People v. Wright

• Decision Date: 13 July 1976
• Docket Number: Cr. 8217
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Curlie David WRIGHT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 311

131 Cal.Rptr. 311

60 Cal.App.3d 6

The PEOPLE of the State of California, Plaintiff and Respondent, v. Curlie David WRIGHT, Defendant and Appellant.

Cr. 8217.

Court of Appeal, Third District, California.

July 13, 1976.

Hearing Denied Oct. 6, 1976.

Carl B. Shapiro, San Anselmo, for defendant and appellant.

Evelle J. Younger, Atty. Gen. by Michael H. Fabian, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

FRIEDMAN, Acting Presiding Justice.

Defendant and his wife were charged with the murder of Leichen, their 29-month-old daughter. The jury acquitted the wife and found defendant guilty of involuntary manslaughter, a lesser included offense. Defendant appeals from the judgment.

Medical examinations during Leichen's lifetime, as well as a post-mortem, revealed a variety of external bruises and scars, skull fractures, rib fractures, a pelvic fracture and ruptures of the bowel and mesenteric sheath. Two ruptures of the small bowel had caused fatal peritonitis. In the opinion of medical experts the child had suffered numerous beatings and blows and was a victim of the battered child syndrome.

I

Initial issue is the propriety of a jury instruction defining involuntary manslaughter. The instructions defined second degree murder characterized by implied malice; described implied malice to include a killing resulting from commission of a felony inherently dangerous to human life; designated the crime defined by Penal Code section 273a, subdivision (1), as a felony inherently dangerous to human life; ¹ included a reading of section 273a, subdivision (1).

The court then gave the instruction upon which defendant's attack focuses. It had been extracted from CALJIC 8.45 (1972 Rev). As given to the jury it declared: 'Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill. A killing is unlawful within the meaning of this instruction if it occurred: During the commission of a misdemeanor which is Inherently dangerous to human life, namely, the offense of Section 273(a)(2) (273a(2)) of the Penal Code.' (Emphasis added.)

In an ensuing instruction the court read to the jury the substance of Penal Code section 273a, subdivision (2). (See fn. 1, supra.)

There were no instructions defining first degree murder, voluntary manslaughter or involuntary manslaughter committed through criminal negligence.

We sustain the assignment of error. A homicide resulting from the commission of a felony inherently dangerous to life (other than the six felonies resulting in first degree felony-murder) constitutes at least second degree murder. (People v. Ireland, 70 Cal.2d 522, 538, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Phillips, 64 Cal.2d 574, 582--586, 51 Cal.Rptr. 225, 414 P.2d 353.) When an unintended killing results from an unlawful act not amounting to a felony, the manslaughter statute ² comes into play. Settled judicial interpretation has tempered the statutory definition of involuntary manslaughter: when the killing results from an 'unlawful act, not amounting to a felony,' the crime is involuntary manslaughter only if the act is dangerous to human life or safety. (People v. Stuart, 47 Cal.2d 167, 173, 302 P.2d 5, 9.)

Penal Code section 273a punishes the acts generally classed as child abuse. The statute's pre-1965 version set out a unified, if compound, definition of the offense, which included acts endangering the child's 'life or limb.' A 1965 amendment cast the statute in its present form. (Fn. 1, supra.) Subdivision (1) describes and offense committed Under circumstances or conditions likely to produce great bodily harm or death and punishable by imprisonment in the state prison or a county jail. ³ Subdivision (2) describes an offense punishable as a misdemeanor, committed under circumstances Other than those likely to produce great bodily harm or death.

The crime described in Penal Code section 273a, subdivision (2), is Other than one which is likely to produce great bodily harm or death. Section 273a, subdivision (2), thus excludes child abuse which threatens great bodily harm or death. Although nice verbal distinctions are possible, there is no practical difference between a crime which is likely to produce great bodily harm or death and one inherently dangerous to life. Both involve criminal acts which, by their very nature, threaten death. In determining which crimes are inherently dangerous to human life, the courts look to the elements of the crime in the abstract, not the particular 'facts' of the case. (People v. Nichols, 3 Cal.3d 150, 163, 89 Cal.Rptr. 721, 474 P.2d 673.) The prime distinction between felony-murder and non-negligent involuntary manslaughter is this: the former results from a felony inherently dangerous to life, the latter from an unlawful act other than a felony (e.g., a misdemeanor) which is inherently dangerous to life. ⁴ By force of its express exclusionary clause, the misdemeanor described in section 273a, subdivision (2), is not one which is inherently dangerous to life. The trial court erred in instructing the jury otherwise. ⁵

