People v. Rios

• Decision Date: 29 June 2000
• Docket Number: No. S055790.,S055790.
• Citation: 23 Cal.4th 450,2 P.3d 1066,97 Cal.Rptr.2d 512
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ricardo Ramirez RIOS, Defendant and Appellant.
• Court: California Supreme Court

97 Cal.Rptr.2d 512

23 Cal.4th 450

2 P.3d 1066

The PEOPLE, Plaintiff and Respondent, v. Ricardo Ramirez RIOS, Defendant and Appellant.

No. S055790.

Supreme Court of California.

June 29, 2000.

Jeffrey J. Stuetz, under appointment by the Supreme Court, and Waldemar D. Halka, San Diego, for Defendant and Appellant,

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez, Holly D. Wilkens, Keith I. Motley, William M. Wood and Sara Gros-Cloren, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

On retrial after a prior acquittal of murder, defendant was convicted of voluntary manslaughter for a homicide the jury found to be both unlawful (i.e., neither justified nor excused) and intentional. Defendant asserts, among other things, that the voluntary manslaughter instructions were prejudicially incomplete because they omitted the voluntary manslaughter "elements" that the killing must have occurred in a heat of passion upon sufficient provocation (hereafter heat of passion or provocation), or in the actual but unreasonable belief in the need for self-defense (hereafter imperfect self-defense). In effect, defendant urges that if the jury believed he committed an intentional, unlawful killing, without provocation or belief in the need to defend himself, it must acquit him of voluntary manslaughter.

We disagree. As we explain, neither heat of passion nor imperfect self-defense is an element of voluntary manslaughter that the People must affirmatively prove beyond reasonable doubt in order to obtain a conviction for that offense. Manslaughter is an unlawful killing without malice, the element necessary for the greater offense of murder. Malice may arise when one kills, without legal justification or excuse, and with specific lethal intent or conscious indifference to the likelihood of death. However, provocation and imperfect self-defense, though they do not justify or excuse an intentional or consciously indifferent homicide, mitigate the offense by negating the murder element of malice, and thus limit the crime to manslaughter. By statute and long-standing case law, an intentional but nonmalicious criminal homicide is voluntary manslaughter but no lesser offense.

Accordingly, where murder liability is at issue, evidence of heat of passion or imperfect self-defense bears on whether an intentional or consciously indifferent criminal homicide was malicious, and thus murder, or nonmalicious, and thus the lesser offense of voluntary manslaughter. In such cases, the People may have to prove the absence of provocation, or of any belief in the need for self-defense, in order to establish the malice element of murder.

But malice is not at issue upon a charge of voluntary manslaughter; indeed, a manslaughter charge concedes the absence of the murder element of malice. Hence, a conviction of voluntary manslaughter is supported by proof and findings, as here, that the homicide was unlawful and intentional. There is no additional need for the prosecution to establish that malice was lacking by reason of provocation or a belief in the need for self-defense.

The Court of Appeal was therefore correct in affirming defendant's voluntary manslaughter conviction against this challenge. No reason appears to address the remaining arguments raised by defendant, or to disturb the Court of Appeal's conclusion that these contentions also lack merit. We will therefore affirm the judgment of the Court of Appeal.

FACTS

Defendant's conviction arises from the fatal shooting of Anthony Reed on June 20, 1994. Defendant was originally charged with murder (Pen.Code, § 187, subd. (a)),¹ with personal use of a firearm (§ 12022.5, subd. (a)). Trial on the original information began in March 1995. On April 7, 1995, the jury found defendant not guilty of murder and deadlocked on voluntary manslaughter as a lesser included offense of murder. A mistrial was declared.

An amended information charged defendant with voluntary manslaughter (§ 192, subd. (a)), in that he `"willfully, unlawfully, and without malice" killed Reed. It was alleged that the offense was committed with personal use of a firearm. The amended information also charged assault with a semiautomatic firearm (§ 245, subd. (b)), with allegations of personal firearm use and great bodily injury (§ 12022.7, subd. (a)). Finally, the amended information charged involuntary manslaughter (§ 192, subd. (b)) on the misdemeanor-manslaughter theory of brandishing a firearm (§ 417, subd. (a)(2)). A personal-firearm-use allegation was attached to this charge as well.

