People v. Ray

Decision Date17 April 1975
Docket NumberCr. 18380
Citation533 P.2d 1017,14 Cal.3d 20,120 Cal.Rptr. 377
CourtCalifornia Supreme Court
Parties, 533 P.2d 1017 The PEOPLE, Plaintiff and Respondent, v. Homer Lawrence RAY, Jr., Defendant and Appellant.

James Jay Seltzer, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg and Jean M. Bordon, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Homer Lawrence Ray, Jr., appeals from a judgment upon a jury conviction of voluntary manslaughter (Pen.Code, § 192), a lesser included offense within that of murder (Pen.Code, § 187) as charged in the information. 1 Defendant contends that the trial court erred (1) in failing to instruct the jury, Sua sponte, that involuntarily induced unconsciousness was a complete defense of the charge and (2) in failing to give a requested instruction on involuntary manslaughter in the context of defendant's defense of diminished capacity based on voluntary intoxication. Although we reject defendant's first contention we conclude that the second is meritorious and that the judgment, accordingly, must be reversed.

About noon on February 16, 1973, a dispute developed between defendant and Mrs. Laverne Short when he demanded the repayment of $5 which he had loaned to her and she claimed that her son, Charles Bell, had earlier repaid the money. Defendant and Charles Bell, the victim herein, next became embroiled in the argument and began fighting in the street. Bell, wearing heavy rings on his fingers, struck defendant about the face and caused him to lose consciousness. There was also evidence that in addition to striking defendant with his fists Bell struck him with a wine bottle. As a result of the encounter defendant's face was swollen and he bled from a wound near the right temple.

After defendant regained consciousness, he was helped to his car and was heard to remark that he was going to his home to secure a gun. He drove his car in a normal manner and proceeded to and entered his home. After treating his wounds defendant returned to his car and, according to the testimony of several witnesses, drove about seeking Bell while making threats to take the latter's life.

Mrs. Short testified that she had been present when defendant stopped his car while conducting his search and stated his intention to her to kill Bell. She thereafter advised her son of defendant's threats. Approximately four hours after the first altercation defendant drove slowly by Mrs. Short's home and Bell ran out into the street carrying a bayonet. He managed to enter the driver's side of the front seat of the car, threatening defendant with the bayonet as the two struggled on the front seat. During this encounter defendant was wounded about the face and was unable to use a gun then in his possession when the bullets and firing pin fell from the weapon. Defendant succeeded in getting out of the vehicle where the struggle continued but shortly thereafter ended, apparently, at Bell's suggestion. The antagonists shook hands and Bell retrieved and returned the bullets to defendant. Defendant reloaded the gun, reinserted the firing pin and fired two shots into Bell's head. 2

Defendant and others testified that he had taken a number of 'reds' (secobarbital) during the day of the killing, and there was expert testimony to the effect that analysis of specimens taken from defendant on the day of the killing disclosed .15 milligrams percent of secobarbital in defendant's bloodstream. 3 According to the testimony of an expert witness such a drug level in conjunction with a concussion of the brain would result in difficulty in thought transmissions and in the formation of sound judgments. Several lay witnesses testified that defendant appeared dazed at the times of the encounters.

Defendant's contention that the court was required to instruct Sua sponte on the defense of unconsciousness fails because of a complete absence of factual support in the record. 'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (Citation.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary to the jury's understanding of the case.' (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 169, 463 P.2d 390, 393.) The duty to instruct Sua sponte on general principles closely and openly connected with the facts of a case includes an obligation to instruct on the defense of involuntary unconsciousness but only when it appears that the defendant is relying on that defense, 'or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 10, 518 P.2d 913, 921.)

Defendant did not rely on a defense of involuntary unconsciousness at trial and asserts it for the first time on appeal. When established, it is a complete defense to a criminal charge. (§ 26, subd. Five; People v. Conley (1966) 64 Cal.2d 310, 323--324, 49 Cal.Rptr. 815, 411 P.2d 911.) 'An unconscious act within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional. (Citation.)' (People v. Sedeno, supra, 10 Cal.3d 703, 717, 112 Cal.Rptr. 1, 10, 518 P.2d 913, 922.) Defendant relies on evidence that four hours before the killing he had been rendered unconscious as the result of a beating by the victim and that during the altercation immediately preceding the killing the victim inflicted other wounds which, according to defendant, when combined with his previous wound, rendered him unconscious.

Although defendant sustained a severe beating which left him unconscious following his initial confrontation with the victim, it taxes the imagination to give any credence to his contention that he remained unconscious during the following four hours and until the time he fired two bullets into the victim's head. The evidence is undisputed that defendant regained consciousness and drove his car away from the scene. Although there is substantial evidence that he thereafter armed himself and sought to locate Bell for the purpose of killing him, such evidence is disputed. But even defendant's own testimony does not support his claims of continuing unconsciousness. He stated that he remembered very clearly the events leading up to the shooting. He testified to the drugs ingested both before and after the first confrontation. He further related that after recovering from the beating he had driven his car to a market while a friend obtained groceries; that he next drove to the friend's home where defendant washed his face; that he thereafter drove to another market; that when he was driving past Mrs. Short's home Bell ran out in front of the car, opened the door and began to struggle with defendant. There is no testimony from any witness other than defendant which even suggests that defendant was performing such activities while in an unconscious state. Testimony that he appeared dazed at times is entirely consistent with expert opinion that drugs ingested by defendant produced an intoxication which, together with the blows to his head, could have caused defendant to be 'quite confused in a mental sense.' No expert, however, testified that following the first altercation defendant thereafter continued to function in an unconscious state as a result of his experiences.

There is likewise no merit to the claim that defendant was unconscious as the result of wounds received in the second confrontation immediately prior to the killing. Bell, according to defendant, succeeded in inflicting lacerations as the result of pressing a bayonet against defendant. Defendant described this encounter as a 'scuffle' during which he held off Bell's bayonet while Bell sought to twist defendant's gun from defendant's hand. No blows were struck and the scuffle ended when the bullets and the firing pin fell from defendant's gun and he slid out the passenger side of the car. Defendant described these events in sharp detail and he could not reasonably be deemed to have been rendered unconscious by these incidents. Defendant testified that the killing occurred after Bell had retrieved and returned the bullets to defendant who thereafter found and inserted the firing pin; that at such time Bell again threatened defendant with the bayonet just as he was about to depart; and that defendant removed his gun from his pocket and fired twice because he was afraid Bell would kill him. Police officers who were on the scene almost immediately after the killing found defendant to be functioning normally.

We conclude that an instruction on involuntary unconsciousness was not required to be given Sua sponte for the reason that defendant did not rely on that defense at trial and there was no 'substantial evidence supportive of such a defense.' (People v. Sedeno, supra, 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 10, 518 P.2d 913, 921.) It appears, moreover, that such an instruction was not required for the further reason that it would have been inconsistent with the complete defense asserted at trial by defendant that he had killed only in self-defense in response to Bell's threat to kill him. (Id.)

Notwithstanding the absence of substantial evidence to support defendant's claim of unconsciousness, the refusal of the trial court to instruct on involuntary manslaughter in the context of diminished capacity eliminated an opportunity for defendant to have been found guilty of a crime not more serious than involuntary...

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