People v. Williams

Opinion

Defendant appeals from judgment entered on a jury verdict convicting her of involuntary manslaughter. (Pen. Code, § 192, subd. 2.) We affirm the judgment.

After living together for two years, Elijah Turner decided one evening to leave defendant. When Elijah’s brother Aubrey, defendant’s sister Viola and Viola’s boyfriend David arrived to help Elijah move, defendant told them to leave so that she could speak to Elijah privately.

According to Aubrey, defendant added that Elijah was “not going anywhere.” A police officer testified Viola told him defendant called Elijah an obscene name and said he was “not going anywhere.” At trial, however, Viola denied having made that statement.

Moments after stepping outside, Aubrey, Viola and David heard a “bumping” sound. Aubrey testified he reentered the apartment in time to see defendant stab Elijah in the chest as the victim gestured to her to stop. Viola and David contradicted Aubrey’s claim that he reentered the apartment, but agreed with him that Elijah stumbled outdoors saying that defendant had stabbed him. The wound was fatal.

In People v. Failla, supra, 64 Cal.2d 560 , the jury was instructed that entering an apartment with intent to commit theft “or any felony” is burglary, and that such a specific intent is a necessary element of burglary. No other instructions on burglary were requested or given. This court held: “[W]here the evidence permits an inference that the defendant at the time of entry intended to commit one or more felonies and also an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, the court must define ‘felony’ and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.” (Id., at p. 564.)

In People v. McManis, supra, 26 Cal.App.3d 608 , the Court of Appeal relied on Failla in holding that “An instruction defining misdemeanor within the context of a misdemeanor-manslaughter instruction must be given sua sponteP (Id., at p. 614.)

Defendant relied on McManis in moving for a new trial. The trial court admitted its error, but denied the motion on the ground it had not resulted in a miscarriage of justice—the position respondent adopts here.

“It is well established that ‘ “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” ’ (People v. Bevins (1960) supra, 54 Cal.2d 71 , 78 [ 4 Cal.Rptr. 504 , 351 P.2d 776 ], quoting from People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ]; see also People v. Newman (1971) 5 Cal.3d 48 , 54 [ 95 Cal.Rptr. 12 , 484 P.2d 1356 ],)” (People v. Gordon (1973) 10 Cal.3d 460 , 470 [ 110 Cal.Rptr. 906 , 516 P.2d 298 ].)

This error was held harmless in the circumstances of McManis, the Court of Appeal there stating: “By its verdict of voluntary manslaughter,

Similarly, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error here. Although defendant does not suggest which misdemeanor or misdemeanors should have been defined, the evidence suggests battery. “A battery is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) Defendant admitted willfully using force and violence upon Elijah. The only question was whether she did so unlawfully or in lawful self-defense. Having been fully and properly instructed on self-defense, as defendant expressly conceded at oral argument, the jury resolved the issue against defendant. Therefore, the error was harmless.

Defendant next contends the trial court erred by refusing to permit her to cross-examine a witness concerning the remainder of an extrajudicial conversation partially disclosed by the People.

As has been stated above, Aubrey Turner testified he reentered the apartment in time to witness the stabbing. Defendant testified to the contrary, denying she made a prior inconsistent statement to Detective Pierce. On rebuttal, Detective Pierce testified that when he asked where she stabbed the victim, defendant replied she did not know but that the detective should ask Aubrey because “He saw the stabbing when he entered the door.” On cross-examination, defendant asked Detective Pierce, “What was the whole conversation you had with Mrs. Williams?” The People’s objection that the question called for hearsay was sustained.

Section 356 of the Evidence Code provides in pertinent part: “Where part of an act, declaration, conversation or writing i? given in evidence by one party, the whole on the same subject may be inquired into by an adverse party ....”

The People have shifted ground. Relying on People v. Perry (1972) 7 Cal.3d 756 [ 103 Cal.Rptr. 161 , 499 P.2d 129 ], they now argue that defense counsel’s question was objectionable, not because it called for hearsay, but because the remainder of the partially disclosed conversation may have been irrelevant to the portion introduced by the People.

Section 356 is indisputably “ ‘subject to the qualification that the court may exclude those portions of the conversation not relevant to the items thereof which have been introduced.’ ” (People v. Perry, supra, 7 Cal.3d at p. 787, quoting Witt v. Jackson (1961) 57 Cal.2d 57 , 67 [ 17 Cal.Rptr. 369 , 366 P.2d 641 ]; Legis. Committee com. to Evid. Code, § 356.) “The rule is not applied mechanically to permit the whole of a transaction to come in without regard to its competency or relevancy ....” (Witkin, Cal. Evidence (2d ed. 1966) § 320, p. 283.)

In People v. Perry, supra, like this case, the defendant sought to introduce the remainder of a conversation partially disclosed by the People. However, unlike this case, the trial court in Perry, having found the first few lines of the transcribed statement irrelevant to the point at issue, merely directed the witness to eliminate extraneous matter from his reading of the transcript. Rejecting the defendant’s contention that the entire statement was admissible under section 356 without regard to its relevancy, this court upheld the trial court’s refusal to admit portions of the statement unrelated to the excerpt introduced by the People, noting that “[t]he record is devoid of any indication that counsel ever tried to introduce [the pertinent] portions of the statement.” (7 Cal.3d at p. 787.)

Respondent contends that defendant should have asked a “narrower question encompassing only relevant matters.” It is questionable whether