P. v. Harris
Filed 1/28/13 P. v. Harris CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MIKEL
HARRIS,
Defendant and Appellant.
A131757
(San
Francisco City
& County
Super. Ct. No. 209338)
INTRODUCTION
On
May 8, 2009, defendant Mikel
Harris fatally stabbed Andre Fluker in the chest during an altercation in
defendant’s room at the Dalt Hotel in San Francisco’s
Tenderloin neighborhood. Defendant was
charged with second degree murder, but a jury acquitted him of that charge and
manslaughter. A second jury convicted
defendant of voluntary manslaughter. On
appeal, defendant asserts collateral estoppel foreclosed retrial on the theory
that defendant killed with a subjective awareness of, and conscious disregard
for, the risk of death, and the trial court misinstructed the jury on
misfortune. He also argues the trial
court erroneously denied his new trial motion based on the prosecutor’s failure
to timely disclose impeaching evidence relevant to the credibility of a
prosecution rebuttal witness. After
careful review of the case, we affirm.
STATEMENT OF THE CASE
Defendant
Mikel Harris was originally charged by information with the willful, deliberate
and premeditated murder of Andre Fluker.
(Pen. Code, § 187, subd. (a).)
personally used a knife in the commission of the offense. (§12022, subd. (b)(1).) Prior to trial, the prosecutor withdrew the
first degree murder allegations and defendant was tried on second degree murder
only. A jury acquitted defendant of
second degree murder, and the lesser included offense of involuntary
manslaughter. (§ 192, subd.
(b).) It was unable to agree on the
lesser included offense of voluntary manslaughter. (§ 192, subd. (a).)
The
district attorney subsequently filed an amended information charging defendant
with voluntary manslaughter and personal use of a knife. The second jury found defendant guilty as
charged. The trial court sentenced
defendant to a total term of seven years.
Defendant timely appeals.
STATEMENT OF FACTS
The
Dalt Hotel is a six-story, 175-room residential hotel located at 34 Turk Street
in San Francisco. On May 8, 2009, Niev
Khabeiry was working as the day shift desk clerk. It was his job to sign visitors in and out,
keep the daily sign-in sheet and other documents up to date, and screen people.
Sometime between 12:45 p.m. and 1:00
p.m. defendant, who lived on the sixth floor in room 647, called Khabeiry at
the front desk. He was mumbling
something to the effect of “Why is Andre here?â€
He sounded drunk and was “sort of ranting.†After defendant hung up, Mr. Khabeiry
determined from the sign-in sheet that no one had signed into defendant’s room
and he went to the sixth floor to investigate further. As he approached room 647, Mr. Khabeiry saw
that Andre Fluker was in defendant’s room, gathering his clothes and personal
belongings. Defendant was sitting on his
bed with a pair of scissors in his hand.
Defendant and Fluker were “having sort of an argument.†Defendant called Fluker “a broke, homeless,
‘N’ wordâ€; defendant sounded angry or upset.
Upon leaving the room, Fluker said, “Fuck you. I’m going into a program and get my life
together.â€
Mr.
Khabeiry informed Fluker that he was there to escort Fluker out of the building
and that he had to come with Khabeiry.
Fluker offered no resistance, and the two men started to leave the back
hallway on the sixth floor towards the main hallway and the elevators, with
Fluker walking behind Khabeiry.
At
some point in the main hallway, Khabeiry realized Fluker was no longer behind
him. Khabeiry turned to go back to
defendant’s room, and he heard the sound of scuffling, as if two people were
engaged in an altercation. As Khabeiry
turned the corner into the back hallway, Fluker, who had been stumbling towards
him, fell face down on the floor in front of him. Khabeiry called his boss downstairs and asked
her to call 911.
Mr.
Khabeiry stayed with Fluker. The door to
defendant’s room was shut. Then
defendant came out of his room and walked fast past Khabeiry, with a can of
beer in his hand, heading towards the elevators in the main hallway. Defendant did not stop to see how Fluker was
doing or to explain what had just happened.
Khabeiry could hear the sound of the garbage chute opening and closing. Paramedics soon arrived.
Shortly
after 3:00 p.m. on May 8, a police officer saw defendant walking on Jones
Street across the street from the Tenderloin police station. Since he matched the description of the
homicide suspect, the officer detained him and took him into the station. Defendant appeared to be under the influence
of something.
Andre
Fluker was 41 years old, 5 feet 10 inches tall and weighed 206 pounds. Cocaine was found in his urine.
The
cause of Andre Fluker’s death was a stab wound to the chest, penetrating the
sternum, and going through the aorta to the soft tissue between the aorta and
the spinal column. There were no knife
marks on the spinal column. The knife
essentially went straight in, at a 90-degree angle. The injury was consistent with being stabbed
with a kitchen knife, but not with scissors.
Defendant
gave a Mirandized
statement to San Francisco Police Department homicide detectives Michael
Johnson and Maureen D’Amico starting at 5:00 or 6:00 in the evening of May 8 at
the Hall of Justice.
name="_ftnref5" title="">[5] He said that Andre Fluker had shown up at his
door unannounced. Fluker was angry,
although defendant did not know why.
Fluker said he wanted to smoke some crack. Defendant knew “[h]e was up to sneakery. He was up to no good. . . . [¶] But he was very intimidating. . .
