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The PEOPLE, Plaintiff and Respondent, v. William Edward MARMADUKE, Defendant and Appellant.
Defendant William Edward Marmaduke appeals the judgment entered on verdicts finding him guilty of attempted murder (Pen.Code, §§ 187, 664) 1 and assault with a firearm (§ 245(a)(2)). The jury also found to be true allegations Marmaduke used a firearm within the meaning of section 12022.5 as to each offense.
Marmaduke argues the court erred in failing to instruct the jury on certain lesser included and lesser related offenses. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND 2
Bill Marmaduke and Terrie Standerfer began a seven-month romantic relationship while the two lived in Colorado in 1988. During a visit to San Diego County in August, Marmaduke introduced Standerfer to Paul Van Goethem, who owned a boat moored at the Oceanside harbor. During another trip to San Diego in October, Standerfer went boating with Van Goethem while Marmaduke visited other friends. On this occasion, Standerfer mentioned that she and Marmaduke were not getting along well. Van Goethem told her that if she decided to break off the relationship, he would send her a plane ticket so she could return to San Diego.
The relationship remained unsettled when Standerfer and Marmaduke returned to Colorado. In late January, Standerfer called Van Goethem to request the plane ticket. She explained she would help him with some repairs on the boat to work off the price of the ticket. After thinking about it for “a couple of days”, Van Goethem sent the ticket to Standerfer. On the day she should have received it, he called her. She explained she wouldn't be needing the ticket because she and Marmaduke were going to drive to California.
Standerfer phoned Van Goethem when she arrived in San Diego and suggested they meet at his boat so she could return the ticket he had sent her. Shortly before meeting Van Goethem, Standerfer and Marmaduke had an argument which culminated in Marmaduke hitting Standerfer across the face. Van Goethem testified that when he arrived, “there was blood on her hands, on her shirt, her eyes were black and blue, and it looked like her nose was pushed over to the left side of her face.” Standerfer claimed her nose was broken.3
Standerfer told Van Goethem she wanted to come live with him. Visibly upset, Marmaduke complained about being “used.” After unloading Standerfer's personal belongings onto the sidewalk, he said, “I gotta get out of here” and left.
Marmaduke returned to the boat on February 8 to see Standerfer and Van Goethem. He was distraught over the break-up and talked at length with Van Goethem about Standerfer. Van Goethem explained that he and Standerfer had begun a romantic relationship since her arrival. Standerfer was present for the first few minutes of the conversation but left because “she couldn't deal ․ with being responsible for [Marmaduke's] mental well-being and life.”
Two days later, Van Goethem's boat had been pulled out of the water for repairs. At about 7:00 p.m., Van Goethem and Standerfer were talking with two friends of Van Goethem's on the boat. Marmaduke approached intending to talk to them. He saw Van Goethem hold up a beer and wave, but he left before reaching the boat when he heard one of the men say, “There's Bill, there's Bill” and start laughing.
Despondent because he thought he was being laughed at, Marmaduke bought a pint of schnapps and drank it on an empty stomach. He returned to the harbor an hour later and parked some distance from Van Goethem's boat. Placing a .45 caliber automatic pistol in the pocket of his jacket, Marmaduke approached Standerfer who was working on the outside of the boat. She testified he appeared “upset” and “distant,” “like he had been crying for a week.” In response to her greeting he said, “It isn't over yet,” and “You won't live through this one.” He then pulled the pistol from his jacket pocket. Standerfer turned and ran yelling, “It's Bill, he's got a gun.”
Van Goethem was working inside the boat when he heard Standerfer yell. As he walked to the side of the boat he saw Marmaduke and said, “Bill, come on, let's talk about it.” Marmaduke replied, “It's not over yet. You'll never live through this.” Then he raised the pistol and fired at Van Goethem. When he saw the gun, Van Goethem stepped back and fell through an opening in the deck. As a result, the shot missed.4
Marmaduke turned and fled. On the way to his van, Marmaduke threw the pistol into the Oceanside harbor. He then drove to Flagstaff, Arizona.
