second, the death resulted from Smith's gross and culpable negligence (People v. McGee, 31 Cal.2d 229, 230, 187 P.2d 706;  People v. Sidwell, 29 Cal.App. 12, 154 P. 290).

II

 A requested instruction on a lesser included offense must be given “[i]f defendant proffers evidence enough to deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men could have concluded ․’ ” that the defendant was guilty of the lesser included offense.  (People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1.)   In evaluating the substantiality of presented evidence, the trial court should not undertake to weigh the credibility of the witnesses.   This task is within the exclusive province of the jury.   The court should resolve all doubts as to the sufficiency of the evidence to warrant the instruction in favor of the accused.  (Flannel, supra, at p. 685, 160 Cal.Rptr. 84, 603 P.2d 1;  see also People v. Wickersham, 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Welch, 137 Cal.App.3d 834, 187 Cal.Rptr. 511.)   In light of our mandate to resolve all doubts as to the sufficiency of the evidence warranting the involuntary manslaughter instruction in Smith's favor, we find evidence enough to warrant an involuntary manslaughter instruction in this case.

The admitted evidence showed victim Lee was angry.   He had expressed the intention to fight Smith.   He and Sharpe walked rapidly towards Smith.   Lee was under the influence of PCP and may have “touched” Smith's shirtsleeve as the gun discharged.   A jury composed of reasonable men could have concluded that the fatal shooting was the unintended result of Lee's contact with Smith in conjunction with Smith's unlawful and/or reckless brandishing of a firearm.   Additional evidence lending support to an “accidental shooting” came from defense expert Whalley's testimony to the effect the nature of the gun and the circumstances of the shooting raised a reasonable inference of accidental discharge of the gun.

It is true contradictory evidence said Lee in fact did not touch Smith as the gun went off.   Such contradictory evidence did not justify the trial court's refusal to instruct on involuntary manslaughter.   Credibility of a witness whose testimony is internally contradictory or at odds with testimony of other witnesses is not to be weighed in determining whether an instruction is warranted.  (Flannel, supra, 25 Cal.3d at p. 685, 160 Cal.Rptr. 84, 603 P.2d 1.)   The People's insistence Whalley's testimony was pure conjecture is not based on fact.   The record is explicit that Whalley's conclusions regarding the shooting were based on a review of the preliminary hearing transcript and physical evidence presented at the preliminary hearing.

The California Supreme Court noted in People v. St. Martin, 1 Cal.3d 524, 83 Cal.Rptr. 166, 463 P.2d 390:

“The general rule is that a defendant is entitled upon request to instructions on necessarily included offenses which the evidence tends to prove.  [Citations.]  ․   The requirement of such instructions on lesser included offenses is based on the elementary principle that the court should instruct the jury on every material question.  [Citation.]   The state has no interest in a defendant obtaining an acquittal where he is innocent of the primary offense charged but guilty of a necessarily included offense.   Nor has the state any legitimate interest in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense.   Likewise, a defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt.   Our courts are not gambling halls but forums for the discovery of truth.”  (Id., at pp. 532–533, 83 Cal.Rptr. 166, 463 P.2d 390;  emphasis added.)

Here the trial court refused an instruction on involuntary manslaughter, while reading murder and voluntary manslaughter instructions.   By instructing on implied malice but not involuntary manslaughter, the court in substance gave the jury, if it found an unintentional killing, a choice of unpalatable alternatives and thus invited the jury to return a murder verdict, rather than acquit, even if it found Smith's conduct not sufficiently wanton and reckless to allow an inference of malice.   In such a scenario, the requested involuntary manslaughter instruction would have given the jury a morally acceptable and legally correct means of assessing Smith's guilt.

