PEOPLE v. WICKERSHAM (1981)

A jury found appellant, Dorothy Suzanne Wickersham, guilty of the first degree murder of her husband, Curtis Lee Wickersham, and that she used a firearm in the commission of the offense. The trial court struck the use finding and sentenced appellant to the term prescribed by law (25 years to life (Pen.Code, s 190)). This appeal followed.

Appellant contends that the trial court erred in (1) failing to instruct the jury, sua sponte, on the lesser included offenses of second degree murder and voluntary manslaughter; (2) failing to give cautionary accomplice instructions; and (3) permitting the prosecution to question appellant about an extra-marital affair in which she was involved four years prior to the homicide.

STATEMENT OF THE FACTS

Appellant and the victim separated in February, 1979, leaving appellant and their five children (ages six to twelve) in the family home in Novato, Marin County. The homicide occurred seven months later, on September 8, 1979.

Appellant was the only witness to the killing; therefore, the prosecution relied on circumstantial evidence to support its theory that she had committed premeditated murder. Several of appellant's friends and acquaintances testified to admissions. For example, Paulette Bocciacca testified that about a month after the separation appellant told her that she did not want to go to work and that if she killed her husband, her financial worries would be over.

In May, 1979, appellant hired Andrew Stavish, a 25 year old carpenter, to build a deck for her. They became sexually involved. After a few weeks appellant expressed that she wanted her husband out of her life. Stavish told her that it would be easy to kill someone and get away with it. She offered him $5,000 to kill her husband; he countered with an offer to do it for $10,000. They discussed killing her husband a number of times, exploring where, when, and how it might be done. Stavish advised appellant that if the killing were with a gun, the weapon should be fired close and quickly. Ultimately Stavish said he was tired of hearing about her plans, and she said she would kill him herself. Appellant asked Ms. Bocciacca to help her find a way to do it, but she refused.

Appellant discussed with several witnesses the possibility of drugging her husband with wine and valium or other drugs. This was in conjunction with her desperate attempts to elicit information from him regarding the woman he began dating after the separation.

Appellant told Ms. Bocciacca about an incident in which she was riding in a car with the victim and two children. She pulled the victim's gun from the glove compartment and later regretted not having pulled the trigger. Appellant told her marriage counselor that she had pointed the gun at the victim but did not know what she meant to do. Appellant also told Ms. Bocciacca about an incident in which she chased her husband in his automobile while driving her own and rammed his car twice.

The Shooting

In the early afternoon of September 8, appellant called the Novato Fire and Police Departments requesting assistance because of a shooting in her home. The call, which was recorded, revealed that appellant was hysterical. When paramedics arrived, they found the victim dead, lying face down at the top of the stairs outside the main bedroom, his arms and a portion of his head through a railing at that spot. He had died of a gunshot wound of the chest caused by a single bullet which had entered above his right nipple and traveled through the body in an essentially horizontal path.

The first officer on the scene described appellant as in an hysterical-type condition. She made a number of statements between episodes of hysteria, including, “He went crazy, you know He pulled the hammer back. We were in the bedroom. He was so depressed. He had been with the kids all day.” “He was depressed. He went crazy and started towards me. His hand went into his pocket. And I know he carries a gun there. And then he pulled the hammer back.” “It was an accident. I didn't have any malice.” “My husband was with the kids. He brought them home; was very depressed. He hadn't seen them for two months. He saw the gun and went crazy. You know how he was. The people he worked with can verify it. He's been acting strange.”

When the officer asked where the gun was, she pointed it out on top of a hot water heater in a neighbor's garage. The gun contained two expended rounds and three live rounds, one of which was under the hammer. It would be necessary to cock the gun to move a live shell into the chamber after it had been fired. If partially cocked, the cylinder would not rotate completely unless manipulated by hand or otherwise moved. Appellant's gun could be discharged only by pulling the trigger, regardless of whether or not it had been cocked.

