People v. Saille, F011046

CourtCalifornia Court of Appeals
Writing for the CourtVARTABEDIAN
Citation229 Cal.App.3d 1376,270 Cal.Rptr. 502
PartiesPreviously published at 229 Cal.App.3d 1376 229 Cal.App.3d 1376 The PEOPLE, Plaintiff and Respondent, v. Manuel De Jesus SAILLE, Defendant and Appellant.
Docket NumberNo. F011046,F011046
Decision Date14 June 1990

[229 Cal.App.3d 1379] Richard L. Phillips and Bradley A. Bristow, under appointment by the Court of Appeal, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Jane N. Kirkland and Janet Neeley Kvarme, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

VARTABEDIAN, Associate Justice.

Is voluntary intoxication available under current California law as an avenue to reduce murder to voluntary manslaughter? The answer to this question is critical to our determination of a number of the issues presented in the instant appeal. Based upon our discussion that follows, we respond, no.

Defendant Manuel De Jesus Saille was convicted following a jury trial of the first degree murder (Pen.Code, § 187) 1 of Guadalupe Borba and the attempted murder of David Ballagh (§§ 664/187). In addition, it was found defendant used a firearm during the commission of each crime. (§ 12022.5.)

In early 1986, defendant was originally tried for these crimes with the same resulting convictions and findings as occurred here. The convictions were reversed by our court (F007458) based on Wheeler (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) error. Defendant's retrial, after that opinion, is the subject of this appeal. As had happened in 1986, the jury did not specify the degree of the attempted murder. Defendant appeals, raising numerous issues. The published portions of our opinion consider defendant's claims of instructional errors concerning voluntary intoxication and malice, and the impact of the unspecified degree of attempted murder. We affirm, except to require the attempted murder conviction to be of the second degree.


Defendant began drinking at a friend's house on November 30, 1985, at approximately 10 to 11 a.m. Between that time and 6 or 7 p.m. that evening he consumed 15 to 18 beers. At approximately 7 p.m. he went to LaRosa [229 Cal.App.3d 1380] De Oro, a bar, and consumed three or four more beers. On the same evening, David Ballagh, a licensed security guard, was employed to work at Eva's Cafe from 8 p.m. to 2 a.m. Bobbie Mendez was working as the bartender.

At approximately 9 to 9:30 p.m. defendant came into Eva's Cafe. He was walking erratically and his speech was slurred. Mendez looked at Ballagh and shook her head. Ballagh approached defendant and told him he could not drink there because he appeared intoxicated. Ballagh asked him to leave and walked him to the door. Defendant left. Defendant returned to Eva's Cafe between 10 and 11 p.m. Ballagh stopped him and reminded him he could not come in. Defendant turned around and left. Defendant again returned around 11 p.m. Ballagh told him to move outside and leave. Defendant reached in his pocket and pointed a wad of money at Ballagh and then toward the door. Ballagh told him to put the money back in his pocket and go home. After defendant began to leave he turned and said to Ballagh, "I'm going to get a gun and kill you." After this occurred, Ballagh went inside Eva's Cafe and expressed concern to Mendez about the situation.

Defendant returned to his home at approximately 1 a.m., December 1. His live-in companion, Manuela Sandoval, was there. She saw defendant go into the bathroom and stand there for about 10 minutes. Defendant had his rifle with him when he left. At trial, Sandoval was impeached with her prior testimony that defendant said he was going to kill someone.

Defendant returned to the bar at 1:30 a.m., for the first time entering through the back door. Ballagh went to the back door. Defendant stepped inside and said, "I told you I would be back." Ballagh saw that defendant had a rifle; he lunged at him and tried to grab it. The weapon discharged, killing Guadalupe Borba. The struggle continued outside the bar. Defendant and Ballagh were shot during the struggle over the weapon. Ballagh finally got control of defendant and the weapon. Defendant said, "I came to do what I wanted to" and gave up the weapon.


Manuela Sandoval testified that she was threatened by the district attorney at the preliminary hearing to repeat her story that defendant said he was going to kill someone or they would put her in jail and take her children away.

