Criminal Appeal

Words May Constitute Sufficient Provocation To Reduce Murder To Manslaughter

In a murder prosecution, the trial court instructed the jury pursuant to CALCRIM no. 917 that mere words cannot establish a defense to battery. In addition, the court allowed the prosecutor to argue to the jury that words cannot legally constitute provocation to reduce a homicide to manslaughter.

While it is a correct statement of the law that words cannot establish a defense to battery, words of abuse, insult or reproach may incite the heat of passion specified in the Penal Code section 192 definition of manslaughter, and therefore may constitute sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter.

In light of these principles, the Sixth District Court of Appeal reversed the defendant's second degree murder conviction, concluding that the combination of the instruction given and the prosecutor's argument to the jury improperly "removed consideration of appellant's confrontation with his wife, and her insulting response, from the jury's evaluation of provocation and its impact on appellant's state of mind." Because consideration of these highly relevant factors may have prevented the jury from convicting the defendant only of voluntary manslaughter, the Court of Appeal deemed the errors prejudicial.

The unanimous opinion was authored by Justice Franklin D. Elia.

People v. Le, no. H030808 (Cal.Ct.App. (6th Dist.) filed 12/27/07)

Court of Appeal Deems Failure To Introduce Expert Testimony On Intimate Partner Battering IAC And Grants Habeas Relief

Fourteen years ago, a panel of the Second District Court of Appeal rejected the defendant's contention that the failure of her trial counsel to introduce expert testimony on intimate partner battering and its effects constituted ineffective assistance of counsel. Therefore, it affirmed her conviction for second degree murder of her abusive husband.

Three years later, the California Supreme Court held imperfect or unreasonable self-defense is not a defense but a lesser offense included in the crime of murder. As a result, trial courts must now instruct the jury the People have the burden of proving beyond a reasonable doubt the defendant was not acting in imperfect self-defense whenever the record contains substantial evidence from which the jury could reasonably conclude the defendant was guilty only of voluntary manslaughter.

The following year, the California Supreme Court held expert testimony concerning intimate partner battering and its effects, expressly made admissible in criminal actions by Evidence Code section 1107 as of January 1, 1992, was relevant in a murder case to the determination of both the subjective existence and objective reasonableness of a defendant’s belief in the need to defend herself or himself.

In light of these developments, defendant filed a petition for a writ of habeas corpus. The Second District Court of Appeal reconsidered its earlier ruling in her case and concluded that the failure of her trial counsel to introduce expert testimony regarding intimate partner battering and its effects (whether or not a reasonable tactical decision) substantially prejudiced her defense. The Court of Appeal agreed that there was a reasonable probability, sufficient to undermine confidence in the verdict, that the result of her trial would have been different (that is, she may have been convicted of voluntary manslaughter rather than second degree murder) had such evidence been presented. Accordingly, the Court of Appeal vacated the 1991 judgment of conviction and remanded for a new trial.

The unanimous opinion was authored by Presiding Justice Dennis M. Perluss.

In re Walker, no. B190637 (Cal.Ct.App. (2nd Dist., Div. 7) filed 2/5/07)

LWOP Not Mandatory for Dyleski

Regarding the minor convicted of first degree murder with special circumstances (resid. burg) of Pamela Vitale (wife of defense attorney Daniel Horowitz), the SF Chronicle is reporting that "The verdict will send Dyleski to prison for the rest of his life without the possibility of parole." Not necessarily.

LWOP is discretionary for 16 and 17 years old convicted of 1st degree murder with special circumstances. Cal. Penal Code sec. 190.5(b) (emphasis added):

(b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25  years to life.

 

No error in failing to give CALJIC No. 8.72 (reasonable doubt between murder and manslaughter) sua sponte when court gave CALJIC No. 17.10 (conviction of lesser offense instead of greater). People v. Barajas, no. F041273 (Cal.Ct.App. 5th Dist., July 15, 2004).

Murder Conviction Affirmed for Death of Baby Injured In Utero by Six Punches to Mother's Stomach. People v. Taylor, no. C042165 (Cal.Ct.App. (3d Dist., June 17, 2004)

The opinion explores several issues relating to the application of homicide law to a death of a baby resulting from an injury while still fetus.

No Instructional Error In Nail Gun Murder Trial. People v. Pescador, no. C042759 (Cal.Ct.App. 3d dist. June 8, 2004).
"Suspecting his wife, Norma Pescador, of infidelity, defendant Manolito Pescador fired 10 nails into her head with a nail gun, killing her" and there were no errors in his jury instructions.

(1) No error in instructing pursuant to CALJIC 8.71 and 8.72, which create presumptions for convictions for lesser homicide offenses when there jurors have a reasonable doubt as to the degree of the offense. Jury would not read instructions as requiring that they unanimously find that they cannot agree on the degree: (2) No error in instructing pursuant to CALJIC 2.50.02, which permits jury to rely on prior acts of domestic violence to find that he had a propensity to commit the current offense.

A Specific Intent to Kill is Required for a Conviction of First Degree Drive-By Murder. People v. Chavez, no. F034110 (Cal.Ct.App. (5th Dist.) May 3, 2004).

The "provocative act" theory of murder applies where, during a high-speed chase following a robbery, one of the police cars pursuing the defendants struck and killed an innocent motorist. People v. Lima, no. D041856 (Cal.Ct.App. (4th Dist., Div. 1), Filed 4/14/04; Publ. 5/4/04) (partial publication).

Implied Malice Murder of Fetus Applies Where Killer is Unaware of Existence of Fetus. Yesterday, in People v. Taylor, no. S112443, the California Supreme Court held that a conviction for implied malice murder of a fetus does not require proof that the killer was aware that the woman he killed was pregnant. This case has received a lot of attention, but it's probably not merited. It does not affect abortion rights. The fetal murder statute does not apply to abortions and this decision merely interpreted that statute as it applied to a non-abortion termination of a fetus. And the case probably has no implications for Scott Peterson, who apparently knew his wife was pregnant.

Justice Janice Rogers Brown wrote the majority opinion.
Justice Joyce L. Kennard was the lone dissenter.

Cal.Ct.App.: Mandatory Presumption Requires Murder Reversal

In a 2-1 decision, the California Court of Appeal (2d Dist., Div. 7) reversed a second degree murder conviction for instructional error. The instruction informing the jury that "[a] violation of the basic speed law is the commission of an act inherently dangerous to human life and safety," constituted an impermissible mandatory presumption: "the trial court told the jury, in essence, the second element of implied malice requires proof of an act whose natural consequences are dangerous to human life and proof of a violation of the basic speed law is proof of such an act." Applying the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, the Court found the error prejudicial. Justice Dennis M. Perluss dissented, agreeing there was error, but finding it harmless.
The Court of Appeal rejected the appellant's evidentiary claim, finding that the trial court did not abuse its Evid. Code sec. 352 discretion in granting the prosecutor's motion in limine to preclude the defense from questioning its own accident reconstruction expert about whether in forming his opinion that the defendant was going between 10-20 mph that he considered the report the defense's first, but now deceased, expert.

Justice Earl Johnson, Jr. wrote the majority opinion in People v. Vanegas, no. B165475 (Cal.Ct.App. - 2d Dist., Div. 7).