PEOPLE v. RENTERIA (1987)

A jury found defendant guilty of voluntary manslaughter, a lesser but necessarily included offense in the crime of murder with which defendant was charged.   He appeals from the judgment of conviction entered upon the verdict.   We affirm.

On appeal defendant contends (1) that the trial court improperly curtailed his counsel's voir dire examination of the jury, (2) that it was error to admit a statement he made during the booking process, and (3) the trial court improperly failed to instruct the jury on the elements of involuntary manslaughter.

Briefly stated, the facts are that defendant, while drinking beer at a bar, exchanged angry words with the victim and then invited him to “come outside” to fight.

Once outside, defendant shot the victim three times with a gun he carried in his pocket.   The third shot was fired after the victim was on the ground.   Defendant fled the scene, changed clothes and cars before attempting to return home where the police were waiting to arrest him.   The victim was unarmed.   The fatal weapon and additional ammunition were recovered from defendant's car.

At the police station, during the booking process, defendant volunteered that he had purchased the weapon from an unknown person five weeks earlier and that he, the defendant, believed the gun was stolen.

Defendant testified at trial that when the victim came out of the bar he struck the victim with his fist.   When the victim retreated and made a gesture as if to be reaching into his pocket, defendant shot him.

According to defendant, victim was a recent arrival from Mexico which fact led defendant to believe that victim might carry a gun since, according to him, many Mexicans newly here carry guns.

THE TRIAL JUDGE'S CURTAILING OF VOIR DIRE WAS WELL WITHIN THE BOUNDS OF ITS DISCRETION

Before jury questioning began, the trial judge read to the jury certain instructions which included the principles of self defense and justifiable homicide.¹  The jurors were then questioned as to their willingness to follow the court's instructions.

In People v. Williams (1981) 29 Cal.3d 392, 174 Cal.Rptr. 317, 628 P.2d 869, relied on by defendant here, the Supreme Court held that voir dire can include questions aimed at determining the wisdom of exercising peremptory challenges.   Such questions can also include those designed to expose a juror's bias in regard to a particular principle of law.   On the other hand, the trial court still retains wide discretion in controlling voir dire.

Because of a tendency of many attorneys to use voir dire as a tool to indoctrinate jurors or to create a favorable predisposition to their cause, jury selection in California has become probably the most time consuming and cumbersome phase of the criminal justice system.

 For this reason, it is important that trial courts be aggressive in preventing the misuse of voir dire.   Often the line between proper and improper voir dire is a fine one.   Unless a precluded question is clearly relevant and designed to expose juror attitudes antithetical to the defendant's case, we will defer to the trial court's discretion in prohibiting it.

Here, defendant appears to have been the beneficiary of an exceptionally sympathetic jury.   Under the facts of this case, the verdict is the most favorable which defendant could have reasonably expected.

We are not disposed to lengthen this opinion by detailed repetition of the various colloquys between defense counsel, the jurors and the court.   Suffice to say, after reviewing the entire record, we are persuaded that defendant's counsel was given all of the latitude to which he was entitled in examining the juror's attitudes toward the doctrine of self defense.

THERE WAS NO ERROR IN ADMITTING DEFENDANT'S STATEMENT MADE DURING THE BOOKING PROCESS

Defendant challenges the admissibility of the statement on two bases:  (1) failure to give the Miranda warnings and (2) relevancy.

First, the facts as divulged in a hearing conducted pursuant to Evidence Code section 402 ² show that although defendant was not given Miranda warnings, he was neither questioned nor interrogated concerning his acquisition of the gun.   During the booking process he was asked only questions necessary to complete that process.

 When defendant observed one of the arresting officers examining the weapon and the ammunition which had been retrieved from his vehicle, he volunteered the statement as to the circumstances of how he acquired the gun.   Thus there was no real issue as to the voluntary nature of the statement or the need for Miranda warnings.

 Next, after hearing arguments from both parties concerning the trial court's exclusion of the statement pursuant to Evidence Code section 352,³ the trial court accepted the prosecution's argument that the statement was relevant to the validity of defendant's claim of self defense.

Here, defendant had contended that he carried the gun solely for self protection.   The prosecution argued that there is a qualitative difference between arming one's self for protection with a legally acquired weapon and carrying a weapon acquired under illicit circumstances.

 We see no abuse of discretion that would warrant a reversal of the judgment.   In any event, the verdict suggests that the error, if any, was harmless beyond any reasonable doubt.  (See People v. Frank (1985) 38 Cal.3d 711, 214 Cal.Rptr. 801, 700 P.2d 415).

