People v. Germany

• Decision Date: 08 October 1974
• Docket Number: Cr. 1583
• Citation: 42 Cal.App.3d 414,116 Cal.Rptr. 841
• Parties: The PEOPLE, Plaintiff and Respondent, v. Elmo GERMANY, Jr., et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 841

116 Cal.Rptr. 841

42 Cal.App.3d 414

The PEOPLE, Plaintiff and Respondent, v. Elmo GERMANY, Jr., et al., Defendants and Appellants.

Cr. 1583.

Court of Appeal, Fifth District, California.

Oct. 8, 1974.

Hearing Denied Dec. 5, 1974.

[42 Cal.App.3d 416] Richard F. Ellers, Nevada City, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, James T. McNally and Harriet Wiss Hirsch, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Elmo Germany, Jr., and Danny Robert Thomas were convicted by a jury of voluntary manslaughter, a lesser included offense within the charged crime of murder. (Pen.Code, §§ 187, 192, subd. 1.) On this appeal from the judgments they urge error regarding instructions on the element of intent in voluntary manslaughter and that self-defense was established as a matter of law. As to the appellant Thomas, who was represented by the City Attorney of Hanford, the court is faced with the additional question of whether People v. Rhodes (1974), 12 Cal.3d 180, 115 Cal.Rptr. 235, 524 P.2d 363, decided subsequent to the briefing herein, has any operative effect as to this appeal.

The evidence is somewhat in conflict as to the events immediately preceding the shooting of Keith McCarty, the victim. We resolve these conflicts in favor of the respondent and view the evidence in the light most favorable to it. (People v. Crowe (1973) 8 Cal.3d 815, 833--834, 106 Cal.Rptr. 369, 506 P.2d 193.)

On the evenign of June 17, 1972, at the Kings County Fair, Keith McCarty was fatally wounded by three bullets from a gun held by appellant Thomas.

Thomas had arrived at the fair between 10 and 10:30 p.m. that evening, accompanied by appellant Germany and his sister, Lavonne. While near the photo booth, McCarty, the victim, approached Lavonne, whom he knew, and asked for one of the pictures she just had taken. While discussing the pictures, McCarty removed a tobacco pouch from his pocket, and Lavonne asked him where he had gotten it; McCarty responded that he had found it on the ground. Germany and McCarty then began arguing over the pouch, Germany claiming that it was the same pouch he had lost the night before at the fair and which had contained $15.

The argument between Germany and McCarty continued as they walked into the bathroom, where they were followed shortly by Thomas who became involved in the argument on behalf of Germany.

McCarty subsequently approached his friend, Sammy Aguirre, and whispered to him asking him to 'tell this guy you gave me a bag.' Aguirre did so, but the argument continued. Eventually, germany told McCarty, 'You just owe me $15,' and walked away with Lavonne toward the south gate to leave the fair. Thomas continued to argue with McCarty, however, and someone caught up with Germany and Lavonne and told them Thomas was surrounded and that 'Man, Keith (McCarty) is going to jump (Thomas).' Germany returned to the area where the argument was continuing and observed that a crowd had surrounded Thomas and McCarty. McCarty was then heard telling Thomas, 'he was going to kill him,' and Thomas replied, 'Don't threaten me. You kill me or be killed.' Several other threats were exchanged during the developing tension.

Germany testified that as the group started walking, he heard one of McCarty's companions go up to McCarty and tell him to 'go to the car and get the shotgun.' McCarty had a reputation for carrying a shotgun in his car. McCarty's companion denied making this statement, however, and, in any event, all the witnesses agreed that McCarty then started running toward the south exit of the fairgrounds where his car was parked. Germany, Thomas and Lavonne then proceeded in the same direction, and Germany caught up with McCarty and the argument continued. One witness testified that while Germany was chasing McCarty he had a gun in his hand.

During the course of the continuing argument, Germany pointed the gun at McCarty's chest. Someone in the crowd gathering around yelled to McCarty to 'Get those Niggers,' and McCarty said something to the effect 'Man, I am going to finish this thing tonight. Man, if I go to my car and get my shotgun . . . I am going to kill both of you.' As McCarty started walking away, Thomas told Germany, 'Give me the gun and I will show you what to do with it.' Thomas then took the gun from Germany and then, according to several witnesses, ran up to McCarty. McCarty again started walking away, but Thomas pushed him back and said, 'I am not playing, dammit.' Thomas then fired one shot in the air. According to several witnesses McCarty then simply stood still, while other witnesses testified that he started toward Thomas. Thomas then shoved McCarty back and shot him. McCarty doubled over and then fell, and Thomas shot him twice more as he lay helpless. When the gun started clicking, Thomas and Germany took off running with Lavonne toward their car parked at the south gate. Lavonne then drove away and eventually let Thomas and Germany out on the highway, where they hitchhiked a ride to Fresno.

