People v. Lasko

• Decision Date: 02 June 2000
• Docket Number: No. S069354.,S069354.
• Citation: 96 Cal.Rptr.2d 441,999 P.2d 666,23 Cal.4th 101
• Parties: The PEOPLE, Plaintiff and Respondent, v. Louis LASKO, Jr., Defendant and Appellant.
• Court: California Supreme Court

96 Cal.Rptr.2d 441

23 Cal.4th 101

999 P.2d 666

The PEOPLE, Plaintiff and Respondent, v. Louis LASKO, Jr., Defendant and Appellant.

No. S069354.

Supreme Court of California.

June 2, 2000.

Rehearing Denied July 19, 2000.

Jonathan D. Soglin, Oakland, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald E. Niver, Bruce Ortega and Amy Haddix, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

Under California law, murder is the unlawful killing of a human being or a fetus, with malice aforethought. Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life. Malice is implied when the killer lacks an intent to kill but acts with conscious disregard for life, knowing such conduct endangers the life of another.

When a killer intentionally but unlawfully kills in a sudden quarrel or heat of passion, the killer lacks malice and is guilty only of voluntary manslaughter. We hold here that this is also true of a killer who, acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion.

I

Michael Medina and the victim, Don Fitzpatrick, owned a newspaper distribution business. Defendant Louis Lasko, Jr., one of their employees, lived in Fitzpatrick's home in San Jose. Fitzpatrick paid the employees in cash and customarily carried large sums of cash on his person. On September 15, 1994, Medina gave Fitzpatrick $2,820, and an additional $1,200 on September 21, 1994.

On the afternoon of September 27, 1994, five teenage boys — Michael Clark, Art Flores, David Gonzales, Nathan Gonzales, and Jason Reyes — were playing next door to Fitzpatrick's house when they heard someone moaning or screaming inside the house. The boys grabbed makeshift weapons (a tire iron, a bottle, a pool cue, and a board) and went to the door of the house. David Gonzales, the oldest boy and a neighbor of Fitzpatrick's, kicked the door and asked for Fitzpatrick. Defendant yelled through the door that Fitzpatrick was not home. Hearing moaning, Gonzales told defendant to leave Fitzpatrick alone. Defendant repeated that Fitzpatrick was not home and said he was killing a cat. Gonzales accused defendant of lying and told defendant that Gonzales's mother (who lived next door to Fitzpatrick) was calling the police.

When defendant opened the door briefly, Gonzales and Clark saw blood on the carpet behind defendant, and Reyes saw blood on defendant's shirt. Defendant closed the door. When he opened it again, he had a wad of money in his hand and he invited Gonzales in. Gonzales peered briefly into the house, which was very dark, and saw nothing.

When defendant could not get past Gonzales at the front door, he ran into the backyard and tried to climb a fence, but he stopped when Reyes and Flores started hitting him with a board and a pool cue. The boys allowed defendant to get some water from a nearby faucet, and Reyes saw him surreptitiously hide something on a shelf next to the faucet. Defendant remained in the yard, surrounded by the boys, until San Jose police officers arrived and arrested him. The officers found $1,791 in cash on the shelf.

Inside the house, the officers saw Fitzpatrick lying on the bathroom floor. His face was covered with blood, and he was unresponsive to questions. (He died 30 minutes later in a San Jose hospital.) A baseball bat was in the kitchen, partly covered by a canvas bag, and water was on the kitchen floor. Inside a trash can on a stairway was Fitzpatrick's bloodstained wallet, which contained no money. The wallet was hidden beneath crumpled papers that were wet with water and stained with blood.

Dr. Angelo Ozoa, Chief Medical Examiner for Santa Clara County, examined Fitzpatrick's body. He testified that there were scalded areas on Fitzpatrick's face and the front of his body, and that he died from multiple skull fractures caused by one or several blows from a blunt object.