A shirt was found at the crime scene which appeared to have been wrapped around the gun when it was fired.

Defense Case

Appellant testified in her own behalf. She denied or explained most of her pre-shooting incriminating statements. She specifically denied asking Stavish to kill her husband. She believed her husband was on the verge of violence, though he never assaulted her. Although he normally carried his gun in his briefcase, he sometimes tucked it in his waistband. He was an investigator for the U. S. Customs Service. She admitted once putting valium in his wine, but only in hopes of calming him.

Appellant bought the gun in July, 1979, for home protection. On the morning of the shooting the victim came to the home by prearrangement to see the children and to collect some of his belongings. Appellant was in a good frame of mind, and terms were friendly between them. He took the children to lunch while she packed some of his things. When he returned from lunch, they went to the bedroom. As appellant started to remove a stack of the victim's shirts from the closet shelf, the gun was revealed, and the victim asked about it. Appellant replied that it was hers and became fearful that he would attempt to take it. She scooped up the gun and the shirts because “ I just knew I didn't want him to have the gun I wasn't going to be in the same room with the gun with him. I didn't think about it. It was just reflex, I think, to grab it.”

The victim reached out, apparently in an effort to get the gun. The two scuffled with the wad of shirts, and the gun went off. Appellant did not pull the trigger deliberately. She was certain that she did not exert the pressure necessary to pull the trigger. She had no desire to hurt her husband.

The victim was stunned and backed away. He reached toward his hip, and appellant feared he had a gun. She noticed two of her children and shoved them downstairs. She did not see how he fell.

A number of witnesses testified to appellant's good character and nonviolent nature.

DISCUSSION

I. Whether the court erred in failing to instruct, sua sponte, on lesser included offenses of second degree murder and voluntary manslaughter

Appellant's principal contention is that prejudicial error occurred when the trial court instructed the jury only on first degree murder and involuntary manslaughter but failed to instruct on the lesser included offenses of second degree murder and voluntary manslaughter.

The applicable legal principles were summarized in People v. Sedeno (1974) 10 Cal.3d 703, 715-716, 112 Cal.Rptr. 1, 518 P.2d 913, as follows: “ ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (Citations.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.’ (People v. St. Martin (1970) 1 Cal.3d 524, 531 (83 Cal.Rptr. 166, 463 P.2d 390).) That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present (see, e. g., People v. Hood (1969) 1 Cal.3d 444 (82 Cal.Rptr. 618, 462 P.2d 370)), but not when there is no evidence that the offense was less than that charged. (People v. Noah (1971) 5 Cal.3d 469, 479 (96 Cal.Rptr. 441, 487 P.2d 1009); People v. Osuna (1969) 70 Cal.2d 759, 767 (76 Cal.Rptr. 462, 452 P.2d 678).) The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. 6 (People v. Mosher (1969) 1 Cal.3d 379, 393 (82 Cal.Rptr. 379, 461 P.2d 659); People v. Graham (1969) 71 Cal.2d 303, 319 (78 Cal.Rptr. 217, 455 P.2d 153).) Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. (People v. St. Martin, supra, 1 Cal.3d 524, 533 (83 Cal.Rptr. 166, 463 P.2d 390).)” (Emphasis added.) The court's footnote 6 provides: “Failure to give such an instruction over objection does not require reversal, however, since the error is invited. (People v. Phillips (1966) 64 Cal.2d 574, 581 (51 Cal.Rptr. 225, 414 P.2d 353).)”

Evidence of Lesser Offenses

Voluntary manslaughter is “the unlawful killing of a human being, without malice upon a sudden quarrel or heat of passion.” (Pen.Code, s 192.) In People v. Borchers (1958) 50 Cal.2d 321, 329, 325 P.2d 97, cited with approval in People v. Berry (1976) 18 Cal.3d 509, 515, 134 Cal.Rptr. 415, 556 P.2d 777, the Supreme Court explained that “ ‘passion’ need not mean ‘rage’ or ‘anger.’ ” It “may be any ‘(v)iolent, intense, high-wrought, or enthusiastic emotion.’ ” There is no specific type of provocation required; verbal provocation may be sufficient. (Ibid.)

