People v. Lee
| Decision Date | 04 March 1999 |
| Docket Number | No. S060352,S060352 |
| Citation | 971 P.2d 1001,20 Cal.4th 47,82 Cal.Rptr.2d 625 |
| Court | California Supreme Court |
| Parties | , 971 P.2d 1001, 99 Cal. Daily Op. Serv. 1644, 1999 Daily Journal D.A.R. 2094 The PEOPLE, Plaintiff and Respondent, v. Steven B. LEE, Defendant and Appellant |
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Doug MacMaster, Michael E. Banister and Catherine A. Rivlin, Deputy Attorneys General, for Plaintiff and Respondent.
The sole question presented in this case is whether the Court of Appeal erred in concluding that even though the evidence was sufficient to support a conviction of second degree murder (Pen.Code, § 187 1, defendant's conviction of voluntary manslaughter (§ 192, subd. (a)) must be reversed because evidence of provocation was insufficient.
The Court of Appeal held that defendant's request for a voluntary manslaughter instruction was not invited error which precluded his appellate claim. It also held that the evidence was not sufficient to establish that defendant acted under provocation by the victim and thus did not support a conviction of voluntary manslaughter. Finally the court held that, because the evidence warranted and the jury might have convicted defendant of involuntary manslaughter had an instruction on misdemeanor manslaughter (§ 192, subd. (b)) been given, the error in permitting the jury to return a voluntary manslaughter verdict was not favorable to defendant within the reasoning of People v. Powell (1949) 34 Cal.2d 196, 208 P.2d 974 (Powell ). The Court of Appeal therefore reversed the conviction with directions that a conviction of involuntary manslaughter be entered.
We conclude that the Court of Appeal erred in doing so. Both sides agree that the evidence was sufficient to support conviction of second degree murder. The verdict establishes that, in convicting defendant of voluntary manslaughter under the instructions it was given, the jury necessarily found all of the facts necessary to establish second degree murder even if the jury believed that malice was negated by heat of passion or In these circumstances Powell does apply. If there was error in instructing on voluntary manslaughter, that error was favorable to defendant, as was any error in returning a verdict of voluntary manslaughter. Defendant may not complain on appeal about errors favorable to him. 2
[971 P.2d 1003] intoxication. Although the trial court erred in failing to instruct on the misdemeanor manslaughter form of involuntary manslaughter, that error could not have prejudiced defendant because the involuntary manslaughter instructions that were given permitted conviction of that offense if the jury found only an unlawful, unintentional killing without malice.
We shall, therefore, reverse the judgment of the Court of Appeal.
The tragic events which led to this conviction occurred after defendant and the victim, his wife Mee Nor, hosted a Chinese New Year's party in their home on February 14, 1991. 3 Their two young daughters, Mary and Susan, two friends of daughter Mary, and Mary's teacher, Manuel Bella, were present. Defendant did not appear to harbor any anger toward his wife, but he drank heavily from a bottle of cognac he had purchased that day. The 750 milliliter bottle had not been opened until dinner time, but defendant had consumed half of the bottle before Bella arrived and the group sat down for dinner. Bella arrived at the Lee home at 6:30 p.m. At that time defendant appeared to be his usual self. Before they sat down to eat defendant had at least two glasses of cognac. As the food which defendant had prepared was ready, the group sat down for dinner within five to ten minutes of the time he arrived. The mood was happy and Bella observed no hostility between defendant and his wife.
Bella had only one small drink. Defendant drank throughout the evening. He became emotional and told Bella he had lost his job. He appeared depressed. As the evening progressed defendant became less coherent, his eyelids drooped, and he began to nod. He tried but was unable to stand and escort Bella to the door when Bella left shortly before the shooting. The cognac bottle was empty or almost empty at the end of dinner.
After Bella left, 12-year-old Mary saw her parents arguing and pushing each other. The couple argued almost daily, but on this occasion their voices were low and soft and Mary could not hear what they argued about. Defendant appeared different to Mary, as if he were "possessed by a spirit." He had a blank stare and was staggering.