 The erroneous failure to instruct on a lesser included offense deprives an accused of his “constitutional right to have the jury determine every material issue presented by the evidence” (People v. Sedeno, 10 Cal.3d 703, 720–721, 112 Cal.Rptr. 1, 518 P.2d 913, disapproved on other grounds in People v. Flannel, supra, 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1) and thus is reversible per se unless it is demonstrated that “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other properly given instructions.”  (Id., 10 Cal.3d at p. 721, 112 Cal.Rptr. 1, 518 P.2d 913.)   In the instant case refusal to give the requested instructions prevented the jury from resolving the factual question of whether Smith's mental state was between that deserving of acquittal and that so wanton and reckless as to constitute second degree murder.   On the instructions given and the verdict returned, all that can be determined is that the jury either found Smith formed an intent to kill, or that lacking such intent his conduct was gross and reckless;  in the absence of an involuntary manslaughter instruction, the crucial estimation of the degree of Smith's recklessness was not and could not have been resolved.   The Sedeno standard was not met;  we must remand for a new trial.

III

Smith asserts error occurred in the giving of CALJIC No. 8.31 in that this instruction does not track the law as set forth in People v. Phillips, 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353.   Smith argues he may not be found guilty of second degree murder unless he acted deliberately with actual subjective awareness of the risk involved.   A similar challenge to CALJIC No. 8.31 was made to this court in People v. Love, 111 Cal.App.3d 98, 107–108, 168 Cal.Rptr. 407, but rejected.   Since the Love decision, however, further light on the subject of implied malice as an element of second degree murder has been shed by the Supreme Court in People v. Watson, 30 Cal.3d 290, 296–297, 179 Cal.Rptr. 43, 637 P.2d 279, and dissenting opinions, page 304, 179 Cal.Rptr. 43, 637 P.2d 279 (Bird, C.J.) and page 308, 179 Cal.Rptr. 43, 637 P.2d 279 (Ibanez, J.).   The Watson majority and dissenting opinions agree as to the mental state required to establish implied malice.

The Watson court majority, in applying the murder statute to circumstances involving a vehicular death, held that to sustain a murder conviction it must be proven the defendant entertained a subjective understanding or awareness of the risk to life posed by the defendant's conduct.   The Supreme Court held in distinguishing between vehicular manslaughter and second degree murder:

“The requisite culpability for the vehicular manslaughter charged here is gross negligence (§ 192, subd. 3(a)), which has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.  [Citation.]   On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.  [Citations;  italics ours.]   Though these definitions bear a general similarity, they are not identical.   Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.  [Citations;  italics ours.]

“Furthermore, we have applied different tests in determining the required mental states of gross negligence or malice.   A finding of gross negligence is made by applying an objective test:  if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.  [Citation.]   However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.  [Citation.]”  4  (People v. Watson, supra, 30 Cal.3d 290, 296–297, 179 Cal.Rptr. 43, 637 P.2d 279.)

It is true the Watson court “was not faced with the issue presented here which is whether the standard CALJIC No. 8.31 adequately instructs the jury. ”  (Italics added.)   The Attorney General's attempt to distinguish Watson on this basis misses its mark.

 Here, the jury was instructed pursuant to CALJIC No. 8.31 which provided in pertinent part at that time:

“Murder of the second degree is [also] the unlawful killing of a human being as the direct causal result of an act involving a high degree of probability that it will result in death, which act is done for a base antisocial purpose and with wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness.” 5

We conclude this instruction is defective in that it does not track the language of the suggested instruction in People v. Washington, 62 Cal.2d 777, 780, 44 Cal.Rptr. 442, 402 P.2d 130 and People v. Phillips, supra, 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353, which was approved in People v. Sedeno, supra, 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913, and most clearly delineated in People v. Watson, supra.   The Washington-Phillips-Sedeno-Watson test for determining implied malice would make possible a conviction of second degree murder upon a finding that:

“ ‘[A]lthough there was no deliberately formed and premeditated intent to kill, the killing proximately resulted from an 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.6

“With the above modification, the instruction fully and accurately imparts to the jury every element of implied malice as that concept has been developed in this state․”  (People v. Phillips, supra, 64 Cal.2d at p. 587, 51 Cal.Rptr. 225, 414 P.2d 353;  italics added.)

The instruction as given could lead the jury to equate a “wanton disregard for human life” with “an awareness of duty imposed by law not to commit [dangerous] acts” and thereby convict based upon a belief in a defendant's mere knowledge or “awareness” of law, not an awareness that his conduct endangers the life of another.   The People in fact concede that implied malice “requires a subjective awareness of risk to life.”

