People v. Lee

Decision Date16 July 1987
Citation738 P.2d 752,238 Cal.Rptr. 406,43 Cal.3d 666
CourtCalifornia Supreme Court
Parties, 738 P.2d 752 The PEOPLE, Plaintiff and Respondent, v. Charles Joseph LEE, Defendant and Appellant. Crim. 24961.
[738 P.2d 753] John K. Van de Kamp, Atty. Gen., Gary R. Hahn, Robert R. Anderson and Donald E. DeNicola, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent

Jay Ruskin, under appointment by the Supreme Court, San Anselmo, for defendant and appellant.

LUCAS, Chief Justice.

In this case, involving charges of attempted murder and robbery, the jury received contradictory, and partially inaccurate, instructions regarding the element of specific intent to kill required to sustain a verdict of attempted murder. We granted review to settle some uncertainties regarding the appropriate review standard to be used in determining whether such an error is prejudicial. As will appear, we conclude that the appropriate standard is the "harmless beyond a reasonable doubt" test for federal constitutional errors. (See Chapman v. California (1967) 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705.) Applying that test here, we also conclude beyond a reasonable doubt the jury would not have reached a more favorable verdict had it been properly instructed.

I. THE FACTS

The uncontradicted facts are as follows: Defendant approached Janice Banks, who was waiting in her car in a parking lot. He displayed a gun and ordered her to start the car and exit from it. Banks's purse remained on the car seat. Defendant drove the car away, but was eventually pursued by a patrol car driven by officers alerted by victim Banks. Officer Harris spotted the stolen car and activated his siren and red lights. In response, defendant accelerated to a high speed, driving through a red light. Nonetheless, the officer caught up with defendant, who eventually slowed down and jumped from the vehicle, running into a nearby apartment complex.

Officers Crenshaw and Yaden, patrolling the area, observed defendant carrying a woman's purse and being pursued by Officer Harris. The two officers stopped their own patrol car, ran after defendant and ordered him to stop. Defendant stopped 15 to 20 feet from the officers, turned toward them and fired his weapon in their direction. The shot missed and his gun jammed before any other shots could be discharged. Defendant was apprehended and charged with attempted murder and robbery.

Among other instructions, the trial court correctly instructed the jury that in each of the crimes charged "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists the crime to which it relates is not committed.... The crime of attempted murder requires the specific intent to unlawfully kill a human being. ..." (CALJIC No. 3.31, italics added.) The jury was further instructed that "The intent with which an act is done is shown ... by the circumstances attending the act, the manner in which it is done, the means used, and the soundness of mind and discretion of the person committing the act." (CALJIC No. 3.34.)

In addition, the jury was told that the crime of attempted murder requires that defendant possess the mental state of "malice aforethought" (CALJIC No. 3.31.5), and that "The crime of attempt [sic ] murder is the unlawful attempted killing of a human being with malice aforethought" (CALJIC No. 8.10, as modified by the court). The problem at issue here arose when the trial court gave additional instructions defining "malice" in such a manner as to permit dispensing with an actual specific intent to kill.

Thus, the court instructed the jury that "Malice may be implied when the attempt [sic ] killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life. When it is shown that an attempt [sic ] killing resulted from the intentional doing of an act with implied malice, no other mental state need be shown to establish the mental state of malice aforethought...." (CALJIC No. 8.11, as modified, italics added.) Finally, the jury was told that "Attempt [sic] murder is the unlawful attempt [sic ] killing of a human being as the direct causal result of an intentional act involving a high degree of probability that it will result in death.... When the attempt [sic ] killing is the direct result of such an intentional act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being." (CALJIC No. 8.31, as modified, italics added.)

The jury convicted defendant of attempted murder and robbery, and the Court of Appeal affirmed the conviction. As will appear, we conclude that the Court of Appeal's decision should be affirmed.

II. DISCUSSION
A. Instructional Error

It is now well established that a specific intent to kill is a requisite element of attempted murder, and that mere implied malice is an insufficient basis on which to sustain such a charge. Accordingly, implied malice instructions should never be given in relation to an attempted murder charge. (See People v. Ratliff (1986) 41 Cal.3d 675, 695-696, 224 Cal.Rptr. 705, 715 P.2d 665; People v. Guerra (1985) 40 Cal.3d 377, 386-387, 220 Cal.Rptr. 374, 708 P.2d 1252; People v. Ramos (1982) 30 Cal.3d 553, 583-584, 180 Cal.Rptr. 266, 639 P.2d 908; People v. Johnson (1981) 30 Cal.3d 444, 447-449, 179 Cal.Rptr. 209, 637 P.2d 676 [assault with intent to murder]; People v. Collie (1981) 30 Cal.3d 43, 61-62, 177 Cal.Rptr. 458, 634 P.2d 534; People v. Murtishaw (1981) 29 Cal.3d 733, 762-765, 175 Cal.Rptr. 738, 631 P.2d 446 [assault with intent to murder].)

