People v. Thomas

• Decision Date: 27 August 1987
• Citation: 239 Cal.Rptr. 307,43 Cal.3d 818,740 P.2d 419
• Court: California Supreme Court
• Parties: , 740 P.2d 419 The PEOPLE, Plaintiff and Respondent, v. Paul E. THOMAS, Defendant and Appellant. Crim. 24471.

Page 307

239 Cal.Rptr. 307

43 Cal.3d 818, 740 P.2d 419

The PEOPLE, Plaintiff and Respondent, v. Paul E. THOMAS, Defendant and Appellant.

Crim. 24471.

Supreme Court of California In Bank.

Aug. 27, 1987.

As Modified on Denial of Rehearing, Oct. 22, 1987.

[740 P.2d 420] Randy Montesano, San Francisco, for defendant and appellant

John K. Van de Kamp, Atty. Gen., William D. Stein and Edward P. O'Brien, Asst. Attys. Gen. and Eugene W. Kaster, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ARGUELLES, Justice.

We granted a hearing in this case to decide whether defendant's conviction of involuntary manslaughter violated his due process right to fair notice of the charges against him. Since we conclude the accusatory pleading afforded him adequate notice, we affirm.

FACTS

One evening in 1981, Danita R. was at a nightclub with her friend Valerie. They accepted a ride home with a man named Joe and victim Tommy Myers. Danita R. was acquainted with Myers since he had previously dated her sister. After the foursome stopped at Valerie's house, Myers offered to drive Danita home and she accepted. Before taking her home, however, he drove to a hilly area and raped her. She did not report the incident to police, thinking police would not believe her story because she had voluntarily entered the van with Myers. However, she told her sisters about the rape.

Defendant arrived at Danita's home to pick up their daughter for the weekend. Although she did not tell him about the rape, he attended a family gathering on Sunday and overheard that Danita had been raped by a man named "Tommy." When he returned the child after the weekend, Danita mentioned the rape to defendant. When he asked her the identity of the perpetrator, she declined to reply but said she would "take care of it." Defendant thereafter fell asleep in the bedroom.

Later that evening, Myers arrived at Danita's home and demanded to know why she was telling people he had raped her. She first replied she had not told anyone and then said that in any case the claim of rape was true. Myers retorted "That's all right, you going [sic] get yours." Just then, defendant emerged from the bedroom and suggested they step outside so that they could "talk about it." According to defendant, Myers made a motion to raise his shirt. Both defendant and Danita testified they saw an outline of a gun under Myers's shirt. Defendant lunged at Myers and the two men struggled, first in the doorway, then on the porch, and finally on the lawn.

One shot was discharged into the air while the men struggled. A second shot was fired at close range and struck Myers in the stomach. A neighbor, Carl Douglas, testified he was awakened by the first shot and saw the men from his bedroom window. According to Douglas, the two men At trial, defendant claimed Myers was shot accidentally while the two men struggled with the gun and each other. He testified both men had their hands on the gun when it went off and that he did not release his hold on the gun because he believed Myers would have shot him. Defendant and his witnesses testified Myers was the aggressor and was the one who brought the gun to the apartment. No gun was found nor did any party explain what happened to the weapon. A friend who had been with Myers earlier in the day testified he had not seen a gun. Defendant conceded he had once owned a gun but had reported it stolen in 1977.

had ceased struggling and were standing and facing each other when the second and ultimately fatal shot was fired and the victim fell to the ground. Douglas did not see a gun nor who fired the shot although he did see a flash. Danita testified she saw the men struggling but went back into the apartment when the first shot was fired and as a consequence did not see the second shot. Shortly after the second shot, defendant reentered the apartment, retrieved his shoes and clothes and left the scene. A few days later, he consulted an attorney and turned himself in.

Both the prosecution and defense submitted instructions on voluntary and involuntary manslaughter. In conference in chambers, however, defense counsel withdrew his request for involuntary manslaughter instructions, believing "the case should be voluntary or nothing." Concerning the prosecution's request for an involuntary manslaughter instruction, defense counsel stated "I don't desire nor request an objection to giving of [an] involuntary manslaughter [instruction]. I do not object to the giving of it." The court ruled the involuntary manslaughter instructions should be given because it "is a theory of the People" and there was at least circumstantial evidence that defendant had brandished the gun after he gained possession of it.