Trial on the amended information, with a maximum charge of voluntary manslaughter, began in December 1995. There was no dispute that during a street argument, a handgun held by defendant discharged and killed Reed, who had hurled homosexual epithets at defendant and his friend. The issue was the exact circumstances in which the fatal wound was inflicted.

Melvin Mahone testified that on the evening of June 20, 1994, he and Reed were walking together on Lincoln Avenue in San Diego. Both men had been drinking.² They saw defendant and Steven Elliott next to a parked car. Reed and Mahone, who believed Elliott appeared homosexual, began shouting that they hated "fucking faggots." At first, defendant and Elliott ignored the taunts and walked toward defendant's residence. But the name-calling continued, and when defendant and Elliott reached defendant's front porch, defendant returned threats and insults. Defendant and Elliott then entered defendant's house, and Reed and Mahone walked away across the street. As they did so, defendant and Elliott reappeared, defendant with his hand behind his back. Defendant approached Reed and Mahone, who also walked toward defendant, and defendant and Reed began arguing at close range. Mahone saw Elliott, who was standing by a parked car, and insulted him again as Elliott entered the car and left. Defendant pulled a handgun from behind his back and held it at his side, pointed toward the ground. Reed told defendant, "You ain't going to do anything with that." In response, defendant raised the gun and fired a shot into the air, then pointed the weapon directly at Reed's face. Mahone backed up and told Reed they should leave, but Reed would not retreat. Reed threw his hands into the air and said, "Just pop me if you're going to pop me." Defendant then shot Reed in the right eye.

Several neighbors heard the confrontation and came outside. Sheldon Kochel could not see the street from his backyard, but he heard defendant, in a calm voice, tell others, who seemed enraged, to move on. After a pause, Kochel heard further vulgar threats and insults, apparently from Reed and Mahone, then two shots.

Loren Matthews and Sonia Garibay also emerged from their house. Reed and defendant were arguing chest-to-chest, with Mahone standing nearby. When defendant told Reed, "I am going to wipe the streets with your face," Reed put out his hands with his palms up; defendant then pulled out his gun and fired into the air. Though Mahone stepped back, Reed refused to retreat, and within seconds, defendant fired a second shot into Reed's face. Reed fell straight backwards.

Matthews had not seen Reed reach for defendant's gun, but according to Matthews, there was a lot of "arm motion going on," and he could not be sure Reed made no lunge. Garibay also did not see Reed grab for defendant's gun, but she admitted she had made statements to a 911 operator suggesting that her view was obstructed and that she heard, but did not see, the second shot.

Immediately after the shooting, defendant asked for someone to call 911, and Garibay did so. Meanwhile, defendant fled down an alley, where he met Michael Toscano, another neighbor. Defendant handed Toscano a handgun and asked Toscano to hide it. Police obtained the gun from Toscano the next day. It was a semiautomatic nine-millimeter pistol, compatible with the single nine-millimeter shell casing found at the shooting scene.

When recovered, the gun had an expended shell casing jammed in the chamber. During test-firings of the weapon, it was necessary after each shot to push the slide mechanism into position by hand before another round could be fired. Automatic safeties also prevented the gun from firing unless the trigger was pulled, and the effort required to pull the trigger was greater than normal.

A prosecution firearms expert testified that a gunshot wound to the brain generally causes the victim to fall in the direction he was leaning or moving at the moment the bullet struck. According to the expert, the position of Reed's body, lying on its back, was inconsistent with the theory that Reed was leaning or moving toward defendant when he was shot.

In his own behalf, defendant testified as follows: He carried a handgun for protection when outside at night, because crimes had been committed in the neighborhood. On June 20, 1994, Elliott was returning a stereo component. Just as Elliott and defendant finished moving the stereo unit from Elliott's car to a couch inside defendant's front door, defendant saw Reed and Mahone approach, and heard them utter homosexual slurs. Defendant told the two men, who appeared intoxicated, to leave, but Reed responded with a threat, and with his companion came into defendant's front yard. The group moved into the street, where Reed continued his verbal abuse, and Mahone shoved Elliott. Defendant again ordered Mahone and Reed to leave, but they came toward him, issuing vulgar insults and threats that included the words "pop" and "cap," which defendant understood to mean "kill." Defendant believed, based on their dress and language, that Reed and Mahone were gang members, and defendant suspected they were armed. Reed came face-to-face with defendant, and both Reed and Mahone made physical contact...