People v. Escarcega

• Decision Date: 11 June 1969
• Docket Number: Cr. 13845
• Citation: 273 Cal.App.2d 853,78 Cal.Rptr. 785
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fernando ESCARCEGA, Defendant and Appellant.

Page 785

78 Cal.Rptr. 785

273 Cal.App.2d 853

The PEOPLE, Plaintiff and Respondent, v. Fernando ESCARCEGA, Defendant and Appellant.

Cr. 13845.

Court of Appeal, Second District, Division 5, California.

June 11, 1969.

Rehearing Denied July 2, 1969.

Hearing Denied Aug. 6, 1969.

Edward L. Lascher, Ventura, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

Defendant, along with two codefendants, was charged by information in count I with murder, a violation of Penal Code, section 187, and in count II, with assault with a deadly weapon, a violation of Penal Code, section 245. Defendant pleaded not guilty. After a jury trial, defendant was found guilty of 'MANSLAUGHTER (Sec 192.3 PC), a felony, a lesser offense than that charged in count 1 of the amended information but necessarily included therein and ASSAULT WITH A DEADLY WEAPON (Sec 245 PC), a felony, as charged in count 2.' Count II (violation of Penal Code, section 245) was related to an assault upon a person different than the person named as the deceased in count I. Defendant's motion for a new trial was denied. Probation was denied and defendant was sentenced to state prison for the term prescribed by law, the sentences to run concurrently. This appeal is from the judgment of conviction.

Only the fundamental facts are set forth.

Defendant Escarcega, the two codefendants, and one Cuenca were members of a gang. The victims of counts I and II and their companions were members of a rival gang. The two gangs fought frequently. On October 15, 1966, defendant and Cuenca in defendant's car, and the two codefendants in another car, drove into the rival gang's neighborhood and parked across the street from a house where numerous members of the rival gang were congregated on the lawn. There was conflicting evidence as to why and in what manner the ensuing altercation between the two groups started, but when it was over, one Ochoa, a member of the rival gang, lay wounded with a bullet lodged in his abdomen. Ochoa subsequently died from this injury, and was the victim named in count I. A ballistics expert testified that the bullet which killed Ochoa did not come from a pistol. Two witnesses testified that they saw defendant with a rifle. Defendant and a member of the rival gang testified that it was Cuenca who had possession of the rifle and that defendant was armed with what appeared to be a crowbar or a pipe. This testimony was corroborated by the two codefendants. Cuenca was not apprehended until the conclusion of the trial. Defendant admitted that there was a rifle under the hood of his car. How or in what circumstance the rifle was fired at the time Ochoa lost his life is uncertain. Negligent handling of the gun or the commission of a misdemeanor ¹ with death resulting therefrom is within a reasonable construction of the evidence. There was testimony by the victim named in count II that defendant fired the rifle at him.

Defendant's first contention is that his conviction of a violation of Penal Code, section '192.3' ² as a lesser included offense in the charge of murder is void since a violation of that section was neither charged nor proved and it is not a necessarily lesser included offense. Subdivision 3 of Penal Code, section 192 deals with vehicular manslaughter. Defendant is partially correct. He could not have been convicted of vehicular manslaughter. He was not so charged and the evidence clearly established that the victim died of a bullet wound. However, it is clear that the only problem presented is one of a clerical error in that the subdivision number of Penal Code, section 192 ³ was incorrectly designated. The jury was instructed on voluntary and involuntary manslaughter. It is evident that the court clerk gave the jury a verdict form with a wrong Penal Code subdivision inadvertently designated, and the jury, in returning that form, simply desired and intended to find defendant guilty of a manslaughter, which, under the circumstances here present, was a 'lesser included offense.' It is, of course, clear that more care should have been taken in the preparation of the forms of verdict so that a question such as is now presented would not arise. Counsel for defendant apparently understood what was intended by the verdict since no objection was then made to the form of the verdict. When read in the light of the record, it is clear what the jury intended in its determination. (See People v. Butterfield, 177 Cal.App.2d 553, 557, 2 Cal.Rptr. 569.) In giving effect to the manifest intention of the jury, the clerical error will be disregarded. (People v. Reddick, 176 Cal.App.2d 806, 821, 1 Cal.Rptr. 767.) The verdict ultimately returned can be understood only as evidencing the jury's determination to convict defendant of manslaughter. Necessarily, it was of a kind other than that which is committed in the driving of a motor vehicle. Under these circumstances, we may and should correct the verdict and judgment as entered by striking therefrom the incorrect subdivision reference. This does not accomplish a satisfactory determination of the case, however.