.†Fluker was “big†and “well builtâ€
while defendant was “very, very slim.â€
Defendant
didn’t know how Fluker had gotten into the building. Visitors are supposed to go to the front desk
and show their California I.D., but Fluker didn’t have a California I.D. Defendant assumed Fluker “snuck in the
building.†He called the desk clerk for
assistance in getting Fluker to leave. Fluker
said, “[D]on’t call downstairs . . . [b]ecause I don’t want to be on the 86
list.†Defendant had been storing some
of Fluker’s belongings in his room. When
Fluker came in, he was very rude, and defendant told Fluker, “Just take all
your stuff and go.†Instead, Fluker
slapped defendant in the face.
At
this point, the desk clerk showed up and escorted Fluker out, but Fluker
returned and shoved defendant in the chest.
At the time, defendant was “cutting on some garlic†with a knife. Fluker “slapped the phone out of my hand, in
my face.†He slapped defendant “a second
time and I had the knife and he slapped the knife out of his . . .
and I just grabbed it I know what I did, I did.†“My reaction was [unintelligible] . . . I, I
. . . cut him.†“It just went
a reflex.†Defendant did not know where
the knife landed or what part of Fluker’s body was cut. Afterwards, he “got up,†left, and shut his
door. He put on mismatched tennis
shoes. Fluker was standing outside
defendant’s door. Defendant left the
building to get some air. The next thing
he knew, there were “tons of police and . . . paramedics.†He did not know what he did with the knife,
and did not remember throwing it in the garbage chute, but admitted that he
probably did so.
Defendant
had known Fluker for a year or two.
Defendant had been homeless before and was trying to help Fluker
out. He would visit Fluker and put money
on his books when he was in jail. He let
Fluker stay in his room, but Fluker would eat up all his food. Defendant had taken in Fluker’s personal
belongings and contacted Fluker’s mother while Fluker was in jail. But Fluker had been out of jail for two
weeks, and defendant was feeling Fluker was taking advantage of him. “I really wanted him to get his shit and get
out. You know, into a drug program.â€
Defendant
had never before argued with Fluker or had a disagreement with him. This was the first time that Fluker had ever
been violent with him. Fluker “was
really nice. He was [unintelligible]. We was like brothers.†It was out of character for Fluker to act the
way he had that day.
That
day, defendant commenced drinking Olde English beers at 3:00 a.m. and had drunk
three or four 24-ounce cans of them by 10:00 a.m. He had not drunk anything more between 10:00
a.m. and the altercation. Twice defendant
stated, “I wasn’t drunk.†“He just made
me mad.†Although defendant was
prescribed several prescription antipsychotic drugs, he did not take them that
day because he was drinking.
He
expressed surprise when the police told him Fluker had died and was upset at
the news. He did not intend to kill
Fluker.
Officers
who searched defendant’s room found two kitchen knives on the floor in the
room, but no garlic or cutting board.
Three more knives were found in various places. A knife with a six and one-half inch blade
and reddish stains was recovered from the garbage area in the basement. The blood on the knife matched Fluker’s
genetic profile. Fluker’s DNA was also
found in the swabs of blood taken from the scene of the crime.
It
was stipulated at trial that “[a] preliminary alcohol screening device was
administered to [defendant] on May 8, 2009, at 15:41 hours [i.e., 3:41 p.m.]
and the result[] . . . was that it was .259.â€
A blood test administered at 5:48 p.m. showed defendant had a
blood-alcohol level of .21. Blood tests
for “common drugs of abuse†(amphetamines, barbiturates, benzodiazepines,
cannabinoids, cocaine, methadone, opiates, and PCP) were negative. An expert opined that if a 160-pound
African-American male with an average elimination rate drank four 24-ounce cans
of Olde English beer between 3:00 a.m. and 10:00 a.m., his blood-alcohol level
at 1:00 p.m. would be .13. However, a
chronic alcoholic with an elevated elimination rated would have a blood-alcohol
level of zero. To have attained a
blood-alcohol level of .25 at 3:41 p.m. and .21 at 5:48 p.m., that individual
would have had to consume alcohol after 1:00 p.m. However, if a chronically alcoholic
African-American man weighing 160 pounds with those blood-alcohol levels at
3:41 and 5:45 p.m. had stopped drinking at 12 noon, his blood-alcohol level at
1:00 p.m. would have been .37.
Carita
McKinley was on the phone with defendant on May 8, 2009, when she heard loud
banging, as if somebody were trying to get in.
She asked him, “Who is that?â€
Defendant said, “I don’t know hold on.â€
He came back to the phone and said, “It’s Andre.†She knew Andre Fluker. She heard what sounded like an argument, and
heard defendant say, “Don’t come in here.
Stop touching my things.â€
Defendant said to McKinley, “ ‘[T]weety I’m about to’―and
then it was like nothing.†Prior to the
silence, she heard a sound like wrestling.
Before
this incident, defendant told McKinley Fluker “was using intimidation to get
what he wanted from him and he was afraid of him.†Defendant felt Fluker was taking advantage of
his hospitality—spending too many nights in defendant’s room, eating his food,
bringing other people into the room—and he was “tired of it.†McKinley admitted that on occasion defendant
had been hostile, aggressive or disrespectful towards her.
On
May 8, 2009, the social worker at the Dalt Hotel called Jimmy Detels,
defendant’s peer counselor from the Tenderloin outpatient clinic, and asked him
to come to the hotel immediately because there had been an incident. While Detels was on his way there with a
coworker, he learned the incident involved defendant, and Detels called
defendant on his cell phone at 1:30 or 2:00 p.m. Defendant was hysterical and said, “[T]his
guy I tried to get him out of my room. I
called the front desk. They were
escorting him out. He came back. There was an altercation. I stabbed him, I think, and he’s laying in
the hallway, and I think I hurt him really bad.†Detels told defendant he had to turn himself
in. Defendant responded, “I don’t know
what to do; I’m just really scared; I don’t know what to do.†He then hung up.
