People v. Barton

• Decision Date: 18 December 1995
• Docket Number: No. S031258,S031258
• Citation: 47 Cal.Rptr.2d 569,906 P.2d 531,12 Cal.4th 186
• Court: California Supreme Court
• Parties: , 906 P.2d 531, 95 Cal. Daily Op. Serv. 9682, 95 Daily Journal D.A.R. 16,782 The PEOPLE, Plaintiff and Respondent, v. Howard BARTON, Defendant and Appellant.

Page 569

47 Cal.Rptr.2d 569

12 Cal.4th 186, 906 P.2d 531, 95 Cal. Daily Op. Serv. 9682,

95 Daily Journal D.A.R. 16,782

The PEOPLE, Plaintiff and Respondent, v. Howard BARTON, Defendant and Appellant.

No. S031258.

Supreme Court of California.

Dec. 18, 1995.

Charles M. Sevilla, Cleary & Sevilla, San Diego, for appellant.

Barry J.T. Carlton, Office of the Attorney General, San Diego, for respondent.

KENNARD, Justice.

In a criminal trial, it is ordinarily the trial court's duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed.

Here, defendant was charged with murder. At trial, the parties presented evidence from which the jury could reasonably conclude that he was guilty not of murder, but of voluntary manslaughter, a lesser offense included within the crime of murder. For tactical reasons, however, defendant asked the trial court not to instruct the jury on voluntary manslaughter; the court denied the request. The jury convicted defendant of voluntary manslaughter, and the trial court sentenced him to a 10-year prison term. Defendant now contends that the trial court should not have given the instruction at issue.

We conclude that a defendant may not invoke tactical considerations to deprive the jury of the opportunity to consider whether the defendant is guilty of a lesser offense included within the crime charged. A trial court should instruct the jury on any lesser included offense supported by the evidence, regardless of the defendant's opposition. Thus, the trial court in this case acted properly when, over defendant's objection, it instructed the jury on voluntary manslaughter. We therefore affirm the judgment of the Court of Appeal, which upheld defendant's conviction.

I

Defendant was charged with the murder of Marco Sanchez. (Pen.Code, § 187; unless otherwise stated, all statutory references are to the Penal Code.) The relevant facts are these:

On the morning of February 22, 1990, while driving her car on Grand Avenue in Pacific Beach, Andrea Barton, defendant's 20-year-old daughter, had an unpleasant encounter with Marco Sanchez, the victim in this case. Eyewitness accounts of this incident differed. Most witnesses, however, testified that Sanchez, whose car was behind Andrea's, honked his horn when Andrea's car stalled in an intersection, and that Andrea responded with a rude gesture. Sanchez then cut into Andrea's lane so close to Andrea's car that she had to brake and swerve to the side of the road to avoid a collision, whereupon Sanchez drove his car next to Andrea's and spat on the closed passenger window of Andrea's car.

Extremely upset over the incident, Andrea drove to defendant's nearby real estate office and told him what had occurred. Defendant suggested that they look for Sanchez's car. Defendant, who managed several apartment buildings and frequently carried large sums of money, had a permit to carry a concealed Defendant and Andrea located Sanchez's car in a nearby shopping center. They found Sanchez at one of the stores. A lengthy argument ensued. Defendant waved his finger in Sanchez's face and swore at him. According to one prosecution witness, Sanchez was also mad and swearing, but another prosecution witness described Sanchez as frightened and defensive.

[906 P.2d 533] weapon for business purposes only. He had received training in the use of semiautomatic weapons during the six years he spent in the Marine Corps (six months on active duty, five and one-half years reserve duty), and owned about fifteen guns. He customarily carried a semiautomatic handgun in his pocket, and had one with him on this occasion.

Sanchez left the store, followed by defendant and Andrea. About a minute later, Andrea returned to the store. She told a cashier to call the police because Sanchez's car "is going to get really thrashed."

In the meantime, Sanchez entered another store, where he briefly talked to his 12-year-old sister-in-law, Delicia Goodwin, who had been with him during the incident at the intersection. Sanchez then left the store and walked rapidly to his car, opened the driver's side door and got in. Before Sanchez had a chance to close the car door, defendant drew his gun and moved in front of the door. He assumed what witnesses described as a "police stance," holding the gun in his right hand and resting it on his left palm, with his knees slightly bent. Daryl Zack, the owner of a nearby coin store, heard defendant tell Sanchez, "Get the fuck out of the car or I'll shoot you." Zack and several other witnesses heard defendant say repeatedly that if Sanchez did not "drop the knife" or "put the knife away," he would "blow [Sanchez's] head off." None of the witnesses saw Sanchez with a knife. ¹

Defendant then shot Sanchez. According to some witnesses, Sanchez made an abrupt movement just before the shot was fired; others saw no such movement. The shot struck Sanchez in the back and lodged in his neck; he got out of the car's passenger-side door and staggered to a nearby store, where he collapsed, dead. Defendant waited at the scene for the police to arrive.