Although erroneous, the instruction did not cause a miscarriage of justice and is not ground for reversal. (Cal.Const., art. VI, § 13.) A miscarriage of justice should be declared only when the reviewing court examines the entire record and finds a reasonable probability that a result more favorable to the appellant would have been reached in the absence of the error. (People v. Williams, 13 Cal.3d 559, 563, 119 Cal.Rptr. 210, 531 P.2d 778.) In this case the initial question for the jury was whether either defendant was the actor who caused the child's death. By its verdict the jury excluded the wife, identified defendant as the actor and found that his actions had been the proximate cause of death. Uncontradicted evidence established that the child had suffered a series of blows and beatings of sufficient force to cause fractured bones and severe damage to the internal organs.

Once the jury identified defendant as the agent of injury, the evidence pointed unerringly to his violation of Penal Code section 273a, subdivision (1), i.e., the infliction of injuries under circumstances likely to produce great bodily harm or death. That violation constituted a felony inherently dangerous to life. Once defendant was identified as the agent of death, the evidence fully establised his guilt of second degree felony-murder. (People v. Ireland, supra; People v. Phillips, supra; see also, People v. Steger, 16 Cal.3d 539, 553, 128 Cal.Rptr. 161, 546 P.2d 665.)

As we examine the record further, we find that the instructions proposed by the parties and given by the court offered the jury no options other than second degree murder, manslaughter and acquittal. After the jury identified defendant as the agent of death, there was no reasonable probability of acquittal. Whether the manslaughter verdict was an act of mercy or an expression of reluctance to return a second degree murder verdict for an unintentional killing, we do not know. Defendant at any rate was the beneficiary, not the victim, of the erroneous instruction.

II

Defendant assigns error in the trial court's failure to give a Sua sponte jury instruction making available a verdict of involuntary manslaughter of the criminal negligence variety. 'It is settled that in criminal cases, even when not requested, the court must instruct on the general principles of law relevant to the issues raised by the evidence. (Citations.) 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 for the jury's understanding of the case. (Citations.)' (People v. Wilson, 66 Cal.2d 749, 759, 59 Cal.Rptr. 156, 163, 427 P.2d 820, 827.)

The prosecution produced circumstantial evidence tending to prove that defendant or his wife or both had severely abused and beaten Leichen. Defendant and his wife took the stand. Both denied striking Leichen; each denied any belief that the other had abused or injured her; each vouchsafed the possibility of falls or other accidents and of rough treatment by her brother (who was 14 months older than Leichen). Three physicians took the stand; all diagnosed the events as an instance of the battered child syndrome and rejected accidental injury as a source of death. (See Landeros v. Flood, 17 Cla.3d ---, p. ---, 131 Cal.Rptr. 69, p. 73, 551 P.2d 389, p. 393.) The two defendants were represented by separate attorneys. There is no record that either attorney espoused a theory of manslaughter by negligence; neither offered an instruction defining that offense. ⁶

Penal Code section 192 (fn. 2, supra) describes involuntary manslaughter of the negligent variety as that which results from 'the commission of a lawful act which might produce death . . . without due caution and circumspection.' This statutory language describes the equivalent of criminal negligence; ordinary carelessness will not suffice; the negligence must be aggravated, culpable, gross or reckless, amounting to a disregard of human life or an indifference to consequences. (People v. Penny, 44 Cal.2d 861, 869, 285 P.2d 926.)

The evidence summarized above does not 'closely and openly' suggest that defendant was criminally negligent in his treatment of the child or in awareness of his wife's treatment of the child. (People v. Wilson, supra.) Rather, the only penal provisions 'closely and openly' evoked by the evidence were those covering deliberately inflicted violence. Possibly the evidence supported an inference of criminal negligence, warranting an instruction on negligent manslaughter had the defense requested one; that possibility did not trigger a Sua sponte duty of the trial judge to instruct on that crime. (See People v. Sedeno, 10 Cal.3d 703, 716--717, 112 Cal.Rptr. 1, 518 P.2d 913.)

Defendant seeks support in People v. Peabody, 46 Cal.App.3d 43, ...