McCarty died about 3 a.m. on the morning of June 18, 1972, due to shock and hemorrhage due to a gunshot wound in the abdomen. On August 18, 1972, two months after McCarty's death, Germany and Thomas were arrested by a Fresno police officer in the city of Fresno. Appellants' defense was that of self-defense, asserting that they felt threatened by McCarty, who purportedly was going to get his shotgun, and also by the other people around them who appeared to be siding with McCarty.

Appellants complain of the court's instructions on the issue of the intent necessary to establish the crime of voluntary manslaughter. CALJIC No. 2.02 ('Sufficiency of Circumstantial Evidence to Prove Specific Intent') was modified at appellants' request by striking out all references to 'specific intent' and substituting therefor 'criminal intent.' Appellants also point out that CALJIC No. 3.30, concerning the misdemeanor of brandishing a weapon (Pen.Code, § 417), equated the term 'criminal intent' with 'General intent.' And finally, appellants direct our attention to the fact that there was no instruction given on the concurrence of act and specific intent.

Appellants argue that, taken together, these instructions misled the jury 'by creating the impression that voluntary manslaughter required only a general criminal intent.'

Voluntary manslaughter is a specific intent crime (People v. Gorshen (1959) 51 Cal.2d 716, 732--733, 336 P.2d 492) and the substitution of the words 'criminal intent' for the words 'specific intent' in CALJIC No. 2.02 (see Appendix 1) was error, as was the omission to give an instruction on the necessity of concurrence of act and specific intent. (People v. Turner (1971) 22 Cal.App.3d 174, 184, 99 Cal.Rptr. 186.) However, in the light of all of the instructions, which must be read together, and the evidence at trial, we have concluded that these errors were harmless.

The jury was properly instructed that '(v)oluntary manslaughter is the Intentional and unlawful killing of a human being without malice aforethought' (CALJIC No. 8:40; emphasis added) and that involuntary manslaughter 'is the unlawful killing of a human being without malice aforethought and without an intent to kill' (CALJIC No. 8.45). Further, the jury was instructed on the crimes of first and second degree murder and was instructed on the heat of passion necessary '(t)o Reduce an Intentional felonious homicide from the offense of murder to manslaughter. . . .' (CALJIC No. 8.42; emphasis added.)

These instructions make it clear that voluntary manslaughter requires an intent to kill and that involuntary manslaughter is an unlawful killing without an intent to kill. Thus, the jury could not have been misled into believing that merely inadvertent conduct would suffice for voluntary manslaughter. Moreover, the evidence clearly showed that Thomas intentionally aimed and fired the gun at McCarty, and thus there was no question that the killing was intentional and that it occurred as the result of the joint operation of the requisite conduct and specific intent. Thus the failure to give such an instruction was harmless. (People v. Turner, Supra, 22 Cal.App.3d 174, 184, 99 Cal.Rptr. 186.)

The only real jury issue was whether appellants acted in self-defense. The jury resolved this issue against appellants. In returning a verdict of voluntary manslaughter, the jury returned the lowest possible degree of homicide which the evidence indicated, there being no evidence that would have supported an involuntary manslaughter verdict.

In addition, the court has, on its own motion, augmented the record with the transcript of counsel's summations and they make clear that both counsel equated 'criminal intent' with 'intent to kill,' making no argument whatsoever that general intent is equated with 'criminal intent' or that voluntary manslaughter requires only a general intent. Accordingly in light of the totality of the record, the court's modification of the instruction was harmless error (see People v. McManis (1972) 26 Cal.App.3d 608, 614--616, 102 Cal.Rptr. 889) and not prejudicial even should we apply the test laid down in Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

Further, the instruction given on brandishing a weapon (see Appendix 2), which equated criminal intent with 'general intent,' was specifically limited to 'the crime of brandishing a weapon.' It is inconceivable that the specific intent required in manslaughter could have reasonably been confused with this instruction. (People v. Hill (1967) 67 Cal.2d 105, 118--119, 60 Cal.Rptr. 234, 429 P.2d 586, cert. den. 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 607.)

Moreover, the record makes clear that the modification of CALJIC No. 2.02 (see Appendix 1) was at appellants' express request, and that CALJIC...