People v. Brooks

• Decision Date: 18 September 1986
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronnie BROOKS, Defendant and Appellant. Crim. B 015 269.

Page 86

230 Cal.Rptr. 86

185 Cal.App.3d 687

The PEOPLE, Plaintiff and Respondent, v. Ronnie BROOKS, Defendant and Appellant.

Crim. B 015 269.

Court of Appeal, Second District, Division 3, California.

Sept. 18, 1986.

[185 Cal.App.3d 689] Janyce Keiko Imata Blair, Gardena, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Gary R. Hahn, Robert R. Anderson, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

ARABIAN, Associate Justice.

INTRODUCTION

Following a trial by jury, defendant and appellant Ronnie Brooks (appellant) was convicted of second degree murder (Pen.Code, § 187). The jury also found that appellant had personally used a firearm, to wit, a handgun, in the commission of the offense, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1)(i). Appellant was sentenced to state prison for a total of 17 years to life. He appealed. We reverse the judgment of conviction with directions.

STATEMENT OF FACTS

Approximately 2 p.m. on January 29, 1985, Alvin Brooks, appellant's brother, was stabbed to death in the vicinity of Alamitos and 17th streets in the City of Long Beach.

Approximately two hours later, Thurman Todd was shot and killed in the same area.

The Prosecution's Case

About 4 in the afternoon, Thria Shaun Rontay Joseph Stephens, who lived in a house at 1155 East 17th Street, Long Beach, looked out his window and saw yellow crime scene tape around the "Chinese market" at the southwest corner of Alamitos and 17th streets. He also saw many police officers there.

Stephens walked onto 17th Street and talked with some friends about the stabbing murder of Alvin, which he learned occurred about two hours earlier. There were also about 30 other people on the street, milling around, and talking about Alvin's stabbing.

Directly across 17th Street from Stephen's house, where Stephens and his friends were standing, is an apartment building in which Todd lived. A palm tree stands near the curb that fronts Todd's apartment building. As Stephens watched, Todd, whom Stephens recognized as a neighbor, emerged from his apartment building and walked toward the palm tree. He then saw appellant, who was also familiar with him, walk up 17th Street and cross the street to where Todd was standing.

Thereafter, Stephens heard loud yelling and arguing voices coming from the direction Then Stephens heard five shots in succession, first three shots, then two more. Appellant, who was standing on the far side of the palm tree, had a shiny object in his hand. Stephens saw fires come out of it. Todd fell to the ground. Everyone scattered, including Stephens and appellant.

of the palm tree. He saw about eight people, including Todd, within 10 feet of the palm tree. Stephens recognized the loud voices as belonging to Todd and appellant. The yelling lasted about 10 seconds. They were arguing about an earlier incident. Stephens heard appellant say, "Where is your knife?"

Maurice McAdoo, who was at the corner of 17th and Alamitos streets at about 4:45 p.m., heard gunshots coming from the vicinity of a palm tree near the intersection. He saw appellant throw his arm forward as if he was shooting somebody or pointing something. Then he saw Todd turn, try to run, and fall.

McAdoo made an in-court identification of appellant as the individual he saw extending his arm toward Todd. McAdoo saw appellant previously only once, approximately two hours earlier that same day, right after appellant's brother was stabbed. After that incident, Stephens watched appellant and three others "running up and down the street ... pretty vigorously ... they were going house to house, asking a lot of people different questions, running around the block, coming back, just acting real suspicious."

The next time McAdoo saw appellant, he was sitting in the back seat of a police car and McAdoo identified him as the person who shot the gun.

The Defense Case

The defense presented evidence of events that occurred prior to appellant's confrontation with Todd at the palm tree.

Officer William MacLiman, of the Long Beach Police Department, was assigned to investigate the stabbing. At the crime scene, he was told that appellant was the brother of the stabbing victim. There were probably 100 people standing on the corner and appellant, in a very excited, upset state, was running around talking to people, and trying to find out who killed his brother.

Stephen Filippini, a Long Beach police officer, was also assigned to investigate the stabbing. During the course of his investigation, Filippini placed Todd in the rear of a police car for questioning. He was also placed there for possible transport to the station, because the crowd was getting unruly and Filippini feared for Todd's safety.