I. Instructions on the Lesser Included Offense of Attempted Voluntary Manslaughter
Marmaduke contends the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted voluntary manslaughter. Recognizing that such an instruction was required only if there was “substantial evidence to support a jury's determination that [he] was in fact only guilty of the lesser offense” (People v. Ramos (1982) 30 Cal.3d 553, 582, 180 Cal.Rptr. 266, 639 P.2d 908; accord People v. Wickersham (1982) 32 Cal.3d 307, 325, 185 Cal.Rptr. 436, 650 P.2d 311), Marmaduke argues the evidence would have supported an attempted manslaughter conviction on either one of two theories.
He first suggests the jury could have found him guilty of attempted voluntary manslaughter on a heat-of-passion theory. To support such a theory, the jury would have had to conclude that Marmaduke intended to kill Van Goethem but was provoked under circumstances and to such an extent “ ‘as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’ ” (People v. Wickersham, supra, 32 Cal.3d at p. 326, 185 Cal.Rptr. 436, 650 P.2d 311 quoting People v. Valentine (1946) 28 Cal.2d 121, 139, 169 P.2d 1.) Such provocation must come from the victim. (People v. Spurlin (1984) 156 Cal.App.3d 119, 125–126, 202 Cal.Rptr. 663.)
The theory is unavailable here because there was no evidence of provocation by Van Goethem. We have previously explained that a victim's dating of the defendant's former girlfriend does not constitute adequate provocation for the purposes of a voluntary manslaughter instruction. (People v. Hyde (1985) 166 Cal.App.3d 463, 473, 212 Cal.Rptr. 440.) Here, all the evidence indicates Van Goethem continued to treat Marmaduke on a friendly basis even after Standerfer broke up with Marmaduke and began living with Van Goethem. While it is true Marmaduke was emotionally upset by the break-up, intense emotion not provoked by the victim's conduct is not a basis for a voluntary manslaughter instruction. (See In re Thomas C. (1986) 183 Cal.App.3d 786, 798, 228 Cal.Rptr. 430.)
Marmaduke also claims an attempted voluntary manslaughter instruction was warranted based on the fact that his intoxicated condition negated the malice necessary to constitute murder. The sole support he provides for his contention is a case ordered depublished by the California Supreme Court. (See People v. Johnson (1989) formerly at 210 Cal.App.3d 870, 258 Cal.Rptr. 686, ordered depublished Aug. 17, 1989.)
The fact that Marmaduke did not respond on this issue in his reply brief strongly suggests he has abandoned the argument. In any event, legislative changes have eliminated the diminished capacity defense which was previously the basis for concluding that a voluntarily intoxicated defendant intended to kill but did not harbor malice. (See People v. Conley (1966) 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911.) It is true that evidence of a defendant's mental disease, defect or disorder is still admissible to show he did not in fact harbor the specific mental state necessary for conviction of the crime.5 (Pen.Code, § 28, subd. (a).) Here, the jury was properly instructed that express malice—defined as an intent to kill—was a necessary element of attempted murder and that evidence of Marmaduke's intoxication should be considered in determining whether he intended to kill Van Goethem. Because California law no longer provides a basis for concluding that a defendant may intend to kill and yet not harbor malice as a result of a mental disorder (see generally People v. Stress (1988) 205 Cal.App.3d 1259, 1267–1268, 252 Cal.Rptr. 913), the court did not err in failing to instruct on the crime of attempted voluntary manslaughter.6
II. Instructions on Lesser Related Offenses
Marmaduke also contends the trial court erred in refusing to instruct the jury on the lesser related offenses of carrying a loaded firearm (Pen.Code, § 12031) and carrying a concealed weapon (Pen.Code, § 12025). Under the California Supreme Court's decision in People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, requested instructions on lesser related offenses are required where the jury could reasonably conclude the defendant was only guilty of an offense less than the charged crime. (Id. at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.) Assuming arguendo the Geiger standard required the giving of the instructions,7 we nonetheless conclude any error in this regard was not prejudicial.
As previously noted, in addition to finding him guilty of attempted murder, the jury also convicted Marmaduke of the charged lesser related offense of assault with a firearm. Guilty verdicts on two lesser included offenses (simple assault (Pen.Code, § 240) and exhibiting a firearm (Pen.Code, § 417, subd. (a)(2)) were also returned but both charges were dismissed by the court after the verdict.