As stated in a recent appellate decision applying the foregoing rule, "as to the crime of attempt to commit murder, where a specific intent to kill is absolutely required, reliance upon any definition of murder based upon implied malice is logically impossible, for implied malice cannot coexist with express malice. With this fundamental concept to be reckoned with, instructions on the crime of attempt to commit murder, necessarily, when they define the underlying crime of murder, must be limited only to that kind of murder where a specific intent to kill or, in other words, express malice, is one of the elements." (People v. Santascoy (1984) 153 Cal.App.3d 909, 914, 200 Cal.Rptr. 709; see also People v. Bounds (1985) 171 Cal.App.3d In the present case, as the People concede, the Court of Appeal correctly held that the trial court erred in giving conflicting instructions on the issue of specific intent to kill as it related to an attempted murder charge. One instruction (CALJIC No. 3.31) properly explained that "attempted murder requires the specific intent to unlawfully kill," while another instruction (CALJIC No. 8.31, as modified by the court) gave the opposite impression and incorrectly stated that if the attempted killing resulted from an intentional act done with implied malice, "it is not necessary to establish that the defendant intended that his act would result in ... death...."

802, 806-808, 217 Cal.Rptr. 718; People v. Acero (1984) 161 Cal.App.3d 217, 229, 208 Cal.Rptr. 565; People v. Bottger (1983) 142 Cal.App.3d 974, 980, 191 Cal.Rptr. 408 [solicitation of murder].)

B. Standard of Prejudicial Error

Having concluded that error was committed in giving these conflicting instructions, we now turn to the principal issue in this case, namely, the proper standard for ascertaining whether or not the error was prejudicial. The cases have reached a variety of conflicting conclusions on this subject.

1. Applicable cases. We originally applied the Watson test (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243) in cases involving similar errors. (See People v. Murtishaw, supra, 29 Cal.3d at p. 765, 175 Cal.Rptr. 738, 631 P.2d 446; People v. Johnson, supra, 30 Cal.3d at pp. 448-449, 179 Cal.Rptr. 209, 637 P.2d 676; People v. Ramos, supra, 30 Cal.3d at p. 584, 180 Cal.Rptr. 266, 639 P.2d 908.) Two subsequent cases reversed judgments without discussing the applicable standard, but suggested that reversal may be required whenever an appellate court is unable to determine whether or not the jury properly found a specific intent to kill, rather than mere implied malice. (See People v. Guerra, supra, 40 Cal.3d 377, 386, 220 Cal.Rptr. 374, 708 P.2d 1252; People v. Collie, supra, 30 Cal.3d 43, 62, 177 Cal.Rptr. 458, 634 P.2d 534.)

Finally, in People v. Ratliff, supra, 41 Cal.3d at pages 695-696, 224 Cal.Rptr. 705, 715 P.2d 665, a case in which no specific-intent-to-kill instruction was given, we recognized that some uncertainty had arisen regarding the appropriate test, but concluded that, regardless of which standard was used, the error was reversible under the circumstances presented in that case.

The uncertainty we discerned in Ratliff derived in part from appellate decisions which had considered the possibility that the giving of conflicting or inadequate instructions regarding intent to kill, in the context of an attempted murder charge, may constitute federal constitutional error requiring an elevated standard of evaluating the harmlessness of the error. (See People v. Bounds, supra, 171 Cal.App.3d at pp. 807-810, 217 Cal.Rptr. 718; People v. Acero, supra, 161 Cal.App.3d at p. 229, 208 Cal.Rptr. 565.) The Court of Appeal in the present case (the same panel which decided Bounds ) took the same approach, concluding, however, that the error was harmless under the federal Chapman standard. (See Chapman v. California, supra, 386 U.S. 18, 21, 87 S.Ct. 824, 826.)

In Acero, supra, 161 Cal.App.3d 217, 208 Cal.Rptr. 565, defendant and a codefendant were charged with attempted murder and other offenses; defendant was convicted on an aiding and abetting theory, but the jury was never told that an aider and abettor must also share the...

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  • § 27.05 Mens Rea of Criminal Attempts
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2022 Title Chapter 27 Attempt
    • Invalid date
    ...504, 506 (Va. 1922) (shooting into a tent without the specific intent to kill anyone does not constitute attempted murder); People v. Lee, 738 P.2d 752, 754 (Cal. 1987) (specific intent to kill is a required element of attempted murder; lesser forms of malice are insufficient); State v. Fos......
  • § 27.05 MENS REA OF CRIMINAL ATTEMPTS
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Chapter 27 Attempt
    • Invalid date
    ...504, 506 (Va. 1922) (shooting into a tent without the specific intent to kill anyone does not constitute attempted murder); People v. Lee, 738 P.2d 752, 754 (Cal. 1987) (specific intent to kill is a required element of attempted murder; lesser forms of malice are insufficient); Commonwealth......
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    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Table of Cases
    • Invalid date
    ...Leaphart, State v., 673 S.W.2d 870 (Tenn. Crim. App. 1983), 231 LeClair, Commonwealth v., 840 N.E.2d 510 (Mass. 2006), 504 Lee, People v., 738 P.2d 752 (Cal. 1987), 367 Leidholm, State v., 334 N.W.2d 811 (N.D. 1983) , 198, 227, 230, 231 Leland v. Oregon, 343 U.S. 790 (1952), 322 Leno, Commo......

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