On
May 26, 2009, a defense investigator went inside defendant’s room at the
hotel. It was still sealed. He found and photographed some garlic on the
floor between the bed and the couch.
The
defense called numerous witnesses to testify about Fluker’s violent
character. Front desk clerk Lajuana
Ceasar put Andre Fluker on the “86 listâ€
at defendant’s request on January 22, 2009.
Defendant told her that “he [no] longer wanted to see Mr. Fluker because
he was violent and trying to control his life.â€
The “86 list†is a list of people who are banned from the Dalt Hotel for
violating “house rules.†Ms. Ceasar had
known defendant since he started living at the Dalt Hotel. On a few occasions, Fluker had come to the
hotel to visit Harris and she had not let him in. When this occurred, Fluker became upset and
angry.
Ms.
Ceasar had seen Fluker “snatch and pull†on defendant during an argument they
had outside the hotel. Defendant would
not fight back. Ms. Ceasar’s personal
opinion is that Fluker was a violent person.
Fluker had a reputation in the Tenderloin for being a violent person
“based on him controlling and demanding things and putting hands on.†She had also heard Fluker was violent from
defendant and others. She had heard
Fluker threaten defendant. She had also
seen them hanging out together and being very friendly.
San
Francisco Police Officer Stephen Smalley responded to a robbery call from a
woman who lived in a Tenderloin apartment in February of 2006. She told him Andre Fluker had grabbed her by
the neck, lifted her off the floor and held a knife to her throat. He then took money off her bed and left. Smalley believed the woman was telling the
truth about the incident.
San
Francisco Police Officer Maureen Barron was called to testify about two
domestic violence incidents involving Vickie Maltbia. However, much of Barron’s testimony was
stricken―including her identification of Fluker as the
suspect―because she had no independent memory of the incident and could
only testify from her police report.
Observations†section of her police report was admitted into evidence as
defense exhibit 592A. That page included
observations of Ms. Maltbia’s injuries, and a statement that she repeatedly
refused treatment, but it contained no information about the suspect.
Michel
Bordeaux’s girlfriend is Vickie Maltbia.
He had many fights with Fluker.
In one particular altercation, Fluker beat him so badly that Bordeaux
had to be hospitalized. Fluker started
the fight when he tried to get into Bordeaux’s hotel room by kicking in the
door. Bordeaux told Fluker to leave, but
Fluker kept on hitting him. Bordeaux is
five feet one inch tall and weighs 130 pounds.
A
few weeks earlier, Bordeaux had stabbed Fluker with a metal shard when he came
to the rescue of Maltbia, because Fluker was lifting her off the ground by the
neck. Bordeaux went to jail and to trial
in that case and was acquitted by a jury.
One time, a long time ago, Fluker used a gun in front of him. Another time, also a long time ago, Fluker
used a camping knife. Bordeaux and
Fluker got into fights because Fluker wanted Maltbia. Bordeaux had never met defendant in his life
and knew of no reason why defendant would know anything about Bordeaux’s fights
with Fluker.
title="">[9]
The
defense also called two police officers who detained Fluker for trespassing at
a hotel on Mission Street in San Francisco.
The
defense called one witness to testify to defendant’s good character. Defendant’s older brother opined that
defendant was “no way†a violent person and “would never just provoke a fight
or cause a fight with anyone.†He was
not aware that (1) defendant struck a person on the head with a broken bottle
in January of 2008; (2) punched a nurse in the chest with his fist in
April of 2006; (3) threatened a security guard with a knife in February of
2006; (4) bit a person on the leg in April of 2004; (5) punched that same
person in the eye; or (6) hit another person in the face with a chair in
October of 1998. None of these incidents
changed his opinion of defendant as a peaceful man.
Patrick
Bellemare lived in a room downstairs from defendant. On December 20, 2008, defendant forced his
way into Bellemare’s room through the front door which was open a crack for
ventilation. Defendant complained that
Bellemare’s stereo was too loud.
Bellemare, who is four feet five inches tall and weighs 120 pounds,
barely pushed defendant out of the room.
Defendant swung wildly at Bellemare’s head with the arm that was still
sticking through the door. Bellemare was
“[s]cared for [his] life.†After
managing to shut the door, Bellemare called 911.
On
June 27, 2008, a police officer acting as a decoy in a robbery abatement
operation posed as an intoxicated person with $35 in his breast pocket, an open
beer can in a brown bag, and a pack of cigarettes in his hand. Defendant walked past him, then stopped,
turned around and walked back. He stood
in front of the officer and demanded a cigarette. Defendant pushed his hand into the officer’s
breast pocket and threw the officer against a cement wall about two feet
away. Defendant made a fist as if he
were going to punch the officer, took the money, and started to walk away. He was arrested by other officers nearby.
Sharon
Bonnett was working a four-hour shift, from 10:00 a.m. to 2:00 p.m., as a desk
clerk at the Dalt Hotel on May 8, 2009.
At 11:30 or 11:45 a.m., shortly before she took her lunch break, Andre
Fluker came to the front desk and asked her to call defendant. She called defendant’s room, but he did not
answer. As she hung up, she saw
defendant coming up the back stairs. He
had been downstairs serving Mother’s Day brunch.