Defendant testified in his own defense. He said that a week before the killing, Fitzpatrick had accused him of stealing his watch and fired him, but Fitzpatrick permitted him to remain in the house until the end of the year because Fitzpatrick owed him $300. Defendant claimed that on the afternoon of the killing, he was heating a pan of water on the stove when he and Fitzpatrick got into an argument about the money Fitzpatrick owed defendant. When Fitzpatrick hit defendant in the side with a baseball bat, defendant grabbed the pan of water he was heating and threw it at Fitzpatrick, scalding him. The hot water also scalded defendant's arm. Fitzpatrick again hit defendant with the bat, which defendant then took and used to hit Fitzpatrick in the head. Defendant did not intend to kill Fitzpatrick; he was only trying to protect himself. After Fitzpatrick collapsed on the floor, defendant dragged him to the bathroom. He picked up the telephone to call for help, but there was no dial tone. When he heard kicking on the front door, he went outside, where the boys surrounded him.

Defendant denied telling Gonzales he was killing a cat; what he said was that his cat had jumped in the window while carrying a dead mouse. He also denied telling Gonzales that Fitzpatrick was not home, denied trying to escape by climbing the back fence, denied taking money from Fitzpatrick and placing it on the shelf next to the faucet outside, and denied putting Fitzpatrick's wallet in the trash can on the stairway.

Photographs taken at the time of defendant's arrest showed a cut and bruises on his back, a bruise on his right abdomen, two bruises on his right arm, and a scrape or burn on his right forearm.

In rebuttal, Paul Von Tersh, who like defendant had been staying at Fitzpatrick's house, testified that defendant had threatened to kill Fitzpatrick about a month and a half before Fitzpatrick's death. A neighbor, Daniel Alarcon, testified that on several occasions before the killing defendant had expressed his hatred of Fitzpatrick, and one of Fitzpatrick's friends testified that twice in the month before Fitzpatrick's death he had heard defendant say he was going to "mess [Fitzpatrick] up." Two witnesses confirmed that Fitzpatrick's telephone was working on the day of the killing.

The trial court instructed the jury on the charged crime of murder. It also instructed the jury on the lesser included offense of voluntary manslaughter, both on the theory that the killing occurred intentionally during a sudden quarrel or in the heat of passion and on the theory that the killing occurred in an honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. The court also instructed the jury on the lesser included offense of involuntary manslaughter. The jury convicted defendant of second degree murder.

On appeal, defendant argued the trial court had erroneously instructed the jury that intent to kill was an essential element of the lesser included offense of voluntary manslaughter. This error, he contended, required the jury to convict him of murder if it found that he had killed Fitzpatrick in a sudden quarrel or heat of passion but without the intent to kill. The Court of Appeal noted that the rule that intent to kill is a necessary element of voluntary manslaughter had become "`deeply seated in the case law without thoughtful examination,' " as a result of "`the offhand misreading of People v. Freel (1874) 48 Cal. 436 , which only holds, correctly, that even if there were an intent to kill the offense could be manslaughter under the heat of passion doctrine.' " Nevertheless, the Court of Appeal concluded, it lacked the power to redefine the elements of voluntary manslaughter, because it was bound by decisions of this court that voluntary manslaughter requires an intent to kill. (See, e.g., People v. Hawkins (1995) 10 Cal.4th 920, 958-959, 42 Cal.Rptr.2d 636, 897 P.2d 574.)

II

As relevant here, the trial court gave the jury the standard instruction on the elements of voluntary manslaughter (CALJIC No. 8.40): "1. A human being was killed, [¶] 2. The killing was unlawful, and [11] 3. The killing was done with the intent to kill." (Italics added.)¹ Defendant argues that the instruction was improper because intent to kill is not a necessary element of voluntary manslaughter. We agree.

We begin our analysis by exploring the differences between murder and the lesser offense of manslaughter.

Murder is the unlawful killing of a human being with malice aforethought. (Pen.Code, § 187, subd. (a).)² Malice may be either express or implied. It is express when the defendant manifests "a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) It is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Ibid.) We have noted in the past that this definition of implied malice "has never proved of much assistance in defining the concept in concrete terms" (People v. Dellinger (1989) 49 Cal.3d 1212, 1217, 264 Cal.Rptr. 841, 783 P.2d 200), and that juries instead should be instructed that malice is implied "when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life" (id. at p. 1215, 264 Cal.Rptr. 841, 783 P.2d 200). For convenience, we shall refer to this mental state as "conscious disregard for life."

Manslaughter is "the unlawful killing of a human being without malice." (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter in "limited, explicitly defined...