Prosecution witness Eugene Wolberg, a police criminalist with the San Diego Police Department, testified that defendant fired the fatal shot while standing three and one-half to four feet from Sanchez. Based on the path traveled by the bullet, Wolberg concluded that at the moment of impact Sanchez was probably leaning over in the driver's seat with his head down, looking away from defendant towards the passenger door; his position was consistent with an attempt either to pick up something from the floorboard or to move to the passenger side of the car. Police found a closed folding knife under the passenger seat and a pair of scissors beneath an electrical cord on the passenger floorboard.

Defendant, testifying on his own behalf, claimed that the shooting was an accident. He gave this version of events: When he and Andrea first encountered Sanchez at the shopping center, Andrea complained to Sanchez about his spitting on her car window. In response, Sanchez "went berserk," and told Andrea, "Well, do something about it, bitch." Andrea and Sanchez then began to argue, soon joined by defendant. As defendant, Andrea, and Sanchez left the store, Sanchez assumed a "fighting stance," and challenged defendant to a fight. Defendant told Andrea to call the police. Saying, "I'm going to go get my witnesses at the store," Sanchez went into a store and came out with a "gal." ² The two of them looked at defendant, laughed, and went back into the store. Moments later, Sanchez came out of the store alone, walked rapidly to his car, and got in. When defendant stepped in front of the car door and asked what he was doing Both the prosecution and the defense offered expert testimony regarding the likelihood that defendant could accidentally have discharged the gun. Criminalist Eugene Wolberg, who testified for the prosecution, stated that defendant's gun had a "trigger pull" of 7.1 pounds, meaning that the gun would fire if the trigger was subjected to 7.1 pounds of pressure, which he described as a "medium-weight pull." Because the gun was a "single action" pistol, it was more likely to discharge accidentally than a "double action" pistol, as the former will fire when the trigger has traveled a shorter distance. Defense expert Richard Whalley, a criminalist and former head of the San Diego Police Department's crime laboratory, testified that the trigger on double-action guns must generally travel about two centimeters (twenty millimeters) for the gun to discharge, while defendant's single-action gun would discharge when the trigger traveled only one millimeter, a factor that Whalley considered "very significant" in assessing the likelihood that the fatal bullet that killed Sanchez was discharged accidentally.

                [906 P.2d 534] Sanchez replied:  "None of [12 Cal.4th 193] your fucking business."   Sanchez then swung at defendant, who fell back against the open car door.  Defendant saw what looked like a blade in Sanchez's hand.  Defendant drew his gun to detain Sanchez until the police arrived, put a round in the chamber and yelled at Sanchez to put the knife on the ground and to get out of the car.  When Sanchez made a sudden movement toward defendant, defendant closed his eyes, stepped back, and the gun accidentally discharged.  Defendant denied any intent to shoot
                

In the opinion of defense witness Kevin Gilmartin, a psychiatrist, defendant responded to Sanchez's sudden movement by firing reflexively, "in fear of his life." Another defense witness, psychiatrist Haig Koshkarian, explained that persons who perceive themselves to be in great danger enter a "fight or flight state" in which they react reflexively to any sudden movement or sound.

Defendant also presented character evidence of his dependability, honesty, and lack of ethnic or racial bias, and of Sanchez's reputation for violence.

During a conference on proposed jury instructions, defense counsel asked the trial court not to instruct on voluntary manslaughter (§ 192, subd. (a)) as a lesser offense included in the crime of murder. He contended that since voluntary manslaughter requires an intent to kill, it was inconsistent with the defense theory that the killing of Sanchez was accidental. The prosecutor asked the court to give the instruction, stating: "Whether or not it's [a verdict] that I would be urging the jury to reach, I certainly believe it's one they could arrive at based on the state of the evidence in this case." Over defendant's objection, the trial court instructed the jury that it should convict defendant of the lesser offense of voluntary manslaughter if it found either that the killing occurred in a sudden quarrel or heat of passion, or that defendant killed Sanchez in the honest but unreasonable belief...