An instruction requiring a subjective awareness of a duty imposed by law not to commit acts contrary to law is not equivalent to requiring a subjective awareness of the acts' risk to life.   The former requires an awareness of the duty to obey the law and follow social mores;  the latter requires an awareness that shooting a bullet at the head of another at close range involves a risk to life.

The source of the last sentence of CALJIC No. 8.31 appears to be People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911, where in a context of diminished capacity analysis the court (Traynor, J.) stated:

“A person capable of achieving such a mental state is normally capable also of comprehending the duty society places on all persons to act within the law.   If, despite such awareness, he does an act that is likely to cause serious injury or death to another, he exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought.   An intentional act that is highly dangerous to human life, done in disregard of the actor's awareness that society requires him to conform his conduct to the law, is done with malice regardless of the fact that the actor acts without ill will toward his victim or believes that his conduct is justified.   In this respect it is immaterial that he does not know that his specific conduct is unlawful, for all persons are presumed to know the law including that which prohibits causing injury or death to another.   An awareness of the obligation to act within the general body of laws regulating society, however, is included in the statutory definition of implied malice in terms of an abandoned and malignant heart and in the definition of express malice as the deliberate intention unlawfully to take life.”  (Id., at p. 322, 49 Cal.Rptr. 815, 411 P.2d 911;  italics added.)

There are both legal and logic barriers that preclude acceptance of the concept of an awareness of an obligation to act within the general body of laws regulating society as a substitute for the requirement of a subjective awareness of risk to life.

The cases cited by the People in arguing for such acceptance, with one exception, address the issue of implied malice in the context of diminished capacity as a defense to its proof.  (See People v. Poddar, 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342;  People v. Conley, supra, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911;  People v. Odom, 108 Cal.App.3d 100, 166 Cal.Rptr. 283;  People v. Carpenter, 99 Cal.App.3d 527, 160 Cal.Rptr. 386;  People v. Fusselman, 46 Cal.App.3d 289, 120 Cal.Rptr. 282;  People v. Caylor, 259 Cal.App.2d 191, 66 Cal.Rptr. 448;  People v. Welborn, 257 Cal.App.2d 513, 65 Cal.Rptr. 8, disapproved on other grounds in People v. Wetmore, 22 Cal.3d 318, 324–326, 149 Cal.Rptr. 265, 583 P.2d 1308.)  People v. Eckstrom, 43 Cal.App.3d 996, 1007, 118 Cal.Rptr. 391, is the factual exception involving “malice aforethought ” in a first degree murder setting.   Eckstrom, relying on Justice Traynor's above-quoted sentence from Conley held the awareness of the duty to act within the general body of laws regulating society “ ‘is included in the statutory definition of implied malice in terms of an abandoned and malignant heart and in the definition of express malice as the deliberate intention unlawfully to take life.’ ”  (Eckstrom, at p. 1007, 118 Cal.Rptr. 391.)   The leading case of People v. Sedeno, supra, 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913, illustrates the inapplicability of this rule beyond a diminished capacity setting.   The Sedeno court reversed because the jury was not told evidence of diminished capacity could rebut “the presumption that a person is able to comprehend the prohibition of acts dangerous to human life and the obligation to conform his conduct to the law.”  (Sedeno, at pp. 723–724, 112 Cal.Rptr. 1, 518 P.2d 913.)

In contrast, Watson, supra, and Phillips, supra, were not dealing with evidence of diminished capacity and rebutting a presumption of sanity, and in the case at bench the diminished capacity constellation of rules and presumptions never arose, has no applicability.   It is no coincidence that Sedeno, Poddar, Conley, and the other cases relied on by the People did discuss these interrelated issues and most aptly focus on the comprehension of duty requirement.   In diminished capacity cases comprehension of duty is interwoven in the legal matrix.

Is the Washington-Phillips-Watson requirement of a subjective awareness of risk to life contrary to the Sedeno-Poddar rules?   Without doubt the answer is no.  People v. Poddar, supra, 10 Cal.3d 750, 759–760, 111 Cal.Rptr. 910, 518 P.2d 342, discusses implied malice in this fashion:

“Malice is properly implied when a killing resulting from an act involving a high degree of probability of death is accompanied by the requisite mental element.   The process properly leading to a finding of that element requires three specific determinations.   First, was the act or acts done for a base, antisocial purpose?   Second, was the accused aware of the duty imposed upon him not to commit acts which involve the risk of grave injury or death?   Third, if so, did he act despite that awareness?”