THE JURY WAS PROPERLY INSTRUCTED

On the premise that the jury somehow could have found that he did not intend to kill the victim but was merely criminally negligent in his use of the weapon, defendant contends that the trial court should have instructed on the elements of involuntarily manslaughter.⁴  Citing several cases which are factually distinguishable, defendant argues that voluntary manslaughter requires a specific intent to kill and that absent such intent, the crime is involuntary manslaughter.

 Defendant made no request for such an instruction.   The issue then is whether, under the facts, it was the duty of the trial court to give the instruction sua sponte.   The duty to instruct sua sponte is simply the duty to instruct on the principles of law that are applicable to all criminal prosecutions and those which are made applicable by the evidence in a particular case.  (People v. Stewart (1976) 16 Cal.3d 133, 140, 127 Cal.Rptr. 117, 544 P.2d 1317;  People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390;  People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.)

Defendant testified in detail concerning his belief that the victim was armed and would kill him if he did not resort to deadly force.   He concedes that the shooting was intentional.   At no time did he testify that he intended anything other than to kill the victim before the victim killed him.

Manslaughter like murder, or for that matter any true crime, requires an act and a culpable state of mind or mens rea.

The mens rea of murder is characterized as “malice aforethought.”  Penal Code section 188 provides that “Such malice may be expressed 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.”   It is found in (1) an intent to kill, (2) an intentional commission of an act dangerous to life without a specific intent to kill, or (3) commission of a dangerous felony.   Professor Perkins describes malice as an “unjustifiable, inexcusable and unmitigated man-endangering-state-of-mind.”  (Perkins, Criminal Law (1969, 2d ed.) p. 48.)

Manslaughter is an unlawful killing without malice.   The mens rea of voluntary manslaughter is not specifically described in Penal Code section 192 which speaks only of an “unlawful” killing upon a “sudden quarrel or heat of passion.”   By reference to Penal Code section 188, case law has developed the principle that where reasonable provocation is coupled with a “sudden quarrel” or “heat of passion”, there is no malice and a killing under such circumstances while still unlawful is only voluntary manslaughter.   Thus, if a killing which would ordinarily amount to murder is mitigated to the extent that malice is found to be absent, the crime amounts to voluntary manslaughter.

 Stated affirmatively, the mens rea for voluntary manslaughter is a derivative of malice or a “mitigated” malice.   In other words, a state of mind which would amount to either express or implied malice in the absence of mitigation, which mitigation may result from a “sudden quarrel or heat of passion”, or a so-called “imperfect” self-defense, (People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. Best (1936) 13 Cal.App.2d 606, 57 P.2d 168.) constitutes the mens rea of voluntary manslaughter when such mitigation is present.

In a killing where there is no suggestion of the presence of malice, a culpable mens rea rendering such killing unlawful is specifically defined in the statute (Pen.Code, § 192) as (1) “the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection” (criminal negligence), or (2) “in the commission of an unlawful act, not amounting to felony” (misdemeanor).

 Where the killing is caused by a deadly weapon, the killing may be involuntary manslaughter (see People v. Southack (1952) 39 Cal.2d 578, 248 P.2d 12 [accidental discharge of a gun], or it may be voluntary manslaughter (see People v. Best, supra ) depending on the defendant's particular state of mind and actions.

 The intentional shooting or stabbing of an individual is a “man-endangering” act whether or not there was the express intent to kill and if unjustified, unexcused or unmitigated, is murder.   When such act is mitigated by “sudden quarrel or heat of passion”, coupled with adequate provocation or by the existence of some other circumstances which eliminate malice, the crime is voluntary manslaughter.  (People v. Best, supra.)   It is not involuntary manslaughter for the reason that an intentional shooting or stabbing with or without an intent to kill as a felony.   It is not a misdemeanor, nor is it criminal negligence.   To characterize an intentional shooting or stabbing as negligence is a contradiction in terms.

We are aware of the fact that in some decisions in California it has been stated that voluntary manslaughter requires a specific intent to kill.   The reason for such statement is elusive.   The statute (Pen.Code, § 192) contains no such language and such a requirement is not necessarily commanded by the word “voluntary.”

In People v. Bridgehouse (1956) 47 Cal.2d 406, 303 P.2d 1018, the Supreme Court reduced a conviction of second degree murder to manslaughter where defendant had shot and killed his wife's paramour.   It is significant to note that in that case the order for reduction did not contain a “voluntary” or “involuntary” characterization.   However, in the body of the opinion the court makes the statement at page 413, 303 P.2d 1018:  “[V]oluntary manslaughter is a wilful act, characterized by the presence of an intent to kill․”   Later in the opinion at page 414, 303 P.2d 1018, the court found that there was no evidence of malice “either express or implied.”  (Emphasis added.)   At no time did Bridgehouse ever express an intent to kill, yet the court stated that “the evidence, as a matter of law, shows that defendant was guilty at most of voluntary manslaughter.”  (Emphasis added.)