She
overheard defendant say to Fluker, “What are you doing here? I 86ed you[.]â€
here you 86ed.†“I put you on the 86
list. I don’t want you in my room.†Bonnett heard defendant say, “I’m not holding
your coat. Do you have a dollar [?]†Fluker had a coat, which he gave to defendant
along with a dollar. After that
transaction, Bonnett started attending to other customers. She did not see how Fluker and defendant
parted. She did not recall defendant’s
demeanor or tone of voice. Bonnett
recalled that she went to lunch around 12:15 or 12:30 p.m. When she returned, at 12:50 p.m., Mr.
Khabeiry was at the desk. “He got a
phone call. He said I got to go upstairs
to Mr. Harris’ unit. I said okay.â€
On
direct examination, Ms. Bonnett was asked by the prosecutor if she had been
convicted of narcotics offenses in the early 1990’s. She admitted she “[m]ost definitely was.†The prosecutor then asked her, “Have you
changed as a person since then?†Bonnett
explained, “Yes, I have been working since.
That was May 96. . . .
Went to jail for five months 20 days.
Got out November 8, 96, and I been working ever since. Back in February of last year, I got into a
conflict with my son.
[¶] . . . [¶] Actually, what happened it was my
son’s father. He had something of mine. He wouldn’t give it back. I got in trouble. They say I robbed him. But he had my [pay]check, so I went to jail
for five days and that was that.†She
was not convicted.
The
former general manager of the Dalt Hotel frequently received complaints from
Patrick Bellemare about trivial matters.
Bellemare regularly wrote that various tenants and other people were out
to harm him. These complaints proved to
be untrue. Other tenants complained that
Bellemare’s music or television were too loud.
She investigated each incident report, and she did not recall
investigating an incident report of defendant pushing his way into Bellemare’s
room and swinging at him on December 20, 2008.
DISCUSSION
Estoppel Does Not Apply Here.
As
he did in the trial court, defendant asserts on appeal that “instructing the
jury on the manslaughter theory that [he] had acted in conscious disregard for
human life violated [his] Fifth Amendment right not to be placed in double
jeopardy, because the acquittals at the first trial precluded reliance on that
theory.†Relying primarily on
collateral estoppel
name="_ftnref11" title="">[11]
embodied in the Double Jeopardy Clause should have prevented the prosecution
from asking the second jury to consider whether defendant killed Fluker with
conscious disregard for life (as opposed to the intent to kill), because that
issue was necessarily decided in defendant’s favor by the first jury’s
acquittals of second degree murder and involuntary manslaughter. Since the prosecutor eschewed a theory of
manslaughter premised on the intent to kill in the second trial,
for all practical purposes defendant’s argument, if successful, would preclude
any prosecution at all. For the reasons
discussed below, we disagree with defendant’s premise and reject his argument
on its merits.
At
the outset, we also reject the Attorney General’s contention defendant
forfeited his double jeopardy argument by failing to enter a plea of former
jeopardy to the amended information charging voluntary manslaughter. In our view, a plea of former jeopardy would
not have made sense here. Where a jury
deadlocks and a mistrial is declared, there is no former jeopardy because “the
second trial does not place the defendant in jeopardy ‘twice.’ [Citations.]
Instead, a jury’s inability to reach a decision is the kind of ‘manifest
necessity’ that permits the declaration of a mistrial and the continuation of
the initial jeopardy that commenced when the jury was first impaneled.†(Yeager,
supra, 557 U.S. at p. 118.) Here,
defendant’s motion to preclude litigation on a discrete issue implicitly
acknowledged he could be retried on the deadlocked charge of voluntary
manslaughter. If “ ‘ “[t]he purpose
of the general doctrine of waiver is to encourage a defendant to bring errors
to the attention of the trial court, so that they may be corrected or avoided
and a fair trial had . . . .†’ †(People
v. Saunders (1993) 5 Cal.4th 580, 590), then defendant’s motion
accomplished that purpose. No waiver or
forfeiture occurred. (
defendant’s claim.
The Fifth Amendment to the
States Constitution (applicable to the states through the Fourteenth
Amendment) provides in relevant part:
“No person shall . . . be subject for the same offense to be
twice put in jeopardy of life or limb . . . .†(U.S. Const., 5th Amend.; Benton v.
Maryland (1969) 395 U.S. 784, 794.)
supra, the United States Supreme Court declared that collateral estoppel
applies in criminal cases and “is embodied in the
jeopardy.†(Ashe, supra, 397 U.S. at p. 445.)
“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an
extremely important principle in our adversary system of justice. It means simply that when an issue of
ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future
lawsuit.†(Id. at p. 443.) “[T]he rule
of collateral estoppel in criminal cases is not to be applied with the
hypertechnical and archaic approach of a 19th century pleading book, but with
realism and rationality.†(
only if several threshold requirements are fulfilled. First, the issue sought to be precluded from
relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually
litigated in the former proceeding.
Third, it must have been necessarily decided in the former
proceeding. Fourth, the decision in the
former proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former
proceeding. [Citations]. The party asserting collateral estoppel bears
the burden of establishing these requirements.â€
(Lucido v. Superior Court, supra,
51 Cal.3d at p. 341.)
In Yeager, the high court recently settled two areas of disagreement
in double jeopardy jurisprudence, both of which are relevant here. First, on its facts, the Yeager court settled that collateral estoppel applies in the
retrial of the same case after a mistrial.
(Yeager, supra, 557 U.S. at
pp. 115, 118–119.) Second,
purposes, the jury’s inability to reach a verdict on [some] counts was a
nonevent†that is not a relevant to the “preclusion inquiry†and plays no part
in the analysis of a collateral estoppel claim.