Defendant went to the bedroom, staggering and falling against the wall, and returned two or three minutes later with his handgun, a .357 magnum Smith & Wesson. He pulled Mee Nor from the kitchen sink, where she was washing dishes, into the hallway, where the couple continued to push each other with the gun between them. Mary went back to her bedroom, heard her parents arguing, and then heard a shot. When she came out of her room, she saw her father holding Mee Nor who was lying on the floor, begging her not to die. The gun was on the floor. Mee Nor had died instantly from a contact or near contact gunshot to the head just above An expert testified that at the time of the shooting defendant's blood-alcohol level was between .33 and .39 percent. 4 At that level an individual has confusion, severe muscular incoordination, difficulty in walking and talking, and loss of critical judgment. It is a level of blood alcohol at which an individual can be approaching unconsciousness, a comatose state, or even death. A person who drank alcohol on a regular basis would have a greater tolerance than an inexperienced drinker and would be able to function in what appears to be a reasonably normal way. The level of impairment would be the same, however, in the regular drinker and nondrinker at the same blood-alcohol level.
[971 P.2d 1004] her eye. Defendant's eyeglasses and the empty cognac bottle were found on the dining table. Each had blood on them. At 2:20 a.m. on February 15, the day after the shooting, defendant had a blood-alcohol level of .26 percent.
Defendant was charged with murder. The information also alleged that in the commission of the offense he had used a firearm (§ 12022.5, subd. (a)) and that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(8). At the close of the evidence the jury was instructed on murder.
Both the prosecution and the defense requested instructions on voluntary manslaughter. The trial court instructed the jury that voluntary intoxication could negate any specific intent or mental element of murder or voluntary manslaughter. Subsequently, in defining voluntary manslaughter the court instructed that if malice was lacking an unlawful killing could be voluntary manslaughter even if the killing was intentional. The court then instructed that there was no malice if the killing occurred on sudden quarrel or heat of passion, going on to explain the provocation necessary to justify finding sudden quarrel or heat of passion. Three instructions told the jury intent to kill was an element of voluntary manslaughter.
The court then instructed that an unlawful killing without malice aforethought and without intent to kill was involuntary manslaughter. The court instructed that a killing was unlawful within the meaning of the instruction if committed during an ordinarily lawful act that posed a high risk of death or great bodily harm without due caution and circumspection, a criminal negligence theory of involuntary manslaughter. The court also instructed that a killing by a person who was unconscious as a result of voluntary intoxication was involuntary manslaughter. The court did not instruct on the "misdemeanor manslaughter" form of involuntary manslaughter, however. The omitted instruction, part of CALJIC No. 8.51, would have advised the jury that: "If a person causes another's death, while committing a misdemeanor or infraction which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter."
Defense counsel argued that if defendant killed his wife there was no malice. Therefore, the killing could only be manslaughter. She argued that the evidence showed at most the elements of involuntary manslaughter. She suggested that defendant was unconscious as a result of intoxication and, under the applicable law, his offense was involuntary manslaughter.
During deliberations the jury requested that the testimony of the defense expert on toxicology who had described the effects of intoxication be reread. The jury first returned a verdict of not guilty of first degree murder and reported itself unable to reach a unanimous verdict on second degree murder. The court then reread CALJIC No. 8.72: "If you are satisfied beyond a reasonable doubt that the killing was unlawful but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of such doubt and find it to be manslaughter rather than murder." After further jury inquiries regarding the meaning of "conscious disregard for human life and the instruction defining second degree murder," the jury returned verdicts of Defendant appealed.
[971 P.2d 1005] not guilty of second degree murder and guilty of voluntary manslaughter, also finding true the charge that defendant personally used a firearm in the commission of that offense.
On appeal defendant contended that there was insufficient evidence to support the verdict of voluntary manslaughter and that the trial court erred in failing to give complete instructions on involuntary manslaughter. In support of the first claim he...
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