In People v. Forbs (1965) 62 Cal.2d 847, 44 Cal.Rptr. 753, 402 P.2d 825, the language of Bridgehouse concerning the element of intent to kill in voluntary manslaughter was cited with approval but was dicta and unnecessary to the result of that case.  Forbs did not involve the intentional use of a weapon, nor did People v. Miller (1931) 114 Cal.App. 293, 299 P. 742, which is cited in Forbs.

In People v. McManis (1972) 26 Cal.App.3d 608, 102 Cal.Rptr. 889, the court repeated the language that an intent to kill was required for voluntary manslaughter but implied such intent from the shooting of the victim with a pistol.  McManis is typical of many cases where the language appears and seems to point to the conclusion that while the courts have used the phrase “intent to kill” in connection with voluntary manslaughter, they meant in fact the intentional commission of a life-endangering act.   We have found no case involving the intentional use of a deadly weapon to inflict injury on another where a court has specifically distinguished voluntary from involuntary manslaughter on the basis of an express intent to kill.  (Cf. People v. Welch (1982) 137 Cal.App.3d 834, 187 Cal.Rptr. 511.)

Quoting again from Perkins, Criminal Law, supra:  “Many statements can be found to the effect that voluntary manslaughter requires an intentional killing;  but the tendency has been to give the phrase a meaning broad enough to cover any killing with a man-endangering-state-of-mind that is neither murder nor innocent homicide.   This latter usage has the advantage of simplicity because unlawful homicide with a man-endangering-state-of-mind is murder in the absence of mitigation, whereas unlawful homicide without such a state of mind is only manslaughter in any event.”  (Id., at p. 52;  fn. omitted.)

 Thus, where a defendant intentionally uses deadly force in a claimed self defense, the jury may find such force to have been justifiable and return a verdict of acquittal.   Where the jury finds that the force used was not justified, it may nevertheless find in an “imperfect” self-defense, mitigation sufficient to reduce what otherwise would be murder to manslaughter because of the absence of malice.   If so, the manslaughter is of the voluntary type whether or not defendant expressly intended to kill the victim.

 In fact, in People v. Hatchett (1944) 63 Cal.App.2d 144, 146 P.2d 469, the court held it to be prejudicial error to give involuntary manslaughter instructions in case of an intentional shooting where the defendant relied on self-defense, stating at page 161, 146 P.2d 469:  “[T]he jury [was] told in so many words that the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection, would amount to manslaughter or, in other words, that the act of shooting, if believed lawful, might constitute the offense of manslaughter if it was done in an unlawful manner or without due caution and circumspection.   Any such theory of guilt would have been entirely unsupported by the evidence or any legitimate inferences to be drawn therefrom.   The instruction clearly tended to divert the minds of the jury from the sole question whether defendant acted reasonably and in good faith in defending herself from a felonious attack and may well have operated to her prejudice.”

Based upon the foregoing, the trial court was correct in not instructing the jury on the elements of involuntary manslaughter.

The judgment is affirmed.

FOOTNOTES

1.   Part of the instructions included the following:  “The killing of another person in self-defense is justifiable and not unlawful, one, when the person who does the killing has reasonable grounds to believe and does believe that there is imminent danger that the other person will kill him or cause him great bodily injury;  [¶] And, two, a reasonable person under the same circumstances will believe that it was necessary to kill the other person to prevent death or great bodily injury to himself.  [¶] In order to justify killing another person in self-defense, actual danger or great bodily injury is not necessary.  [¶] On the other hand, a bare fear of death or of great bodily harm is not sufficient.  [¶] In order to justify a killing, it must be established, one, the circumstances must be sufficient to excite the fears of a reasonable person that there was imminent danger of death or great bodily injury;  and, two, the party killing must have acted under the influence of such fears alone and under the belief that such killing was necessary to save himself from death or great bodily injury.”  (See CALJIC No. 5.12 (1974 rev.).)

2.   Evidence Code section 402 provides:  “(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.  [¶] (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury;  but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.  [¶] (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto;  a separate or formal finding is unnecessary unless required by statute.”

3.   Evidence Code section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

4.   Penal Code section 192, subdivision (b) defines involuntary manslaughter as:  “Involuntary—in the commission of an unlawful act, not amounting to felony;  or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection․”

COMPTON, Associate Justice.

ROTH, P.J., and GATES, J., concur.