People v. Breverman, S058721

• Citation: 960 P.2d 1094,77 Cal.Rptr.2d 870,19 Cal.4th 142
• Decision Date: 31 August 1998
• Docket Number: No. S058721,S058721
• Court: United States State Supreme Court (California)
• Parties: , 960 P.2d 1094, 98 Cal. Daily Op. Serv. 6812, 98 Daily Journal D.A.R. 9358 The PEOPLE, Plaintiff and Respondent, v. Scott BREVERMAN, Defendant and Appellant

Page 870

77 Cal.Rptr.2d 870

19 Cal.4th 142, 960 P.2d 1094, 98 Cal. Daily Op. Serv. 6812,

98 Daily Journal D.A.R. 9358

The PEOPLE, Plaintiff and Respondent, v. Scott BREVERMAN, Defendant and Appellant.

No. S058721.

Supreme Court of California

Aug. 31, 1998.

[19 Cal.4th 147] [960 P.2d 1096] Marcia A. Morrissey, Santa Monica, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka, Jaime L. Fuster, Sharon Wooden Richard, William T. Harter and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, Justice.

Two young men who were walking by defendant's house got into a fight with a larger group of youths congregated in the driveway. The two sustained cuts and bruises before the fracas ended and they were allowed to leave. The next night, at least one of the pair returned with a group of friends to exact some sort of retaliation. Members of the group taunted defendant, then used a baseball bat and other implements to batter his automobile, which was parked in the driveway near his front door. Defendant fired several shots through a window pane in the front door, then came outside and fired further shots toward the fleeing vandals. One bullet from this second volley fatally wounded a member of the group.

Defendant was charged with murder. The jury also received instructions on justifiable homicide ("reasonable" self-defense) and on the lesser "necessarily included" offenses of voluntary and involuntary manslaughter. The voluntary manslaughter instructions were premised entirely on the theory of "unreasonable" self-defense. (See People v. Flannel (1979) 25 Cal.3d 668, 674-680, 160 Cal.Rptr. 84, 603 P.2d 1 (Flannel ).)

Defendant appealed his murder conviction, urging, inter alia, that the trial court erred by failing to instruct, sua sponte, on a "heat of passion" theory of voluntary manslaughter (see Pen.Code, § 192, subd. (a) (section 192(a)) ¹ which was also supported by the evidence. The Court of Appeal agreed. It further found the error prejudicial under People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913 (Sedeno ), because the jury had not necessarily resolved, in another context, the issue posed by the omitted instruction. The Court of Appeal therefore reversed the conviction.

We granted review to consider two issues: First, does the sua sponte duty to instruct on lesser necessarily included offenses (Sedeno, supra, 10 Cal.3d 703, 715-716, 112 Cal.Rptr. 1, 518 P.2d 913) extend to every theory of such an offense that finds rational support in the evidence? Second, what standard of appellate reversal should apply to an erroneous failure to instruct, or to instruct completely, on a lesser included offense?

We now reach the following conclusions: California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence. The Court of Appeal correctly ruled that in a murder prosecution, this includes the obligation to instruct on every supportable theory of the lesser included offense of voluntary manslaughter, not merely the theory or theories which have the strongest evidentiary support, or on which the defendant has openly relied. Here, there was substantial evidence to support a heat of passion theory of voluntary manslaughter, and the instant trial court should therefore have instructed on this theory.

However, we further conclude, the Sedeno standard of near-automatic reversal for this form of error should be abrogated. The sua sponte duty to instruct fully on all lesser included offenses suggested by the evidence arises from California law alone. Moreover, a failure to fulfill this duty is not a structural defect in the proceedings, but mere misdirection of the jury, a form of trial error committed in the presentation of the case. Hence Because the Court of Appeal applied the Sedeno standard we now overrule, and therefore reversed defendant's murder conviction without determining from the entire record whether there was a reasonable probability the error affected the outcome, the Court of Appeal's judgment must be reversed. Under the circumstances, we will remand the cause to the Court of Appeal for an evaluation of prejudice under Watson. If the Court of Appeal concludes the error was harmless by that standard, it should proceed to consider the numerous other claims raised by defendant on appeal.

                by virtue of the California Constitution, reversal is not warranted unless an examination of "the entire cause, including the evidence," discloses that the error produced a "miscarriage of justice."  (Cal. Const., art.  VI, § 13.)   This test is not met unless it appears "reasonably probable" the defendant would have achieved a more favorable result had the error not occurred.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 (Watson).)
                