Approximately one hour thereafter, appellant, who was extremely upset, approached the police car and asked if he could speak with Todd. Appellant told Filippini he believed Todd knew more about the killing than he was telling and he wanted to talk to Todd about it. Filippini agreed and appellant asked Todd, in Filippini's presence, who stabbed his brother. Todd told appellant his brother was killed by a man named "Silk." Appellant stood around the police car for a few seconds. Filippini stated he thought appellant was trying to think of who "Silk" might be. Appellant then left.

Appellant wandered around the area speaking with several people in the crowd which had congregated at the corner. About five minutes later, appellant ran back to the police car yelling words of abuse at Todd, pulled open the car door, jumped in, and engaged in a struggle with Todd. Appellant and Todd were separated by police officers and appellant left. Two hours later appellant shot Todd.

Appellant did not testify.

ISSUE

Did the trial court prejudicially err in failing to give the defense's requested instructions on the lesser included offense of voluntary manslaughter? Yes.

DISCUSSION

In People v. Ramkeesoon (1985) 39 Cal.3d 346, at page 351, 216 Cal.Rptr. 455, 702 P.2d 613, the California Supreme Court set forth the principles governing this case as follows:

"It is well settled that the trial court is obligated to instruct on necessarily included "The necessity for instructions on lesser included offenses is based in the defendant's constitutional right to have the jury determine every material issue presented by the evidence. (People v. Geiger (1984) 35 Cal.3d 510, 519 [199 Cal.Rptr. 45, 674 P.2d 1303]; People v. Modesto (1963) 59 Cal.2d 722, 730 [31 Cal.Rptr. 225, 382 P.2d 33].)"

offenses--even without a request--when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. (People v. Wickersham (1982) 32 Cal.3d 307, 325 [185 Cal.Rptr. 436, 650 P.2d 311]; People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal.Rptr. 1, 518 P.2d 913].)

The trial court must instruct on lesser included offenses only if the accused proffers evidence sufficient to "deserve consideration by the jury, i.e. 'evidence from which a jury composed of reasonable men could have concluded' " that the particular facts underlying the instructions did exist. (People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1, quoting from People v. Carr (1972) 8 Cal.3d 287, 294, 104 Cal.Rptr. 705, 502 P.2d 513.)

Voluntary manslaughter is statutorily defined as the unlawful killing of a human being upon a sudden quarrel or heat of passion. (Pen.Code, § 192, subd. (a).) "If a killing, even though intentional, is shown to have been committed in a heat of passion upon sufficient provocation the absence of malice is presumed. [Citation.] [p] ... Because the existence of malice is presumed when the circumstances of a killing suggest an intent to kill ... provocation and heat of passion must be affirmatively demonstrated. [Citations.]" (People v. Sedeno (1974) 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913, disapproved on other grounds in People v. Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, italics in original.)

Here, appellant shot the man whom he believed stabbed his brother just two hours earlier. The circumstances suggest that appellant may have acted in the heat of passion upon adequate provocation. Such evidence warrants voluntary manslaughter instructions.

a. Provocation

"[T]here is no specific type of provocation required by section 192...." (People v. Berry (1976) 18 Cal.3d 509, 515, 134 Cal.Rptr. 415, 556 P.2d 777.) Generally it is left to the jury to determine whether " 'the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' " (Ibid.) "It is for the jury to determine whether a particular provocation measures up to that standard. Of course, where the provocation is so slight or so severe that reasonable jurors could not differ on the issue of adequacy, the court may resolve the question." (II Wharton's Criminal Law (14th ed. 1979) Provocation, § 155, pp. 242-243.)

The question whether the murder of a family member is legally adequate provocation for voluntary manslaughter has not been answered by the California courts. In other jurisdictions the killing or harming of a defendant's family member is recognized as adequate provocation. (Collins v. United States (1893) 150 U.S. 62, 14 S.Ct. 9, 37 L.Ed. 998; Whatley v. State (1890) 91 Ala. 108, 9 So. 236; Gresham v. State (1960) 216 Ga. 106, 115 S.E.2d 191; State v. Turner (1912) 246 Mo. 598, 152 S.W. 313; Commonwealth v. Paese (1908) 220 Pa. 371, 69 A. 891; Butler v. State (1894) 33 Tex.Crim. 232, 26 S.W. 201.)

A recognition that murder of a family member is legally adequate provocation for voluntary manslaughter would be consistent with previous decisions in this jurisdiction. Other cases have recognized the disclosure of infidelity of a wife (People v. Berry, supra, 18 Cal.3d...