Teresa Garibaldi saw defendant drinking at LaRosa De Oro the evening of November 30, 1985. He had a big bottle with him and was drunk. [229 Cal.App.3d 1381] Seferino Bojorquez testified that defendant was totally drunk that night. He also testified that the victim, Borba, was also engaged in the struggle for the weapon. Juan Carpio saw defendant at approximately 11:30 p.m. outside Eva's Cafe, and he was very drunk.

Maria Torres, the owner of LaRosa De Oro, saw defendant at her bar the evening of November 30. He had a few beers but he was "not drunk at all." Defendant was not normal, but he was walking around and not stumbling.

Dr. Philip Morton Hamm, a licensed psychologist, testified regarding the effects of consuming alcohol. He testified that a person consuming large quantities of alcohol would not be able to form a rational judgment. A person could form an intent but it would not be rationally formed.


Dr. Richard Lynd, a criminalist, analyzed defendant's blood sample taken at 3:31 a.m. December 1, 1985. The blood alcohol level was .14 and would have been .19 at 1 a.m. Lynd testified that he had done studies on the effects of alcohol on people, particularly in the area of drunk driving. He had studied the effect of alcohol consumption on driving skills and mental functions. He testified that a person's mental functioning with a .19 blood alcohol level would not be as sharp as normal.


I. Did the court have a sua sponte duty to instruct that as to each level of the crime, homicide could be reduced if due to voluntary intoxication the defendant lacked the appropriate mental state?

The jurors were instructed that they could consider defendant's state of intoxication in determining if he had "the specific intent to kill." (CALJIC No. 4.21 (1981 rev.) (4th ed. pocket pt.).)

The trial court read CALJIC No. 8.10 (1983 rev.) (4th ed. pocket pt.) as follows:

"Defendant is charged in Count I of the information with the commission of the crime of murder, a violation of Section 187 of the Penal Code.

"The crime of murder is the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life.

[229 Cal.App.3d 1382] "In order to prove the commission of the crime of murder, each of the following elements must be proved:

"1. That a human being was killed,

"2. That the killing was unlawful, and

"3. That the killing was done with

malice aforethought." 2

Next the jurors heard CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.) as follows:

" 'Malice' may be either express or implied.

"Malice is express when there is manifested an intention unlawfully to kill a human being.

"Malice is implied when the 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 a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.

"The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.

" 'Aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act."

Express malice, which must be found to constitute murder of the first degree, was then defined as where "the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation." (CALJIC No. 8.20 (4th ed. 1979 bound vol.).)

The court instructed the jury that manslaughter is "the unlawful killing of a human being without malice aforethought" and is of two types, voluntary and involuntary. (CALJIC No. 8.37 (4th ed. 1979 bound vol.).) Voluntary manslaughter was defined as the "unlawful killing of a human being [229 Cal.App.3d 1383] without malice aforethought." (CALJIC No. 8.40 (1979 rerev.) (4th ed. pocket pt.).) The jury was told that for the homicide to be voluntary manslaughter it must be proved "[t]hat the killing was done with the intent to kill." (CALJIC No. 8.40.) The instructions also informed the jury that there is no malice if the killing occurred upon a sudden quarrel or heat of passion; even if an intent to kill existed, the offense is manslaughter if the act causing death was done under the heat of passion. (CALJIC No. 8.40.) Murder and manslaughter were distinguished in that murder requires malice while manslaughter does not. (CALJIC No. 8.50 (1983 rev.) (4th ed. pocket pt.).) Involuntary manslaughter was defined as "the unlawful killing of a human being without malice aforethought and without an intent to kill." (CALJIC No. 8.45 (1980 rev.) (4th ed. pocket pt.).)

Defendant contends that the instructions were lacking because they did not relate the theory that defendant could have possessed the intent to kill but not have formed the mental state of malice because of...

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1 cases
  • People v. Saille
    • United States
    • United States State Supreme Court (California)
    • October 11, 1990

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