(Id. at pp. 120–121.)
The Yeager court also reaffirmed Ashe’s
holding that where a previous judgment of acquittal is based on a general
verdict, “[t]o decipher what
‘examine the record of a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and conclude whether a rational
jury could have grounded its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration.’ [Citation.]
[T]he inquiry ‘must be set in a practical frame and viewed with an eye
to all the circumstances of the proceedings.’ †(Yeager,
supra, 557 U.S. at pp. 119–120, italics added, quoting from
Here, defendant’s claim fails
because he cannot show that the issue he sought to foreclose in his second
trial—whether he killed Fluker with the conscious disregard for human
life―is either identical to the issue decided in his first trial, or was
necessarily decided in the prior trial.
With respect to the murder acquittal, defendant actually concedes that
“[p]erhaps the jury’s verdict acquitting [defendant] of murder does not compel a finding that they unanimously found he had
not acted with conscious disregard for human life. The jurors could have unanimously agreed that
the crime could be no more than manslaughter because provocation had been so
amply shown . . . .â€
Based on our examination of the
record of the first trial, taking into account the pleadings, evidence, charge,
and other relevant matter, we conclude a rational jury could have grounded its
verdict of not guilty of murder upon an issue―the lack of malice, due to
the existence of provocation and/or heat of passion, or imperfect
self-defense―other than the nonexistence of a conscious disregard for
life. Murder requires malice, whether
express (intent to kill) or implied (conscious disregard). Adequate provocation, or imperfect
self-defense, negate malice and reduce the offense to manslaughter. Inasmuch as both provocation and imperfect
self-defense (along with traditional self-defense and accident) were central
issues litigated in the first trial and upon which the court instructed, the
acquittal of murder cannot establish that the first jury necessarily decided
defendant did not act with conscious disregard for life when he stabbed Fluker.
With respect to the involuntary
manslaughter acquittal, defendant’s argument rests on the premise that implied
malice “ ‘contemplates a subjective awareness of a higher degree of risk
than does gross negligence, and involves an element of wantonness which is
absent in gross negligence.’ †(
998, 1009, fn. 5 (Butler).) He reasons from this premise that the first
jury’s “decision to acquit [defendant] of involuntary manslaughter can only be
based on a finding that his actions did not show criminal negligence;
[greater] mental state of conscious disregard for human life
. . . .†Defendant argues
that by definition “criminal negligence, which was the only mental state
required for involuntary manslaughter, is ‘aggravated, culpable, gross, or
reckless’ conduct that is incompatible with a proper regard for human life, or
in other words, ‘a disregard for human life or an indifference to
consequences.’ †(
879.)
We disagree with defendant’s
logic. Involuntary manslaughter is not a
lesser included offense of voluntary manslaughter (People v. Orr (1994) 22 Cal.App.4th 780, 784 (Orr)), and criminal negligence is not a “lesser included mental
state†of implied malice. For that
reason, it does not follow that acquittal of the lesser offense of involuntary
manslaughter precludes conviction for the greater offense of voluntary
manslaughter.
One of the two intent elements that
satisfy the mens rea requirement for
voluntary manslaughter (as well as murder) is the conscious disregard for
life. Although the intent element for
involuntary manslaughter is described in similar-sounding language, it relates
to a disparate mental state:
indifference to life, i.e., criminal negligence. As explained in Butler, supra, 187 Cal.App.4th 998, “[b]oth murder (based on
implied malice) and involuntary manslaughter involve a disregard for life;
however, for murder the disregard is judged by a subjective standard whereas
for involuntary manslaughter the disregard is judged by an objective
standard. [Citations.] Implied malice murder requires a defendant’s
conscious disregard for life, meaning that the defendant subjectively
appreciated the risk involved.
[Citation.] In contrast, involuntary
manslaughter merely requires a showing that a reasonable person would have been
aware of the risk.†(
acquittal of involuntary manslaughter in a murder case means it impliedly found
that a reasonable person would not have been aware of the risk to life posed by
brandishing a knife or raising a hand holding a knife, that same hypothetical
jury could also have found that the defendant either intended to kill, or
subjectively appreciated the risk that he might kill a man if he stabbed him
mid-chest, and consciously disregarded that risk, but that the intent was
mitigated (i.e., negated) by heat of passion or imperfect self-defense.
Voluntary and involuntary manslaughter
also raise different factual and legal issues with respect to the
the same as the unlawful act at issue in involuntary manslaughter. “[I]n order to convict a person of voluntary
manslaughter, the jury must find that the killing was intended and was unlawful
in that it was neither justifiable, that is, did not constitute lawful
defense of self, others, or property, prevention of a felony, or preservation
of the peace (§ 197 [fn. omitted]); nor excusable, that is, the
killing did not result from a lawful act done by lawful means with ordinary
caution and a lawful intent, and did not result from accident and misfortune
under very specific circumstances, including that no dangerous weapon was used
(§ 195 [fn. omitted]).†(
784.) This is also true of the unlawful
act required for murder. (See CALCRIM
No. 500 [“Homicide: General Principlesâ€].) However, “in order to convict a person of
involuntary manslaughter, the jury must find that the killing was unlawful
in that it occurred in the commission of an ordinarily lawful act which
inherently involved a high degree of risk of death or great bodily harm and was
accomplished in a criminally negligent manner.
The definition of unlawful as an element of involuntary
manslaughter differs significantly from that of voluntary manslaughter [or
murder] and requires the trier of fact to make substantially different
findings.†(Orr, supra, at p. 784.)
