People v. Flannel

Decision Date13 November 1979
Docket NumberCr. 20869
Parties, 603 P.2d 1 The PEOPLE, Plaintiff and Respondent, v. Charles M. FLANNEL, Defendant and Appellant.
CourtCalifornia Supreme Court

Page 84

160 Cal.Rptr. 84
25 Cal.3d 668, 603 P.2d 1
The PEOPLE, Plaintiff and Respondent,
Charles M. FLANNEL, Defendant and Appellant.
Cr. 20869.
Supreme Court of California, In Bank.
Nov. 13, 1979.
As Modified on Denial of Rehearing Jan. 24, 1980.

[25 Cal.3d 671]

Page 85

[603 P.2d 2] Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Clifton R. Jeffers, Chief Asst. State Public Defender, Robert P. Mason and Michael G. Millman, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler and Robert H. Philibosian, Chief Asst. Attys. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins and David D. Salmon, Deputy Attys. Gen., for plaintiff and respondent.

[25 Cal.3d 672] TOBRINER, Justice.

Defendant Charles M. Flannel appeals from a judgment of conviction entered on jury verdicts finding him guilty of second degree murder (Pen.Code, § 187), and finding affirmatively on a firearm use allegation (Pen.Code, §§ 1203, subd. d(6) and 12022.5). He contends that the court erred in failing to instruct the jury sua sponte that defendant's honest but unreasonable belief that he must defend himself from deadly attack negates malice so that the offense is reduced from murder to manslaughter. Defendant also urges that the court should have given requested instructions on diminished capacity (CALJIC Nos. 8.77 and 8.41). We explain our reasons for rejecting these contentions.

California decisions long have acknowledged that factors other than the statutorily suggested "sudden quarrel or heat of passion" can negate malice aforethought, the mental element necessary for murder. Most of these cases, of course, applying the doctrine of diminished capacity, hold that evidence of intoxication, mental defect, or disease can rebut malice. Other decisions, including those of this court, recognize, albeit without full discussion, that one who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.

Nevertheless, a trial court's duty to instruct Sua sponte on this defense arises only in a case in which the evidence presents issues relevant to "general principles of law." When a rule applies so seldom that courts have found no occasion to give it full, substantive discussion and California Jury Instructions, Criminal (CALJIC) has not set it out as a standard instruction, we decline to proclaim that, heretofore, the rule expressed a general principle. We conclude that the court did not err in failing to instruct of its own motion.

Defendant also claims that the trial court erred in giving CALJIC No. 4.21, explaining the effect of intoxication on the intent necessary for murder, but in refusing Nos. 8.77 and 8.41 defining diminished capacity and its relationship to manslaughter. Prior decisions of this court establish that a court does not err in rejecting instructions on diminished capacity if no "substantial evidence" supports the defense. In the instant

Page 86

case, defendant consumed relatively small amounts of alcohol over a long period of time, five eyewitnesses testified that the ingestion [25 Cal.3d 673] of alcohol did not affect defendant's[603 P.2d 3] conduct, and defendant's own testimony equivocated on this subject. We conclude that the evidence was not substantial enough to require instructions on diminished capacity. Further, if the trial court erred in giving No. 4.21, the error favored defendant and did not effect prejudice. Therefore, we affirm defendant's conviction.

1. The facts.

On June 28, 1976, about 4:15 in the afternoon, defendant shot and killed Charles Daniels. The two men had a history of hostile and violent relations. Daniels objected to defendant's treatment of Daniel's common law daughter, who was defendant's girlfriend, later his wife. Defendant resented Daniels' interference with his romance. Previously, both men had threatened each others' lives. In January 1976 defendant attacked Daniels at a friend's home, kicking Daniels in the chest and head and hitting him with a glass. Rather than prosecute defendant, the district attorney's office held a citation hearing and warned the two men to avoid one another.

On the morning of the killing defendant consumed some four tall cans of beer and a shot or two of whiskey, took his girlfriend shopping and ate lunch. He joined friends in front of a building in Oakland about 2:30 that afternoon. As he talked with friends, defendant shared some beer and whiskey.