Murder of the second degree is the unlawful killing of a human being with malice aforethought, but the evidence is insufficient to establish deliberation and premeditation. (CALJIC No. 8.30; Pen.Code, s 189.)

Fear is one of the emotional states which can serve to reduce an intentional killing effected under its influence from murder to manslaughter. If a homicide is committed “under the influence of an uncontrollable fear of death or great bodily harm,” albeit an unreasonable fear, “the killing is manslaughter.” (If the fear is reasonable, the homicide is justifiable.) (People v. Lewis (1960) 186 Cal.App.2d 585, 598, 9 Cal.Rptr. 263; see also, People v. Flannel (1979) 25 Cal.3d 668, 681-682, 160 Cal.Rptr. 84, 603 P.2d 1.)

The record before us contains an abundance of evidence from which the trier of fact could have found that appellant's mental state was such that the killing of the victim constituted voluntary manslaughter. For example, appellant's mental state immediately after the shooting was described by police officers who were prosecution witnesses as “hysterical.” Her pastor, who arrived on the scene almost immediately, stated that she was “very upset and wrought” and “sobbing.” In closing argument the prosecutor conceded the existence of substantial evidence of emotional hysteria.

There was substantial evidence that appellant feared her husband. Her testimony about the shooting itself indicated that she acted as she did because she feared the victim would take the gun from her, and she did not want to be alone with him under those circumstances. Evidence of such fear, even if it is unreasonable, provides support for a manslaughter verdict.

The essence of appellant's version of the killing was that the victim was accidentally shot during a scuffle. Thus, “the fact of the killing is conceded and only the circumstances under which it was committed are under dispute.” (People v. Jeter (1964) 60 Cal.2d 671, 676, 36 Cal.Rptr. 323, 388 P.2d 355.) In this situation the jury has a “right to believe only that portion of (appellant's) testimony which negates that (she) acted with wilfulness, deliberation, or premeditation.” (Ibid.) Therefore, even if the jury rejected appellant's testimony that she did not deliberately shoot the victim, they might have accepted her testimony that the shooting occurred during a sudden scuffle, reasoning that the stimulus for the sudden quarrel lay in the evidence of fear, anger, jealousy, and other strong passions. Under these circumstances, the jury should have been instructed on voluntary manslaughter. (People v. Dewberry (1959) 51 Cal.2d 548, 557-558, 334 P.2d 852.)

Finally, there was ample evidence from which the jury could have concluded that there was reasonable doubt whether appellant harbored malice aforethought. For example, appellant denied having discussed killing her husband with prosecution witnesses who testified to the contrary. Appellant offered a reasonable explanation for the appearance of powder burns on the shirt. And appellant's divorce attorney testified that she had entered into a property settlement agreement whereby upon divorce she waived certain financial gains she would otherwise have received on her husband's death. Also, there was substantial evidence presented by the defense of appellant's excellent and nonviolent character. The latter alone is sufficient, if believed, to raise a reasonable doubt that appellant acted with malice aforethought. (See People v. Bridgehouse (1956) 47 Cal.2d 406, 414, 303 P.2d 1018.) On the other hand, the jury might have interpreted the evidence as showing that appellant harbored malice but that the killing was not premeditated, thus requiring an instruction on second degree murder.

Our review of the evidence compels the conclusion that the trial court erred in failing to instruct, sua sponte, on voluntary manslaughter and, a fortiori, second degree murder.

Invited Error

The People all but concede error but argue that it was “invited” by defense counsel and therefore does not compel reversal. (People v. Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913.)

The rule requiring the trial court to instruct sua sponte “is designed to afford protection against the inadvertence of trial counsel.” (People v. Hood, supra, 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370.) Its purpose is “ ‘to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries of ineptness of counsel under the adversary system.’ ” (People v. Flannel, supra, 25 Cal.3d at p. 683, 160 Cal.Rptr. 84, 603 P.2d 1.)