Turning now to the actual
instructions given in this case, we find the first jury was instructed that
“defendant acted with implied malice if:
1. He intentionally committed an act; 2. The natural and probable
consequences of the act were dangerous to human life; 3. At the time he
acted, he knew his act was dangerous to human life; AND 4. He deliberately
acted with conscious disregard for human life.â€
(CALCRIM No. 520 [“First or Second Degree Murder With Malice
Aforethought (Pen. Code, § 187â€).])
The instructions to the jury also
defined involuntary manslaughter as “[a]n unlawful killing resulting from a
willful act committed without a intent to kill and without a conscious
disregard of the risk to human life†when his or her act unlawfully caused a
death by (1) committing a misdemeanor―here, brandishing a
knife―that posed a high risk of death or great bodily injury because of
the way it was committed; or
(2) committing a lawful act―here, raising his hand with a
knife―with criminal negligence.
Criminal negligence was defined as
“involv[ing] more than ordinary carelessness, inattention or mistake in
judgment,†as when he “acts in a reckless way that creates a high risk of death
or great bodily injury; and “[a] reasonable person would have known that acting
in that way would create such a risk. In
other words, a person acts with criminal negligence when the way he or she acts
is so different from the way an ordinarily careful person would act in the same
situation that his or her act amounts to disregard for human life or
indifference to the consequences of that act.â€
(CALCRIM No. 580 [“Involuntary Manslaughter: Lesser Included Offenseâ€].)
Complicating matters, however, were
incorrect instructions, given over the prosecutor’s objections. A defense-devised instruction, denoted as
571a, informed the jury that “[a] killing that would otherwise be murder
if the defendant killed someone because he acted in imperfect self defense and
without conscious disregard of human life. . . . [¶] The difference between voluntary
manslaughter and involuntary manslaughter depends on whether the defendant
acted with a conscious disregard of human life.†(Italics added.)
CALCRIM No. 571, which informed the
jury that “[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed
someone because he acted in imperfect self defense.†(Italics added.)
As defense counsel argued in a
memorandum of points and authorities in support of instruction CALCRIM No.
571a, “[t]he jury may find that Mr. Harris was in his room cutting garlic with
the knife when Mr. Fluker unlawfully reentered his room and hit him. They may further find that in that fleeting
moment Mr. Harris acted in unreasonable self-defense because he was in threat
of serious bodily injury and unintentionally cut Mr. Fluker without a conscious
disregard for human life. [¶] The
evidence presented at trial could lead the jury to make the reasonable finding
that Mikel Harris’ conduct in reflexively defending himself with a knife
already in his hand was not an act
with either intent to kill or a conscious disregard for life. The jury could easily come to this conclusion
based upon Mr. Harris’ statement to the police that he was hit and then cut
[Mr. Fluker] in a reflex. Moreover, the
jury could find that Mikel Harris did not act with a conscious disregard for
human life because the knife was already in his hand, he was mildly intoxicated
and it is reasonable to assume that he acted without the knowledge the knife
was in this hand.†(Original italics.)
Under these instructions, it appears
the jury could not convict―or acquit―defendant of involuntary
manslaughter unless it first believed
defendant acted in imperfect self-defense, which negates implied malice (i.e.,
conscious disregard). Either way, the
absence of malice was a given, if
imperfect self-defense existed. But to
manslaughter under these instructions, the jury had to find the nonexistence of
a misdemeanor, or the nonexistence of a lawful act performed in an unlawful
manner, or the absence of criminal negligence.
Under the peculiar circumstances of this case, the jury’s acquittal verdict
on involuntary manslaughter may reflect a decision that some jurors viewed
defendant’s conduct as more serious
than the conduct described by the elements of involuntary manslaughter. Thus, some jurors may even have decided that
defendant did not merely brandish a knife, or merely raise his hand while
holding a knife, in a grossly negligent manner.
Still other jurors may have believed he did so, but only in
self-defense.
title="">[17] To return a verdict of not guilty, all jurors
must have concluded that whatever the crime defendant committed, if any, it was
not involuntary manslaughter. The
general verdict does not reveal which avenue or avenues the jurors took, but it
does suggest that none of the possible paths to acquittal necessarily involved
a finding defendant was not subjectively aware that his conduct involved the
risk of death or great bodily injury, and his conscious disregard of that
risk. In light of the contradictory
instructions, the various possible exonerating factual findings on which the
jury could have rested its verdict, and the multiplicity of possible verdicts,
it is impossible to conclude that the one, identical issue necessarily decided
by the first jury in acquitting defendant of involuntary manslaughter was that
he acted without a conscious disregard for human life. Defendant has failed to carry his burden of
showing that a rational jury could not have grounded its verdict upon an
issue other than the one defendant seeks to foreclose from consideration. Consequently, collateral estoppel does not
apply.
The Trial Court Did Not Misinstruct on Intoxication.
Defendant argues that Penal Code
section 22 “is silent on the question of whether evidence of intoxication may
be considered in cases where malice aforethought is absent,†and that it must
be interpreted to allow jury consideration of the effect of voluntary
intoxication on the formation of the conscious disregard required for voluntary
manslaughter. He argues that the
intoxication instruction given here prejudiced his case, because it prevented a
reasonable jury from considering whether, “due in large part to the effects of
alcohol,†he did not know he was going to stab Fluker and did not act in
conscious disregard of human life.
