People v. Shannon
| Decision Date | 27 June 1996 |
| Docket Number | No. A069386,A069386 |
| Citation | 54 Cal.Rptr.2d 416,46 Cal.App.4th 1365 |
| Parties | , 96 Cal. Daily Op. Serv. 4847, 96 Daily Journal D.A.R. 7797 The PEOPLE, Plaintiff and Respondent, v. Brian Dennis SHANNON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Jeremy Friedlander, Deputy Attorney General, for plaintiff and respondent.
Riordan & Rosenthal, Dennis P. Riordan, San Francisco, Dylan L. Schaffer, Stanford, for defendant and appellant.
Appellant Brian Dennis Shannon was convicted by jury of second degree murder by use of a firearm (Pen.Code, §§ 187, subd. (a); 12022.5, former subd. (a)). 1 He seeks reversal based upon alleged error in the standard form instruction for voluntary manslaughter, CALJIC No. 8.40. He also claims the jury's verdict was the product of undue influence because of juror misconduct and ribbons worn by spectators in the courtroom. We affirm.
On the morning of October 17, 1993, at 8:06 a.m., appellant made a 911 call from his residence at 701 Palma in El Granada. A tape of the call was played for the jury. Appellant requested an ambulance. Upon prompting by the dispatcher, appellant stated that his girlfriend had been shot. When asked if she had shot herself, appellant replied, "No, I think I shot her actually ... the whole damn thing was an accident ... she was just sitting there and I ... she is gurgling and it's driving me crazy!"
When emergency personnel arrived, they found the victim, 24-year-old Kimberly Stack, appellant's girlfriend, laying on the living room floor. She suffered a single gunshot wound to the left temple. She was nude from the waist up and had numerous bruises on her face and upper body. Appellant was shirtless and had fresh scratches on his face and upper body. A .38 caliber revolver, along with numerous other firearms were located in the residence. Appellant identified a .38 caliber revolver, which had been modified to have a "hair trigger," as the murder weapon.
Subsequent laboratory testing revealed human tissue inside the barrel of the murder weapon, confirming that the victim's death was the product of a close contact gunshot wound to the left temple. It was determined that the fatal shot was fired, at most, only a fraction of an inch from the victim's head. There was semen in the victim's vaginal cavity, indicating recent sexual intercourse. Both appellant and the victim had cocaine and/or alcohol in their systems at the time of the murder. Several neighbors testified they heard loud arguing coming from the direction of appellant's residence on the night of the shooting.
The prosecution argued that appellant either intended to kill the victim or behaved with wanton disregard for human life by brandishing a gun that he knew was particularly dangerous. The defense argued the shooting was accidental.
The trial court instructed the jury on first and second degree murder and voluntary and involuntary manslaughter. The jury was also instructed on excusable accident, heat of passion, sudden quarrel and voluntary intoxication.
The jury returned its verdict of second degree murder, finding true the personal use allegation. Appellant was sentenced to 15 years to life for the murder with a consecutive four-year term for the gun use. In addition, appellant received a 16-month consecutive term for unlawfully possessing an assault weapon (§ 12280, subd. (b)), a charge to which he pled nolo contendere at the commencement of trial.
Appellant contends the trial court erred in failing to modify, sua sponte, the standard form instruction defining the intent required for voluntary manslaughter. Murder and manslaughter were distinguished for the jury in that murder requires malice while manslaughter does not. (CALJIC No. 8.50.) The court instructed the jury that manslaughter is of two types, voluntary and involuntary. (CALJIC No. 8.37.) The challenged instruction on voluntary manslaughter, as given to the jury, read as follows:
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.) The jury was also instructed that appellant could be found guilty of second degree murder if he had no intent to kill but nonetheless, acted deliberately with a conscious disregard for human life. (CALJIC No. 8.31).
The crux of appellant's argument is that because CALJIC No. 8.40 included the specific intent to kill as a necessary element of voluntary manslaughter, the instruction precluded the jury from considering whether appellant had acted upon a sudden quarrel or in the heat of passion while committing the act resulting in the victim's death if the jury believed only that appellant had acted in conscious disregard for life but not with the specific intent to kill. The net effect of the quoted instructions, appellant argues, is that the jury was precluded from considering the mitigating effects of provocation unless they found appellant acted with the express intent to kill. To wit, if the jury found appellant had not formed the express intent to kill but acted only in conscious disregard for human life, which establishes nothing more than implied malice, the mitigating effects of any provocation would be irrelevant, and the jury would be forced to find appellant guilty of second degree murder. Appellant contends that this is neither legally nor logically sound since the more blameworthy state of mind, i.e., express intent to kill, would result in a lesser punishment than that necessarily imposed for acts committed without an express intent and, consequently, a less culpable mental state. Appellant points out that this case raises a novel "issue regarding the adequacy of an instruction used in hundreds of cases throughout California courts."
The People emphasize that CALJIC No. 8.40, the standard voluntary manslaughter instruction, is patterned after language from long-standing California Supreme Court precedent. (People v. Hawkins (1995) 10 Cal.4th 920, 958-959, 42 Cal.Rptr.2d 636, 897 P.2d 574; see also People v. Brubaker (1959) 53 Cal.2d 37, 44, 346 P.2d 8; People v. Ray (1975) 14 Cal.3d 20, 28, 120 Cal.Rptr. 377, 533 P.2d 1017; People v. Forbs (1965) 62 Cal.2d 847, 852, 44 Cal.Rptr. 753, 402 P.2d 825.) Significantly, our Supreme Court has defined voluntary manslaughter as a specific intent crime requiring an intent to kill (People v. Gorshen (1959) 51 Cal.2d 716, 732-733, 336 P.2d 492, disapproved on another point in People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5, 149 Cal.Rptr. 265, 583 P.2d 1308). Despite appellant's invitation, we are not in a position to independently interpret the penal statute defining voluntary manslaughter (§ 192) to arrive at a different conclusion. (Auto Equity Sales, Inc. v. Superior...
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People v. Parras
...it had been held that the intent to kill was an essential element of voluntary manslaughter. (See, e.g., People v. Shannon (1996) 46 Cal.App.4th 1365, 1368-1369, 54 Cal. Rptr.2d 416.) In Blakeley and Lasko, however, our high court held to the contrary. Instead, voluntary manslaughter may al......
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People v. Parras
...it had been held that the intent to kill was an essential element of voluntary manslaughter. (See, e.g., People v. Shannon (1996) 46 Cal.App.4th 1365, 1368-1369, 54 Cal. Rptr.2d 416.) In Blakeley and Lasko, however, our high court held to the contrary. Instead, voluntary manslaughter may al......
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Shannon v. Newland
...of the California Supreme Court that included intent to kill as an element of voluntary manslaughter. See People v. Shannon, 46 Cal.App.4th 1365, 1370, 54 Cal.Rptr.2d 416 (1996). The California Supreme Court denied review on October 17, Because Shannon did not petition the U.S. Supreme Cour......