People v. McManis

Opinion

By information, appellant Kenneth McManis was charged with the murder of Cecil Sewell. (Pen. Code, § 187.) After his plea of not guilty, a jury found him guilty of voluntary manslaughter, a lesser and necessarily included offense within the crime charged. Appellant’s motions for new trial and for reduction of the verdict were denied; his application for probation was also denied. Appellant now appeals from the judgment.

Viewed most favorably in support of the jury’s verdict, the record discloses appellant was the owner and operator of the Hawaiian Village Inn, a beer bar in Fontana, Shortly after 10 p.m. on the evening of January 2, 1970, one Horton entered the bar, ordered a beer, inquired if appellant was the manager, and told appellant the toilets in the back of the bar were overflowing. Appellant checked the toilets, but found nothing wrong. Appellant returned to the bar, and Horton began playing pool with one of three other men present.

Shortly thereafter, the decedent Sewell entered the bar. Horton testified he and Sewell had driven to the bar together. When appellant saw Sewell, he ordered Sewell to leave the bar, stating he would throw him out as he had done the first time. On an earlier occasion, appellant and Sewell had become involved in an argument over the way in which Sewell had parked his auto at the bar, and appellant had hit Sewell several times on the head with a sawed-off pool stick. On another occasion, appellant had purchased new booths for the bar; the covering of the booths had been slashed, and appellant believed Sewell had slashed them.

Appellant chased Sewell from the bar into the parking lot, swinging the same cue stick. Both Gary Matheson and Sam Grigson, two of the men in

After appellant returned to the bar, Sewell walked to the outside comer of the building and picked up, as Matheson testified, a tire iron. Sewell then went to the back door of the bar, and began shouting at appellant. Howard Voss, the third patron of the bar, testified Sewell shouted: “Now, you son of a bitch, come out, I got something for you now.” Grigson testified Sewell shouted: “All right, I’m ready for you.” Appellant looked out from, the bar, saw Sewell, took a four-inch Smith and Wesson revolver from behind the cash register, and returned to the parking lot.

The three patrons of the bar consistently testified someone yelled at Sewell to watch out, that appellant was carrying a pistol, and that Sewell never tried to strike appellant. In fact, all three men testified Sewell immediately returned to Horton’s pick-up truck. Voss testified Sewell entered the passenger side of the truck and shut the door behind him.

Appellant, carrying the pistol, went to the passenger side of the vehicle. Both Voss and Grigson stated appellant appeared to reach inside the truck, and look on the floor and under the front seat for something; both testified they saw no struggle between appellant and Sewell. Matheson, on the other hand, testified the fatal shot was fired immediately after appellant reached the vehicle. In any case, shortly after appellant reached the vehicle, the pistol discharged. The bullet entered Sewell’s head near the inside corner of his right eye, and exited behind the left ear. Sewell was immediately driven to Kaiser Hospital by Horton; he died there one week later.

In his defense, appellant testified he first chased Sewell from the bar with the cue stick, and Sewell then told him: “You are already dead and you do not know it.” After he heard Sewell shouting from outside the bar, he saw Sewell carrying what he thought was a sawed-off bayonet he had seen in Sewell’s tmck once before. He pulled the door of the pick-up truck open as Sewell was in the process of entering the truck. At that point, he and Sewell began struggling over a tire iron; the tire iron was later found on the floor of the passenger’s side of the truck. Appellant testified he tried to slap Sewell with the pistol, hit his arm, and the gun fired. Appellant stated, however, Sewell had not tried to hit him with the tire iron, and was not so trying at the time he attempted to slap him with the pistol. Appellant testified he did not pull the trigger on the pistol, but the gun fired when it hit Sewell’s arm. John Davidson, a San Bernardino County Sheriff’s criminalist, testified, however, the pistol could not be fired by striking it against something, and could be fired only by trigger-pull.