The jury returned special verdicts finding defendant not guilty of voluntary manslaughter (former Pen.Code, ¹ § 192, subd. (1)) but guilty of involuntary manslaughter. (Former § 192, subd. (2).) ² They also found the charged gun-use enhancement true. (§ 12022.5.) On appeal, the judgment of conviction was affirmed by Division Three of the First District Court of Appeal.

DISCUSSION

We begin with the preeminent principle that one accused of a crime must be "informed of the nature and cause of the accusation." (U.S. Const., Amend. VI.) "It is fundamental that 'When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: "Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial." [Citation.]' (People v. West (1970) 3 Cal.3d 595, 612 [91 Cal.Rptr. 385, 477 P.2d 409] [citations].)" (People v. Lohbauer (1981) 29 Cal.3d 364, 368, 173 Cal.Rptr. 453, 627 P.2d 183; see also In re Robert G. (1982) 31 Cal.3d 437, 440, 182 Cal.Rptr. 644, 644 P.2d 837; People v. Anderson (1975) 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603; In re Hess (1955) 45 Cal.2d 171, 174-175, 288 P.2d 5; In re Oliver (1948) 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682.) "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." (Cole v. Arkansas (1948) 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644.)

At the time of the offense, section 192 provided as follows: "Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds." Section 192 then listed the different kinds of manslaughter: "(1) Voluntary--upon a sudden quarrel or heat of passion. [p] (2) Involuntary--in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle. [p] (3) In the driving of a vehicle ... [vehicular manslaughter]."

Defendant contends he was improperly convicted of involuntary manslaughter since the information specifically and exclusively charged him with voluntary manslaughter. Since he asserts involuntary manslaughter is not a necessarily lesser included crime of voluntary manslaughter, he claims his conviction cannot stand since it was for a crime not charged in the information. In response, the People counter that what is at issue is not whether involuntary manslaughter is a necessarily lesser included offense of voluntary manslaughter, but instead whether defendant was given sufficient notice that he could be convicted of involuntary manslaughter. Since the People contend the information made out a general charge of manslaughter rather than a specific charge of voluntary manslaughter only, they claim the defendant should have been on notice he faced a potential conviction of either type of manslaughter.

It has long been the law that a "charge of murder includes by implication a charge of the lesser degree of murder as well as voluntary and involuntary manslaughter." (Stone v. Superior Court (1982) 31 Cal.3d 503, 517, 183 Cal.Rptr. 647, 646 P.2d 809; see also In re McCartney (1966) 64 Cal.2d 830, 831, 51 Cal.Rptr. 894, 415 P.2d 782; People v. Gilmore (1854) 4 Cal. 376, 380.) A necessary corollary of this rule is that a charge of manslaughter, that is, an unlawful killing of a human being without malice, charges both voluntary and involuntary manslaughter. (People v. Pearne (1897) 118 Cal. 154, 157, 50 P. 376; see also People v. Herbert (1936) 6 Cal.2d 541, 547, 58 P.2d 909 [the manner in which an unlawful killing occurred need not be pleaded]; People v. Dobbs (1945) 70 Cal.App.2d 261, 265-266, 161 P.2d 46, superseded by statute on another point, People v. Alves (1957) 154 Cal.App.2d Supp. 877, 879, 315 P.2d 755; 17 Cal.Jur.3d (1984 rev. ed.) Criminal Law, § 327, pp. 480-481; but see People v. Edwards (1985) 39 Cal.3d 107, 116, fn. 10, 216 Cal.Rptr. 397, 702 P.2d 555 [suggesting involuntary manslaughter may not be included in a charge of second degree murder in all circumstances].)

The information in this case charged defendant with "the crime of felony, to wit: VIOLATION OF SECTION 192.1 OF THE CALIFORNIA PENAL CODE, committed as follows: The said defendant(s), ... did wilfully, unlawfully, and with/o[ut] malice aforethought kill TOMMY MYERS, a human being." (Capitals in original.) Since the information thus appears to charge an unlawful killing of a human being without malice, it follows a general charge of manslaughter is made out and defendant should have been on notice that he could be convicted of involuntary manslaughter.

Pearne, supra, 118 Cal. 154, 50 P. 376, is...