In Keeble v. United States (1973) 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844, the United States Supreme Court explained the theory underlying the requirement that the trial court instruct on lesser included offenses: “[I]t is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. (Id. at p. 212, 93 S.Ct. at p. 1997, emphasis in original.)
The California Supreme Court relied heavily on the Keeble rationale in holding that a court must also give requested instructions on lesser related offenses: “Denial of instructions on related offenses may affect the reliability of [the] fact finding process. By affording no option other than acquittal or conviction of a greater offense than that which the jury believes to have been committed, denial of instructions on related offenses may in some cases create a ‘substantial risk that the jury's practice will diverge from theory.’ ” (35 Cal.3d at p. 526, 199 Cal.Rptr. 45, 674 P.2d 1303, quoting Keeble v. United States, supra, 412 U.S. at p. 212, 93 S.Ct. at p. 1998.) The court went on to explain that “[t]he right to instructions on related offenses exists only to enable the jury to determine fairly the issues presented by the evidence and in so doing to avoid any incentive to convict the defendant of a greater offense than that which he committed.” (35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)
In arguing that the trial court here erred in failing to instruct on the two lesser related offenses, Marmaduke is saying the jurors may have doubted he was guilty of attempted murder but resolved those doubts in favor of conviction because it was clear he was guilty of some offense and they thought it preferable to punish him more severely rather than not at all. Had the jury simply returned a single verdict finding Marmaduke guilty of attempted murder, his argument would have at least theoretical plausibility.8 Here, however, the jury also returned verdicts finding him guilty of a charged lesser related offense (assault with a firearm) and two lesser included offenses. It is inconceivable that this jury believed Marmaduke only guilty of carrying a concealed weapon or loaded firearm yet convicted him of four separate crimes ranging from simple assault to attempted murder. (Cf. People v. Turner (1990) 50 Cal.3d 668, 693, 268 Cal.Rptr. 706, 789 P.2d 887.) Any instructional error which occurred, therefore, could not possibly have prejudiced Marmaduke. (See Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; Peoe v. Lee (1987) 43 Cal.3d 666, 674–676, 238 Cal.Rptr. 406, 738 P.2d 752.)
1. All statutory references are to the Penal Code unless otherwise specified.
2. Because Marmaduke's contentions relate to the sufficiency of the evidence to warrant certain instructions, we state the facts in the light most favorable to his arguments.
3. Describing the same incident, Marmaduke said, “She ․ slapped at me and I blocked it and slapped her back one time.” Standerfer admitted it was the only incident of physical violence between the two.
4. We think it necessary to point out that although we have stated the facts in a light most favorable to Marmaduke's principal contention on this appeal, that is far different than stating them in a light most favorable to Marmaduke's defense at trial. Marmaduke testified that he removed the magazine from the pistol before he put it in his pocket. Thinking the gun was empty, he took it to the boat intending to feign an attempted suicide in order to engender Standerfer's sympathy. The pistol was such that a bullet could remain in the chamber even with the magazine removed. As he was raising the pistol to his head, it accidently discharged in Van Goethem's direction. Marmaduke asserted that given the close range and his conceded familiarity with firearms, it was inconceivable he would have missed Van Goethem had he intended to shoot him.Marmaduke's major appellate argument is that the trial court should have instructed the jury on the lesser included offense of voluntary manslaughter. Obviously had the jury believed his testimony, he would have been acquitted of all charges or at a minimum convicted of a lesser offense. Necessarily then, Marmaduke cannot rely on his own testimony to support his argument that the court should have given a voluntary manslaughter instruction.
5. We assume intoxication would qualify as a “mental disorder.”
6. The question of the relationship between voluntary intoxication and the formation of malice is currently before the Supreme Court in People v. Saille, S016721 and other cases.
7. If the jury believed Marmaduke's testimony regarding the feigned suicide, it would appear he would nonetheless be guilty of carrying a loaded weapon while in a public place. (Pen.Code, § 12031, subd. (a).)
8. As a practical matter we have some difficulty believing a jury would convict a defendant of a crime as severe as attempted murder, punishable by five, seven or nine years in state prison, when he was only guilty of a misdemeanor punishable at most by one year in county jail.
WIENER, Associate Justice.
KREMER, P.J., and WORK, J., concur.
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Docket No: No. D011105.
Decided: May 03, 1991
Court: Court of Appeal, Fourth District, Division 1, California.
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