Poddar was a diminished capacity case as we have noted.   The Poddar court was concerned with formulating a definition of implied malice that would be responsive to the particular problems posed by the deficient mental state defense.  Poddar asks:  Was the act done for a base, antisocial purpose and with awareness of the duty not to commit acts which endanger life, and “if so, did [the accused] act despite that awareness? ”  (Id. at p. 760, 111 Cal.Rptr. 910, 518 P.2d 342;  italics added.)

 Given the fact the accused must have “acted” (or he would not be charged with a crime), once it was determined he had awareness of the duty not to commit dangerous acts, it would be superfluous and obvious to ask whether, on the objective level, he acted despite that awareness.   The third element of Poddar's test would be a mere redundancy, a truism.   To give substantive meaning to that element, as well as ensure consistency with the Phillips line of authority, the phrase “despite that awareness” should be interpreted as including the subjective test:  did the accused know that his act was in violation of the duty not to commit dangerous acts?

Finally, Poddar reversed the trial court because instructions relating the defense of diminished capacity to each of the enumerated elements were not given.   With respect to the elements in question here, the court said:

“At no time were [the jurors] specifically told that the evidence of diminished capacity was directly applicable to the questions of whether defendant was both aware that he must act within the law, and that he acted despite such awareness.”  (Poddar, at p. 760, 111 Cal.Rptr. 910, 518 P.2d 342.)

Thus, the precise holding of Poddar requires giving a subjective construction to the third Poddar element.   If the third element were a purely objective one, it is difficult to see how diminished capacity could be a defense to it.   The Poddar court conceived of the element as including a test of awareness, a mental state or states, different in some way from the preceding element.   Since the Poddar court knew and approved of Phillips (Sedeno, a companion case to Poddar, quoted Phillips approvingly (People v. Sedeno, supra, 10 Cal.3d at 722–723, 112 Cal.Rptr. 1, 518 P.2d 913)), it is most rational to give the three-pronged Poddar test an interpretation consistent with that case and thus to read the third element as including the Phillips requirement.

 The People argue the “awareness can be assumed,” no instruction is needed.  “If one is aware of a social duty not to commit a particular life endangering act, it may be assumed he is aware he is actually risking life by doing the act condemned by society.”   The California Supreme Court's opinion (People v. Watson, supra ) is to the contrary.   A jury may return a verdict of involuntary manslaughter on the assumption the defendant was aware of the risk involved.   But to convict of second degree implied malice murder, the jury must make a determination that the defendant in fact subjectively appreciated the risk.   The difference between the two offenses is that for murder an assumption is simply not good enough.   The Watson court said:

“A finding of gross negligence is made by applying an objective test:  if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such awareness.  [Citation.]   However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.”  (Watson, supra, 30 Cal.3d 290, 296–297, 179 Cal.Rptr. 43, 637 P.2d 279.)

The jury instruction as given did not underline this distinction.   The last sentence of the 8.31 instruction has the same inherent vice as that criticized in Phillips.   It “invite[d] confusion and unguided speculation.”  (Phillips, supra, 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353.)

 The trial court must instruct sua sponte on the general principles of law applicable to the case, including at a minimum the elements of the charged offense.   The People have agreed a subjective awareness of risk is one of the elements of implied malice.  Watson compelled this concession when the Supreme Court declared unequivocally awareness of risk is a requirement of implied malice.   The jury must also be let in on this secret.   Upon any retrial the jury must be instructed in line with the Washington-Phillips-Sedeno-Watson standard that murder of the second degree is the unlawful killing of a human being as the direct causal result of an act involving a high degree of probability that it will result in death, which act is done for a base antisocial purpose and with wanton disregard for human life, by which is meant with knowledge that the act endangers the life of another and with conscious disregard for life, if it is to have any hope of distinguishing between second degree implied malice murder and involuntary manslaughter.