Therefore, where it appears on the record that counsel's failure to request an instruction on a lesser included offense or his objection to the giving of such instruction is an intentional tactical decision and not the result of inadvertence or ineptness, the error of the trial court in failing to give the instruction is “invited” and cannot be raised on appeal. (People v. Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Phillips, supra, 64 Cal.2d 574, 580-581, fn. 4, 51 Cal.Rptr. 225, 414 P.2d 353.)

In the case at bench, the defense theory was clearly that her husband had been accidentally shot while appellant was attempting to keep him away from her gun. Appellant denied deliberately pulling the trigger and did not know what caused the gun to go off. She did not intend to hurt or kill him when the gun was fired. Defense counsel specifically requested that an instruction on the lesser included offense of involuntary manslaughter be given. In the discussion on instructions, the record shows the following colloquy between court and counsel:

“THE COURT: And, last, the Defendant did request the lesser-included instructions, particularly 17.10, the introductory, and the involuntary manslaughter instructions, 8.45, 8.46, and 3.32.

“Is that what your request is?

“MR. WEISSICH (defense counsel): Yes, your Honor.”

It is true that there is no express verbal statement by appellant's counsel that he objected to instructions on second degree murder or voluntary manslaughter. However, from the record in this case it is clear that counsel made a deliberate tactical decision as well as an express non-verbal statement to limit the lesser included offense to involuntary manslaughter. In this instance, the actions of appellant's counsel spoke just as loudly and as clearly as words could have done.

The record in this case leaves no doubt that defense counsel intentionally, and for tactical purposes, chose to limit the lesser included offenses to involuntary manslaughter. That he did not verbally state that intention or expressly object to instructions on other lesser offenses is irrelevant. Given his request for involuntary manslaughter and the thrust of his argument to the jury, it cannot be said that counsel acted from neglect, mistake, ignorance, or inadvertence.¹ Therefore, the error in failing to give sua sponte instructions on voluntary manslaughter and second degree murder was invited by appellant and may not be challenged on appeal.

II. Accomplice instructions

Appellant next contends that Stavish was an accomplice and that therefore the court erred in failing to instruct sua sponte on that fact and on the necessity that his testimony be corroborated.

An accomplice is one who is liable for prosecution for the identical offense charged against the defendant. (Pen.Code, s 1111; People v. Tewksbury (1976) 15 Cal.3d 953, 960, 127 Cal.Rptr. 135, 544 P.2d 1335.)

The record does not support this contention. At most it shows that Stavish knew appellant was thinking about killing her husband and that they seriously discussed the matter. Even if there was a conspiracy, Stavish withdrew from it months before the killing. Nothing indicates he could have been prosecuted for the crime. No error occurred.

III. Evidence of extra-marital affair

Appellant also cites as prejudicial error the court permitting her to be cross-examined regarding an extra-marital affair she had several years before the homicide. Appellant had testified that the reasons for her separation from the victim were the undue amount of traveling required by his job and his unfaithfulness while traveling. She also testified that she did not contemplate separation until after the couple returned to the mainland after living in Hawaii. Evidence of a two-month affair she had while they lived in Hawaii was relevant, as it tended to impeach her credibility on this point. (Evid.Code, ss 210, 351.)

Even if the evidence should have been excluded, it was quite brief, was not emphasized, and could not have prejudiced appellant's case, given the other evidence against her.

Judgment of conviction is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  We take judicial notice that Who's Who in American Law (2d ed. 1979) p. 959 indicates that defense counsel, William Otto Weissich, received his J. D. cum laude from the University of San Francisco in 1946. He served as deputy district attorney for Marin County between 1950 and 1952 and as district attorney between 1953 and 1960.

ANELLO, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

SCOTT, Acting P. J., and BARRY-DEAL, J., concur.