People v. Polley

Opinion

Stephen Polley appeals his conviction of first degree murder, contending the superior court erred in refusing to instruct the jury on involuntary manslaughter, in giving an improper definition of malice and in allowing a photograph of the victim’s heart into evidence.

In October 1981 Polley and his wife Maria separated. In December 1981 Maria moved into a new residence; in an attempt to hide from him, she did not give Polley the new address. Less than a month later, however, Polley found Maria’s new home. On the morning of January 4, 1982, he phoned a friend and told her he had found Maria and he was going to kill her. On that same morning, he visited Maria’s apartment and broke a window. He then went to the naval base where he was stationed, called Maria and told her he knew where she lived, left his car and returned to Maria’s apartment in a friend’s car. After receiving Policy's call, Maria left work and went to her apartment. When Polley arrived she refused to let him in. He entered through the window he had broken earlier. After Polley and Maria argued, he shot her twice, once in the back of the head and once in the chest. The second shot passed through Maria’s heart.

Polley was charged with murder (Pen. Code, § 187) and entry of an inhabited building with the intent to commit murder (Pen. Code, § 459). Both counts were accompanied by an allegation of use of a firearm (Pen. Code, § 12022.5). The jury found Polley murdered and burgled, using a firearm in committing both offenses. Policy's motion for a new trial was denied and he was sentenced to prison 27 years to life for murdering, while sentence for the burglary was imposed and stayed.

In People v. Sedeno (1974) 10 Cal.3d 703 , 721 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ], (overruled on other grounds, People v. Flannel (1979) 25 Cal.3d 668 , 684, fn. 12 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ]) the California Supreme Court said: “[I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.” See also People v. Frierson, (1979) 25 Cal.3d 142 , 157 [ 158 Cal.Rptr. 281 , 599 P.2d 587 ]; People v. Kozel, (1982) 133 Cal.App.3d 507 , 525 [ 184 Cal.Rptr. 208 ]; People v. Eaker (1980) 100 Cal.App.3d 1007 , 1013 [ 161 Cal.Rptr. 417 ], cert. den. 449 U.S. 859 [ 66 L.Ed.2d 75 , 101 S.Ct.161]; People v. Tanner (1975) 95 Cal.App.3d 948 , 957 [ 157 Cal.Rptr. 465 ]; People v. Roberts (1975) 51 Cal.App.3d 125 , 133-134 [ 123 Cal.Rptr. 893 ].) The defendant in Sedeño made the same argument Polley does here, i.e., his first degree murder conviction was improper because the jury was not instructed on involuntary manslaughter. The Supreme Court explained such an argument is normally without merit. “In the instant case, the jury necessarily rejected defendant’s evidence that his diminished capacity negated intent to kill when it found the shooting to be first degree rather than second degree murder. Thus, the failure to give an instruction on involuntary manslaughter could not have been prejudicial

The judgment is affirmed.

Cologne, J., and Butler, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied December 28, 1983.