Over
defense counsel’s objection,
name="_ftnref18" title="">[18]
the trial court instructed the jury on intoxication in accordance with CALCRIM
No. 625 (“Voluntary Intoxication:
Effects on Homicide Crimes (Pen. Code, § 22)â€).
section 22, of which subdivision (b) states:
“Evidence of voluntary intoxication is admissible solely on
the issue of whether or not the defendant actually formed a required specific
intent, or, when charged with murder,
whether the defendant premeditated, deliberated, or harbored
v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza),
our Supreme Court reviewed the history of amendments to section 22 and
concluded that the amendment which gave section 22 its present language
abrogated the court’s holding, in People
v. Whitfield (1994) 7 Cal.4th 437 (Whitfield),
“ ‘that section 22 was not intended, in murder prosecutions, to preclude
consideration of evidence of voluntary intoxication on the issue whether a
defendant harbored malice aforethought, whether the prosecution proceeds on a
theory that malice was express or implied.’ †(Mendoza,
supra, 18 Cal.4th at p. 1125, quoting from Whitfield, supra, 7 Cal.4th at p. 451.) Whitfield
involved the question whether intoxication could negate implied malice (i.e.,
subjective awareness and conscious disregard) in a prosecution for murder
stemming from a fatal drunk driving collision.
Despite
defense counsel’s objection below, and her assertion that defendant was
on appeal defendant argues, nonetheless, that an intoxication instruction
the jury to consider defendant’s intoxication on the question whether he was
subjectively aware of the risk of death posed by his actions, and consciously
disregarded that risk. The failure to so
instruct, he charges, denied him due process of law under the Fifth and
Fourteenth Amendments to the United States Constitution. We reject defendant’s claims for several
reasons.
First, defendant cannot now argue
that the trial court erred by not
giving a modified instruction on intoxication and conscious disregard, when he
objected below to any intoxication
instruction, for the stated reason that intoxication was not his defense and
would merely confuse the jury. In our
view, any such error was either forfeited (People
.v Cole (2004) 33 Cal.4th 1158, 1211) or invited. (People
v. Seaton (2001) 26 Cal.4th 598, 668.)
In his reply brief, defendant
switches gears and argues the issue is not waived because “the court should
have given no instruction at all.â€
Without the instruction, he argues, the jury would have been free to
consider evidence of intoxication on any issue it pleased, including conscious
disregard, and the error is that the instruction as given “forbade the jurors
from considering intoxication on any issue other than intent to kill.â€
We reject defendant’s arguments for
the following reasons. There was
sufficient evidence presented from which the jury could have inferred that
defendant was intoxicated at the time of the assault, even though defendant did
not rely on intoxication as a defense.
Thus, the court correctly granted the prosecution request for an
instruction to guide the jury’s consideration of that evidence, instead of
leaving the jury to evaluate that evidence in a manner of its own devising.
defense to a crime, intoxication evidence “is proffered in an attempt to raise
a doubt on an element of a crime which the prosecution must prove beyond a
reasonable doubt. In such a case, the
defendant is attempting to relate his evidence of intoxication to an element of
the crime.†(People v. Saille (1991) 54 Cal.3d
1103, 1120.) An instruction
relating intoxication to some required mental state is such a “pinpointâ€
an instruction on its own
initiative, and if the instruction as given is
adequate, the trial court is under no obligation to amplify or explain in the
absence of a request that it do so.†(
668, 778.)
Defendant could have asked the court
to modify the instruction along the lines he argues on appeal: that section 22 is “silent†as to whether
intoxication evidence can negate or rebut conscious disregard/implied malice in
a voluntary manslaughter prosecution when murder is not charged and, therefore,
does not forbid it. Absent such a
request, the trial court was under no obligation to consider altering the
standard CALCRIM instruction, and we are under no concomitant obligation to
consider the argument on its merits.
“Defendant did not ask the trial court to clarify or amplify the
instruction. Thus, he may not complain
on appeal that the instruction was incomplete.â€
(People v. Cole, supra, 33
Cal.4th 1158, 1211.)
In any event,
defendant’s argument lacks merit. CALCRIM No. 625 correctly reflects the
strictures of section 22, as that section has been interpreted by our Supreme
Court in Mendoza, supra, 18 Cal.4th
1114 [evidence of voluntary intoxication cannot negate implied malice required
for murder], and People v. Atkins
(2001) 25 Cal.4th 76 (Atkins)
[evidence of voluntary intoxication cannot negate general criminal intent
required for arson]. We do not find
compelling defendant’s argument that section 22 is “silent†on implied malice
in a voluntary manslaughter prosecution, and that it is “illogical†to infer
from Mendoza and Atkins that evidence of voluntary intoxication cannot negate the
“implied malice†prong of criminal intent when voluntary manslaughter is
charged and tried on its own, without murder.
The reasoning of Mendoza and
malice manslaughter†is a general or specific intent crime, section 22 does not
permit intoxication evidence to be used to negate that intent and thereby
create a complete defense to manslaughter.
Furthermore, we agree with the
reasoning of People v. Timms (2007)
151 Cal.App.4th 1292 (Timms) and find
it dispositive here. In
argued that “application of section 22 to his case, through [CALCRIM No. 625] violates
his due process right because the effect is to exclude relevant evidence on the
issue of whether he harbored a ‘conscious disregard’ for life.†(Timms,
supra, at p. 1298.) Because Timms
was acquitted of second degree murder, but convicted of voluntary manslaughter
(in one trial), “there is no issue concerning implied malice. However . . . the mental
requirement for unintentional voluntary manslaughter as explicated in
and the definition of implied malice both share the concept of conscious
disregard for life. Thus, [Timms’s]
complaint is that the court should have instructed the jury that it could
consider voluntary intoxication when determining whether he acted with conscious
disregard.†(Timms, supra, at p. 1298, fn. 6.)