As we shall discuss, we conclude the evidence was sufficient to sustain the jury’s determination appellant was guilty of voluntary manslaughter. However, appellant is correct in his contention the court erred in its instruction on involuntary manslaughter; nonetheless, as we shall explain, the error was not prejudicial in that it could not have affected the jury’s deliberations. Appellant is also correct in his assertion he was improperly denied discoverable evidence prior to trial; but neither was this error of sufficient magnitude to warrant reversal of the judgment. Finally, we reverse the judgment only insofar as it pertains to sentence, because the court was unconstitutionally restrained from a consideration of probation as a proper disposition in the case.

Appellant’s contention the evidence was insufficient to support the jury’s verdict of voluntary manslaughter is based on the characterization of the record as showing a lack of intent. We disagree.

.Penal Code, section 192 defines voluntary manslaughter as “the unlawful killing of a human being, without malice . . . upon a sudden quarrel or heat of passion.” Voluntary manslaughter “is a wilful act, characterized by the presence of an intent to kill engendered by sufficient provocation and by the absence of premeditation, deliberation and (by presumption of law) malice aforethought.” (People v. Bridgehouse, 47 Cal.2d 406 , 413 [ 303 P.2d 1018 ]; People v. Forbs, 62 Cal.2d 847 , 852 [ 44 Cal.Rptr. 753 , 402 P.2d 825 ].) The intent to kill required for a conviction of voluntary manslaughter is a state of mind, and is most often proved by circumstantial evidence. (People v. Welborn, 242 Cal.App.2d 668 , 673 [ 51 Cal.Rptr. 644 ].) In resolving appellant’s contention, the test on appeal is whether there is substantial evidence to support the jury’s conclusion. (People v. Archerd, 3 Cal.3d 615 , 621 [ 91 Cal.Rptr. 397 , 477 P.2d 421 ]; People v. Redmond, 71 Cal.2d 745 , 755 [ 79 Cal.Rptr. 529 , 457 P.2d 321 ].)

The evidence shows appellant had beaten the decedent with a cue stick previously, and believed that he had damaged the booths in the bar. Criminalist Davidson testified the pistol could not have fired as appellant

The jury was instructed the killing constituted involuntary manslaughter if it occurred without malice aforethought and without an intent to kill, during the commission of a misdemeanor inherently dangerous to human fife. The jury was not instructed however, as to the meaning of “misdemeanor,” other than it is a crime for which the punishment is other than death or imprisonment in the state prison. Appellant contends the court committed prejudicial error in failing to instruct what specific acts under the evidence presented could constitute a misdemeanor.

An instruction defining misdemeanor within the context of a misdemeanor-manslaughter instruction must be given sua sponte. (People v. Failla, 64 Cal.2d 560 , 564 [ 51 Cal.Rptr. 103 , 414 P.2d 39 ]; People v. Lilliock, 265 Cal.App.2d 419 , 427-430 [ 71 Cal.Rptr. 434 ]; see People v. Escarcega, 273 Cal.App.2d 853 , 859-860 [ 78 Cal.Rptr. 785 ].) Failure to do so may allow the trier of fact to engage in unguided speculation as to what conduct is sufficient to constitute a misdemeanor inherently dangerous to human life. Accordingly, the court here erred in failing to instruct which acts could constitute a misdemeanor within the meaning of the involuntary manslaughter instruction.

The question whether the error was prejudicial, however, is more difficult. In People v. Huntington, 8 Cal.App. 612 , 616 [ 97 P. 760 ], the court stated: “If the killing was manslaughter, it is not important that it be classified. The statute [Pen. Code, § 193] does not distinguish [voluntary from involuntary] manslaughter in prescribing the punishment, but, on the contrary, makes the punishment not exceeding [15] years’ imprisonment for manslaughter; and the question as to whether any case falls under the one head or the other does not appear to be material.” Similarly, in People v. Jackson, 202 Cal.App.2d 179 , 182 [ 20 Cal.Rptr. 592 ]; People v. Freudenberg, 121 Cal.App.2d 564 , 594 [ 263 P.2d 875 ]; and People v. Bones, 35

In People v. Failla, supra, 64 Cal.2d 560 , however, the court reviewed a first degree burglary conviction and concluded it was reasonably probable a result more favorable to the defendant would have been reached, absent the error of the trial court in failing to define the meaning of “or any felony” within the context of a burglary instruction. In Failla, the failure to define felony may well have allowed the verdict to be based solely upon speculation. Similarly, in People v. Chavez, 37 Cal.2d 656 , 668-669 [ 234 P.2d 632 ], the court weighed the failure of the trial court to define rape and murder as felonies in the context, of a burglary instruction, but concluded no prejudice occurred. The significance of Failla and Chavez to the case at bench is this: prejudice must be demonstrated before the failure to define misdemeanor in the context of an involuntary manslaughter instruction will constitute reversible error. We find no prejudicial error here.