Whether the record is such as would permit this court to designate which subdivision of section 192 was violated, or whether, under any circumstance, this court would have such authority, we need not decide. Error in instruction of the jury relative to manslaughter requires a reversal in the instant case.

The case as it relates to count I and the conviction of a lesser included offense therein is reversed because a necessary instruction defining misdemeanor was not given (People v. Failla, 64 Cal.2d 560, 564, 51 Cal.Rptr. 103, 414 P.2d 39) and the jury wass not advised as to which acts would amount to misdemeanors, though such an instruction was requested, albeit belatedly. At the close of the judge's delivery of the jury instructions, except as to the final instruction sending the jury to the jury room, the following colloquy took place:

'MR. WALTON (attorney for Escarcega): Your Honor, I have a question on instructions.

'THE COURT: All right, what is it?

'MR. WALTON: May we approach the bench?

'THE COURT: Is there any necessity for that?

'MR. WALTON: Well, I think that the Court should read 417 of the Penal Code to the jury.

'THE COURT: Did you offer an instruction on that?

'MR. WALTON: No, I did not. And I want to assume responsibility for not having done that. This is the problem. The jury has been told that a manslaughter can be the unlawful killing of a human being during the commission of a misdemeanor. The jury has not been told what a misdemeanor is, either generally, or what specific misdemeanor might be involved.

'THE COURT: Your request will be denied.'

Thereupon the concluding instruction was given and the jury retired to deliberate.

The court instructed the jury that 'manslaughter' was a lesser included offense necessarily included in a charge of 'murder.' (People v. Jackson, 202 Cal.App.2d 179, 20 Cal.Rptr. 592.) Within the instructions on manslaughter, the court stated: 'There are two classes of involuntary manslaughter. Involuntary manslaughter is the unlawful killing of a human being without malice aforethought during the commission of a misdemeanor which is inherently dangerous to human life or safety; * * *.'

That the failure of the court to grant the request to instruct on a definition of misdemeanor was error is now without question. Even in the absence of such request, the court should have so instructed Sua sponte. 'The judge may then charge the jury, and must do so on any points of law pertinent to the issue, if requested by either party; * * *.' (Pen.Code, § 1093(6).) 'It is settled that in criminal cases, even when not requested, the court must instruct on the general principles of law relevant to the issues raised by the evidence. (Citations.) (Footnote omitted.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case. (Citations.) * * *. Furthermore, instructions on section 417 were necessary to a proper understanding of the instruction that the killing of a person without malice in the commission of an unlawful act not amounting to a felony is involuntary manslaughter. (Cf. People v. Carmen, Supra, 36 Cal.2d 768, 776, 228 P.2d 281.) In the circumstances of the present case, it was error for the court to fail to instruct on its own motion on section 417.' (People v. Wilson, 66 Cal.2d 749, 759--760, 59 Cal.Rptr. 156, 163, 427 P.2d 820, 827.)

In drafting instructions upon retrial, the attention of the trial court is directed to People v. Wynn, 257 Cal.App.2d 664, 675--676, 65 Cal.Rptr. 210; People v. Alfreds, 251 Cal.App.2d 666, 59 Cal.Rptr. 647; People v. Bross, 240 Cal.App.2d 157, 49 Cal.Rptr. 402.

The reversal of the judgment as to count I does not dispose of the other contentions raised by defendant. We therefore consider those additional contentions which are equally applicable to the judgment in count II, or are of such a nature that an adverse effect as to that judgment may have resulted.

Defendant urges that a reversal is required because of technical noncompliance with that part of Penal Code, section 1127 which requires that '* * *. Upon each charge presented and given or refused, the court must endorse and sign its decision and a statement showing which party requested it. * * *'

The reporter's transcript and the clerk's transcript each contains the statement that the jury was instructed. The court declared it was Orally instructing the jury, as distinct from the reading of prepared written instructions. This procedure is in compliance with Penal Code, section 1127, and there is no merit to defendant's contention. (People...