About 4 p. m. defendant, observing Daniels approach from nearby, retrieved his gun from the trunk of his car. One friend reassured him that there was no need for a gun, that everybody was "his friend"; when Daniels came close a second time at 4:15 another friend urged defendant to leave in order to prevent trouble. Defendant walked about 12 or 14 feet away but changed his mind and returned to watch Daniels arrive.

Daniels and the group exchanged greetings. Defendant walked up to Daniels and, standing directly in front of him with his hand on the gun in his right front pocket, asked him what was "happening." Daniels graphically told defendant to "stop messing" with him, that they were not supposed to be around each other, and asked him to "get goin'."

Daniels began backing away from the car upon which he had been leaning, waiving defendant away with his left hand while his right hand [25 Cal.3d 674] remained near his back pocket where he was known to have kept his knife. Defendant followed, saying "Was you going to stick me in the side with a knife?" "Come on pull your knife." He then drew the gun from his pocket, extended his arm full length and fired one shot into Daniels' temple from a distance of approximately two feet. As Daniels fell, his switchblade knife flew into the air, landing on the ground where it spun around and popped open. No one observed the knife in Daniels' hand.

Defendant immediately told his friends not to touch Daniels but to "leave him right there." He said, "He pulled a knife on me," adding that Daniels "deserved to be dead, nobody cares." Defendant dropped his weapon and waited until the police arrived.

At trial defendant relied on a theory of self-defense. He testified that Daniels came toward him, grabbed his chest to stabilize him, that Daniels then drew his knife from his back pocket. Defendant was "surprised and scared." Seeing the knife, he pulled his gun out of his front pocket, then jerked away from Daniels and, as Daniels came at him again, he fired. Defendant also testified that he thought he was drunk at the time of the killing.

The trial court instructed the jury on first and second degree murder, the nature and role of malice in murder and manslaughter, the effect of sudden quarrel and heat of passion, and the effect of intoxication on the intent to commit murder (CALJIC No. 4.21). 1 The court refused, however,

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[603 P.2d 4] to instruct generally on diminished capacity and the relationship of diminished capacity to voluntary manslaughter.

2. An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.

To be exculpated on a theory of self-defense one must have an honest And reasonable belief in the need to defend. (Pen.Code, § 197; Jackson [25 Cal.3d 675] v. Superior Court (1965) 62 Cal.2d 521, 529, 42 Cal.Rptr. 838, 399 P.2d 374; People v. Moore (1954) 43 Cal.2d 517, 526-529, 275 P.2d 485; People v. Holt (1944) 25 Cal.2d 59, 65, 153 P.2d 21.) A bare fear is not enough; "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (Pen.Code, § 198.)

This rule is not questioned here. Rather, the issue is whether a defender has committed murder or manslaughter when his belief, although honestly held, fails to meet the standard of a "reasonable person."

In People v. Wells (1949) 33 Cal.2d 330, 202 P.2d 53, a prison inmate charged with assault on an officer, a capital offense requiring malice aforethought, sought to introduce evidence of an abnormal mental condition, not amounting to insanity, which caused him to fear for his personal safety. We stated that if defendant "acted only under the influence of fear of bodily harm, in the belief, Honest though unreasonable, that he was defending himself from such harm by the use of a necessary amount of force, then defendant, although he would not be guiltless of crime, would not have committed that particular aggravated offense with which he is charged, for the essential element of 'Malice aforethought ' would be lacking." (Emphasis added.) (33 Cal.2d at p. 345, 202 P.2d at p. 62-63.) Wells, then, stands for the proposition that as a mental state, malice cannot coexist with such an unreasonable belief; in finding no prejudicial error, we stated that the jury could find malice motivated the action rather than the "influence of honest, mistaken fear," (Id., at p. 358, 202 P.2d 53) which could have negated malice aforethought.

The same issue as to the legal effect of an unreasonable belief emanating from the need to defend oneself has been faced in cases involving homicide. In People v. Lewis (1960) 186 Cal.App.2d 585, 9 Cal.Rptr. 263, defendant was convicted of first degree murder. At trial he relied on a theory of self-defense but requested instructions on manslaughter and lesser included offenses. The trial court refused the latter requests, giving instructions only on self-defense and murder.

In reversing for prejudicial error, the Court of Appeal held that the proper offense in a case of unreasonable belief is manslaughter. The court stated that "Taking the...

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