By its verdict of voluntary manslaughter, the jury could only have concluded appellant intended to kill Sewell. The finding of voluntary manslaughter can be interpreted no other way. Since a verdict of involuntary manslaughter based on proper instructions could have been based only on a finding that appellant did not intend to kill Sewell (Pen. Code, § 192; see People v. Carmen, 36 Cal.2d 768 , 774 [ 228 P.2d 281 ]; People v. McGee, 31 Cal.2d 229 , 238 [ 187 P.2d 706 ]), it is clear a proper involuntary manslaughter instruction could not have affected the jury’s deliberations. Once the jury determined the crucial question of intent, an instruction defining misdemeanor would have been immaterial. And conversely, an instruction on the definition of misdemeanor could not have affected the decision on the question of intent. In short, the jury’s verdict demonstrates it could not have reached its conclusion by speculating as to the meaning of misdemeanor. Accordingly, whether judged by the standard of People v. Watson, 46 Cal.2d 818 , 836 [ 299 P.2d 243 ], or that of Chapman v. California, 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ], we conclude the court’s error in failing to define misdemeanor in. the context of the involuntary manslaughter instructions was not prejudicial, and does not require reversal.

Appellant contends the failure of the People to disclose tape-recorded statements of his and of the witnesses deprived him of the guarantee of due process of law.

The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prose

Late in the trial, on cross-examination of appellant, the prosecution disclosed the existence of a taped statement which appellant had made immediately after the shooting of Sewell. The court was informed the defense had no knowledge of the taped statement. An in camera discussion also revealed taped statements had been taken immediately after the shooting from the three witnesses at the bar—Matheson, Voss and Grigson— and from Horton. All of these witnesses had testified for the prosecution prior to the time the defense learned of the tape-recorded statements; the defense thus did not have whatever benefit the recordings may have provided for purposes of cross-examination. The prosecution revealed it became aware of the recorded statements a month or so before trial, and they had been in police files prior to that time.

The record shows the criminal discovery process in San Bernardino County is an informal one in which demand is made by letter upon the office of the district attorney for discovery, and the discoverable material is then released to the defense. The discovery demand letter was introduced into evidence, and demonstrates appellant requested “notification of the existence of any taped statements by any prospective witness [or the] defendant. ...” Appellant also requested notification if any of the material sought later came into the possession of the prosecution. It is clear that under the informal discovery procedure here employed appellant was entitled to the recordings of his statements to the police. (See Joe Z. v. Superior Court, 3 Cal.3d 797 , 802-805 [ 91 Cal.Rptr. 594 , 478 P.2d 26 ]; Powell v. Superior Court, 48 Cal.2d 704 [ 312 P.2d 698 ]; Vance v. Superior Court, 51 Cal.2d 92 , 93 [ 330 P.2d 773 ]; Cash v. Superior Court, 53 Cal.2d 72 [ 346 P.2d 407 ]; see also Cicenia v. La Gay, 357 U.S. 504 , 511 [ 2 L.Ed.2d 1523 , 1529, 78 S.Ct. 1297 ].) Appellant was also entitled to the recordings, made immediately after the shooting, of the statements of the witnesses. (Funk v. Superior Court, 52 Cal.2d 423 [ 340 P.2d 593 ].) The state “. . . has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits.” (People v. Riser, 47 Cal.2d 566 , 586 [ 305 P.2d 1 ].) Appellant thus requested and should have received the tape-recorded statements at least when the prosecution finally became aware of them before trial.

Neither People v. Briggs, 58 Cal.2d 385 , 412 [ 24 Cal.Rptr. 417 , 374

Gardner, P. J., and Kerrigan, J., concurred.