People v. Alfreds

• Decision Date: 08 June 1967
• Docket Number: Cr. 5815
• Citation: 251 Cal.App.2d 666,59 Cal.Rptr. 647
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Geraldine ALFREDS, Defendant and Appellant.

Page 647

59 Cal.Rptr. 647

251 Cal.App.2d 666

PEOPLE of the State of California, Plaintiff and Respondent, v. Geraldine ALFREDS, Defendant and Appellant.

Cr. 5815.

Court of Appeal, First District, Division 2, California.

June 8, 1967.

Rehearing Denied July 7, 1967.

Hearing Denied Sept. 6, 1967.

Bruce B. Bruchler, Lakeport, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Horace Wheatley, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

In a previous opinion, this court reversed defendant's conviction of voluntary manslaughter in the killing of her husband on the ground that an instruction on involuntary manslaughter should have been given, sua sponte. The Attorney General in his petition for hearing has cited People v. Phillips, 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353, and contends that defense counsel invited error by affirmatively requesting the trial court, for tactical reasons, to refuse the district attorney's proffered instruction on involuntary manslaughter. This argument was not made nor was the Phillips case cited on the appeal, the Attorney General having relied on defendant's mere failure to request the involuntary manslaughter instruction. Thus, the Supreme Court has now returned the case to us for a reconsideration in view of the Attorney General's additional contention. The appeal was taken from the judgment of conviction and also from the order denying a new trial. ¹

The facts are as follows: defendant, Geraldine Alfreds, and Phillip Alfreds (hereafter Phil) were married in 1958 and had four children. The marriage was marked by turbulence, violence and numerous separations. The parties were separated and defendant's divorce action was pending at the time of the shooting here involved. Several weeks before, Phil had threatened to kill defendant rather than lose her.

About 10:00 p.m. on April 13, 1965, defendant and her friend, Ted Pierce (hereafter Ted), were watching television in the living room of the Pierce residence located across the street from defendant's home in Middletown, Lake County. Phil knocked on the door and when Ted asked who was there, replied: 'Phil.' Defendant immediately ran through the bedroom to the bathroom of the Pierce residence. Ted opened the door and asked Phil what he wanted. Phil replied: 'I want my old lady,' and entered the house, grabbed Ted by the shirt, saying: 'I'm going to kill you, Ted.' Phil pushed Ted down onto the floor, then jumped over him and went into the bedroom. Phil and defendant frantically screamed at each other and scuffled over Ted's unloaded pistol which defendant had picked up from the dresser. Meanwhile, Ted got up from the floor, grabbed a shotgun, ran out into the front yard and faced the front door, holding the gun at port arms position. Both Ted and defendant testified to great fear.

Ted testified that defendant ran out of the house, followed by Phil, and that defendant came along the left side of Ted, grabbed the shotgun out of his hands, saying: 'Shoot. Shoot the son-of-a-bitch or I will.' Ted ran a few steps to the car which was parked in front of his house and seconds later heard a blast from the shotgun. When he returned, he saw Phil lying on the ground and defendant crying and saying: 'On, my God, I shot him.' Despite efforts to save him, Phil bled to death from the shotgun wounds.

Immediately after the shooting, defendant told a deputy sheriff that she grabbed the shotgun from Ted and pulled the trigger as Phil started toward her. While confined in the Lake County jail, defendant told another inmate, Lucille McCloud, that she shot Phil and would do it over again.

In another statement and In her testimony at the trial, defendant indicated that her earlier statement that she grabbed the shotgun from Ted was wrong and made only to exculpate Ted. Her testimony was that Ted flipped her the gun and it went off either when it hit her hand or as she caught it when Phil was bearing down very closely upon her. When asked if she had pulled the trigger, she indicated she might have but could not remember. She admitted several times that she saw no gun in Phil's hands as he approached her.

Defendant first contends that the court erred in failing to give an instruction on involuntary manslaughter on its own motion (CALJIC 308B). The general principles here applicable are laid down in People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281. A defendant in a criminal case is entitled to instructions on his theory of the case as disclosed by the evidence, no matter how weak. It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. It is the duty of the court to instruct the jury in regard to any included offense that the evidence tends to prove. Where there is any evidence from which a reasonable inference may be drawn that the crime of which defendant was convicted was of a lesser degree, it is prejudicial error to withdraw from the jury the consideration of such evidence (People v. Miller, 57 Cal.2d 821, 829--830, 22 Cal.Rptr. 465, 372 P.2d 297).

'Manslaughter is the unlawful killing of a human being without malice.' One kind of manslaughter, the definition of which is pertinent in this case, is involuntary manslaughter, being that which is done in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection (Pen.Code, § 192, subd. 2).

The evidence here would support a finding that in grabbing or catching the shotgun and pointing it in the direction of the deceased, defendant was either performing an unlawful act not amounting to a felony or a lawful act which might produce death in an unlawful manner, or without due caution or circumspection. Furthermore, the testimony of defendant's hysterical condition, that the gun went off when it hit her hand, and that she was unable to say whether she had pulled the trigger, would support a finding that the gun fired accidentally. Such findings, if made by the jury, would clearly justify a verdict of involuntary manslaughter. Thus, the court erred in failing to give an instruction on involuntary manslaughter along with its instructions on murder, voluntary manslaughter, and justifiable homicide (People v. Carmen, supra; People v. McCartney, 222 Cal.App.2d 461, 476, 35 Cal.Rptr. 256). While it is true that defendant here made no specific request for the omitted instruction, as in Carmen and McCartney, she did make a request for an instruction on lesser included offenses and such a general request has been held sufficient to invoke the rule of the Carmen case (People v. Lewis, 186 Cal.App.2d 585, 9 Cal.Rptr. 263).

We think an involuntary manslaughter instruction would be calld for by defendant's testimony, even in the absence of a request for an instruction on lesser included offenses. While the trial court need not instruct on specific points developed by the evidence unless requested, instructions must be given, sua sponte, in criminal cases on the 'general principles of law governing the case' (People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 692, 348 P.2d 116, 125). The ends of justice can best be served by providing defendants this judicial safeguard from the possible vagaries or ineptness of counsel under the adversary system. Thus, it has been held error in murder prosecutions to fail to give an unrequested instruction on manslaughter where the facts of the case would warrant a verdict of guilt to such offense (People v. Wade, supra; People v. Manzo, 9 Cal.2d 594, 598--599, 72 P.2d 119; People v. Best, 13 Cal.App.2d 606, 610, 57 P.2d 168). The fact that the accused may claim self-defense, which implies an intentional killing, does not obviate the requirement (People v. Lewis, supra, 186 Cal.App.2d at p. 599, 9 Cal.Rptr. 263; People v. Wright, 167 Cal. 1, 4, 138 P. 349; Pen.Code § 1127).

Furthermore, although voluntary and involuntary manslaughter carry...