IV

 In light of reversal required on the ground of lack of correct or requisite instructions, we are not compelled to reach Smith's other assertions of error, arguments for reversal.   However, for guidance on any retrial we briefly analyze Smith's contentions.   First, Smith claims trial court error in admitting testimony of a police officer recounting Sharpe's statements several days after the fatal shooting that the shooting was “a ruthless killing;  that it was not worth why it happened” and that “it was a cold incident, that it just should not have happened for the reasons that it occurred.”   Smith is correct.   This testimony is classically inadmissible hearsay.   However, the trial court's admission of the statements does not per se constitute reversible error.   These statements are not “a devastating description of malice.”   It does not appear a result more favorable to Smith would have occurred in the absence of their admission.  (See People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243;  People v. Dehnel, 99 Cal.App.3d 404, 160 Cal.Rptr. 279.)   Upon retrial unless some lawful basis for admission of this conclusory hearsay is demonstrated, it should be excluded.

 Finally, Smith contends that the trial court delivered an unbalanced statement of the law of voluntary manslaughter when it read CALJIC Nos. 8.40 and 8.42, but not CALJIC No. 5.17.   The Flannel court held that a killing in the honest but unreasonable belief in the need to defend oneself against death or great bodily injury is voluntary manslaughter.  (Flannel, supra, 25 Cal.3d 668, 680, 160 Cal.Rptr. 84, 603 P.2d 1.)   CALJIC No. 5.17 sets out this imperfect self-defense standard necessary for Flannel -type voluntary manslaughter.   In contrast CALJIC Nos. 8.40 and 8.42 present the traditional “sudden quarrel” or “heat of passion” theory of voluntary manslaughter, which requires that the situation in which an accused found himself or herself would have aroused the passion of the ordinary reasonable person.   CALJIC No. 8.40 additionally refers to Flannel -type voluntary manslaughter, in instructing in pertinent part:

“There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion, [or] [in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury].”

Smith suggests that the single reference to “honest but unreasonable belief in the necessity to defend” in CALJIC No. 8.40 was effectively cancelled out by the court's subsequent fourfold repetition of the objective heat of passion standard of voluntary manslaughter, in reading the balance of CALJIC Nos. 8.40 and 8.42.   Smith alleges error in the trial court's failure to deliver CALJIC No. 5.17 to the jury, despite Smith's failure to request the instruction.

Sua sponte instruction is required only on “the general principles of law governing the case, i.e., ․ ‘those principles of law commonly or closely and openly connected with the facts of the case before the court’ ” (Flannel, supra, 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1), or, in the specific context of lesser included offenses, only when “the evidence would justify a conviction of such offenses.”  (People v. Wickersham, supra, 32 Cal.3d 307, 325, 185 Cal.Rptr. 436, 650 P.2d 311.)   Smith argues that evidence of Lee's anger, visible PCP intoxication and desire to fight, Smith's unprecedented hysteria, and the beginnings of an altercation initiated by Lee just prior to Smith's firing the initial shot went toward establishing a theory of imperfect self-defense.   He also contends that imperfect self-defense was clearly argued to the jury, in the following:

“Jackie Sharpe ․ and Lee are advancing on Kenneth Smith, Lee is angry.   He wants to fight.   Kenneth Smith is hysterical.   You add to the fact that Lee's actions have been erratic, have been bizarre.   Whether they were due to drugs or PCP, he's been—his actions are varied from crying to anger.   His actions have been erratic.   And if you add to that the volatile situation you cannot believe that Kenneth Smith—and you also believe that Kenneth Smith intended to kill Timothy Lee—then at this point, he is guilty of voluntary manslaughter.”

The imperfect self-defense theory of voluntary manslaughter did “commonly” or “openly connect” with the cited evidence and jury argument to the degree the trial court should have instructed upon it sua sponte.   The cited evidence, under Wickersham, would justify a conviction for Flannel -type voluntary manslaughter.   This failure to instruct, however, does not constitute reversible error for these reasons:  Under the Sedeno standard “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other properly given instructions” (10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913) the jury was read CALJIC No. 8.40, which defines voluntary manslaughter as, inter alia, a killing motivated by an honest but unreasonable belief in the need to defend against great bodily injury, and the jury heard closing argument regarding Flannel -type voluntary manslaughter.   Assuming the jury properly applied CALJIC No. 8.40 to the facts before it, as we must, it is clear that the jury necessarily determined that Lee's killing was not motivated by Smith's unreasonable fear of bodily harm, because it returned a verdict of second degree murder.   Nevertheless, this failure to give the complete instruction should be avoided on any retrial.