FACTS AND PROCEDURAL BACKGROUND

Defendant was charged by information with the murder of Andreas Suryaatmadja. (§ 187, subd. (a).) ² The information also alleged a firearm use enhancement. (§ 12022, subd. (a).)

Insofar as pertinent here, the prosecution evidence was as follows:

On the evening of December 17, 1993, Yoon Ju and Hyun (Bill) Kim were walking in Chatsworth on their way to play pool. As they passed defendant's residence at 21747 Hiawatha Street, words were exchanged with a larger group of young people who were drinking beer in the garage and driveway area. A fight ensued. Ju and Kim were kicked and beaten, and they received minor injuries. Kim testified defendant was present at the fight but stayed in the background.

Between 8 and 10 p.m. the next evening, December 18, Kim and six to ten friends, including victim Suryaatmadja, returned to defendant's neighborhood. The group was riding in two cars, a gray Nissan and a black Honda. The aim was to have an even fight with those who had beaten Kim and Ju the night before. The group parked around the corner from defendant's residence. Kim had a fishing knife, and the group was armed with other weapons, including a baseball bat and parts of a "Club" automobile security device.

Kim first approached the residence alone. When it appeared nobody was home, Kim slashed a tire of a BMW automobile parked in defendant's driveway and walked back to his waiting friends. As Kim did so, defendant came out of the house and checked the BMW. Some of Kim's friends yelled to defendant to bring out his friends for an even fight. Defendant saw the group and went back inside.

The group then drove by a back route, parked up the street on the other side of defendant's house, and began walking toward defendant's residence. Suryaatmadja and another person may have hung back at an intersection. Once the main group arrived in front of defendant's house, four or five individuals came up to the BMW and began hitting the car with the bat, the Club pieces, and a broken broomstick. The group may have been shouting epithets. Suryaatmadja was not in the group that hit the car.

The BMW's alarm went off, and moments later, shots came from the front door of defendant's residence. The shots continued as the group began to run away. During the second of two separate volleys, Kim looked back and saw defendant firing from his driveway near the public sidewalk. When the gunfire stopped, Suryaatmadja was lying in the street, unconscious and bleeding from the head. He died at a hospital several hours later. The cause of death was a bullet that entered the right rear of the victim's head and exited above his right eye.

Defendant told a responding police officer that he fired at "armed" Asians who were "beating on his car, vandalizing his car," and that he feared the people would come into his house. The officer saw two metal rods or pipes in the street.

In a tape-recorded police interview, defendant stated as follows: ³ During the fight of December 17, he was inside the house, sick and asleep. On the evening of December 18, as he entered his car to go to the market, a group of unknown men came toward him, yelling. He reactivated his car alarm, ran back inside, told his mother to call 911, but then wondered if he was being too "paranoid." Nothing happened for five minutes. Defendant and a friend, Kyle Beck, then peered over the back fence. They did not observe anybody in the area where the group had previously been spotted, but when defendant turned his gaze, he saw the group approaching again from the opposite direction, still yelling. Defendant ran back inside to tell his mother "they're coming." He then heard the alarm go off as they began "bashing" his car. Defendant saw at least 12 people, and they were "mobbing[,] basically." He broke the glass in the front door and fired three or four rounds "kind of ... like downward." The intruders stopped hitting his car, but defendant came outside and shot six or seven more times as the group fled. He was not "aiming" and did not intend to hit anybody. ⁴ He was "trying to get them to stop" because they had "done a lot of damage to [his] car," and he wanted to "hold [them] until the cops came" so they would be "arrested or whatever." When his semiautomatic weapon, which held 13 rounds, ran out of ammunition, he ran back inside. His mother was already making an emergency call. He locked the door and waited for the police.

Defendant also insisted that when he fired from inside, it looked like the group was "coming at me" and "rushing the door." Defendant declared that he "thought we were going to get killed."

The police recovered four shell casings from inside the house and another ten from the driveway. There was bullet damage to the BMW, and to two vehicles parked in the street, at heights and angles that suggested level firing. One bullet passed through the third story wall of a townhome over a block away. The pool of blood where the victim fell...