Judgment reversed.

I concur in the majority opinion (with some discomforture about describing CALJIC No. 5.17 as instructing on “imperfect self-defense,” a phrase I believe is misleading) except for that portion of Section III which states the several discussions in People v. Watson, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, shed new light on the adequacy of CALJIC No. 8.31, in addition to that illuminating the judicial scene when People v. Love, 111 Cal.App.3d 98, 168 Cal.Rptr. 407, was decided by this court.   In fact, Watson merely restates that long standing decisional definition of implied malice referred to in the lead opinion as the Washington-Sedeno-Phillips rule.   It is only in distinguishing this settled law from the lesser findings necessary to presume a person acts with gross negligence, that Watson “sheds new light.”

The authors of CALJIC No. 8.31, in the form given (1981 Rev.), could not have been unaware of the holding of Washington and its progeny.   This court specifically recognized it in deciding People v. Love and holding the instruction sufficient.   Out of deference to that decision by a different panel of this appellate division, so recently approved in our decision in People v. Summers, 147 Cal.App. 180, 195 Cal.Rptr. 21 (1983), I would not reverse if the adequacy of CALJIC No. 8.31 were the sole issue on this appeal, preferring to leave overruling of Love to the Supreme Court and merely admonish the trial court to expand the instruction as stated in the body of this opinion at retrial.¹

I concur in the result based on the failure to give the instruction on involuntary manslaughter as a lesser included offense.

FOOTNOTES

1.   Smith was sentenced to prison for 18 years to life, representing 15 years to life for murder and enhancements of two years for firearm use and one year for a prior felony conviction (Pen.Code, § 667.5) admitted by Smith.

2.   Involuntary manslaughter is the “unlawful killing of a human being ․ in the commission of an unlawful act, not amounting to a felony;  or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection.”  (Pen.Code, § 192.)

3.   “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor.”  (Pen.Code, § 417, subd. (a)(1).)

4.   The dissenting justices agree with the majority on this issue.   Said Chief Justice Bird:  “At the preliminary hearing, the prosecution was required to present evidence of each element of a murder based on an implied-malice theory.  [Citations.]  As the majority recognize, those elements are that the accused, ‘knowing that his conduct endanger[ed] the life of another, nonetheless act[ed] deliberately with conscious disregard for life.’  (Maj. opn. at p. 296.)   In other words, the accused must have (1) intended to commit an act likely to kill with (2) conscious disregard for life.  [Citation.]”  (Watson, at p. 304, 179 Cal.Rptr. 43, 637 P.2d 279;  italics added.)And Justice Ibanez observed:  “Implied malice requires a higher degree of awareness states the majority.   In determining whether the greater or the lesser offense has been committed by the defendant motorist, the degree as well as the nature of his awareness of the risk involved must be resolved by the finder of fact.   For a finding of implied malice, the ‘actually knows' or subjective test is to be applied, i.e., Did the defendant motorist actually foresee the dangerous consequences?   Did he actually appreciate the risk involved?  [Citation.]   The majority further points out implied malice involves an element of wantonness which is absent in gross negligence [citations].  (Maj. opn., at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279.)”  (Watson, at p. 308, 179 Cal.Rptr. 43, 637 P.2d 279;  fn. omitted.)

5.   The 1981 revision of CALJIC No. 8.31 reads in pertinent part:  “Murder of the second degree is [also] the unlawful killing of a human being as the direct causal result of 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 wanton disregard for human life.”

6.   This court in its most recent opinion, People v. Simmons, 147 Cal.App. 180, 195 Cal.Rptr. 21, defines implied malice in Washington-Phillips-Sedeno-Watson terms.  (Pp. 184–185, 195 Cal.Rptr. 21.)

1.   Recent amendments to Penal Code section 188 seemingly call for even further amendments, and judicial interpretation, of the elements necessary to form implied malice.

STANIFORTH, Associate Justice.