Reviewing both Justice Ginsberg’s
concurring opinion in the United States Supreme Court’s 4-4-1 decision in
of section 22, the Timms court
concluded that amended section 22 did not belong “to the prohibited category of
evidentiary rules designed to exclude relevant exculpatory evidence.†(Timms,
supra, 151 Cal.App.4th at p. 1300.)
Rather, the Timms court
reasoned, given California’s lengthy history of limiting the admissibility of
voluntary intoxication and other capacity evidence for defensive purposes,
amended section 22 “ ‘embodies a legislative judgment regarding the
circumstances under which individuals may be held criminally responsible for
their actions’ †and is therefore constitutional. (Timms,
supra, at p. 1300. See also
(conc. opn. of Ginsburg, J.).) It would
serve no useful purpose to further quote from or paraphrase the
opinion. Suffice to say we agree with
its reasoning, and find it applies to the present case. Although defendant argues that
case the issue arose in a murder trial, we find that to be a distinction
without a difference in this case. The
instructions given in both Timms and
this case required the jury to wrestle with the element of “conscious
disregard†in the context of voluntary manslaughter. We hold that the trial court did not err in
giving CALCRIM No. 625, and that instruction did not violate defendant’s due
process rights.
Was Not Entitled To An Instruction On Accident And Misfortune And Heat Of
Passion Excusable Homicide.
Defendant
argues that the jury should have been instructed along the lines that “if [he]
did not know he had a knife, then he was entitled to a ‘heat of passion’
excusable homicide instruction, because the very fact that he had a knife in
his hand was itself the result of accident or misfortune. This exact point has never been considered,
in the context of Penal Code section 195, subdivision 2.†As we shall explain, defendant was not
entitled to such an instruction for a number of reasons.
Section 195 codifies the circumstances
under which accident or misfortune will provide a defense to a homicide
charge: “Homicide is excusable in the
following cases: [¶]
When committed by accident and misfortune, or in doing any other lawful act by
lawful means, with usual and ordinary caution, and without any unlawful
intent. [¶]
committed by accident and misfortune, in the heat of passion, upon any sudden
and sufficient provocation, or upon a sudden combat, when no undue advantage is
taken, nor any dangerous weapon used,
and when the killing is not done in a cruel or unusual manner.†(Italics added.) Section 26, subdivision five, lists generally
all categories of persons who lack criminal responsibility. One of those categories includes persons who
commit acts by accident or misfortune.
The jury in this case was instructed on
section 195, subdivision 1. (CALCRIM No.
510.) Defendant did not request, and the
jury was not instructed, on section 195, subdivision 2 (CALCRIM No. 511)
or section 26, subdivision five.
(CALCRIM No. 3404.).
name="_ftnref22" title="">[22] On appeal, defendant contends the jury should
have been instructed with one or the other.
Presumably, CALCRIM No. 3404 would have been more desirable than CALCRIM
No. 511 because it does not contain the limitations of the homicide-specific
instruction.
To the extent that either instruction
may have been applicable, defendant’s failure to request one or the other
forfeits his claim under recent Supreme Court precedent. “Generally, the claim that a homicide was
committed through misfortune or by accident
‘amounts to a claim that the defendant acted without forming the
make his or her actions a crime.’
[Citation.] In People v.
Saille[, supra,] 54
Cal.3d 1103, we held that evidence ‘proffered in an attempt to raise a doubt on
an element of a crime which the prosecution must prove beyond a reasonable
doubt’ may, but only upon request, justify the giving of a pinpoint instruction
that ‘does not involve a
“general principle of law†as that term is used in the cases that have imposed
a sua sponte duty of instruction on the trial court.’ (Id. at p. 1120.) ‘Such instructions relate particular facts to
a legal issue in the case or “pinpoint†the crux of a defendant’s case, such as
mistaken identification or alibi. [Citation.] They are required to be given upon request
when there is evidence supportive of the theory, but they are not required to
be given sua sponte.’ (Id. at p.
1119.)†(People v. Jennings (2010) 50 Cal.4th 616, 674–675 (
v. Anderson (2012) 51 Cal.4th 989 (Anderson).)
Second, there was no factual basis for
an accident instruction based on subdivision 2 of section 195, or section 26,
subdivision five, because the statutory defense making homicide excusable
exists only if the defendant did not use a dangerous weapon. Here, defendant used a knife. His argument that the limitation under
section 195, subdivision 2 does not apply if he did not “know†he was using a
knife is unsupported by the facts.
Defendant’s own statement―on which he relies for this
argument―established that he “knew†he was using a knife: he had been chopping garlic with it when
Fluker came back into defendant’s room and shoved him in the chest, causing
defendant to react reflexively by hitting Fluker in the chest with the knife in
his hand. He may have hit Fluker with
the knife unintentionally, i.e., “by accident.â€
But reflex is not the same as lack of knowledge.
Finally, defendant cites no legal
authority to support the proposition that section 195, subdivision 2 includes
an unstated exception for the unintended or unknowing use of a deadly
weapon. In Anderson, our Supreme Court rejected an analogous argument that
accident could be a defense to robbery if the defendant used force or fear, but
did not intend “to cause the victim to experience force or fear.†(Anderson,
supra, 51 Cal.4th at p. 995.) We see
no basis for interpreting section 195, subdivision 2 other than exactly as
written. The trial court did not err in
failing to instruct the jury that defendant was not criminally responsible for
a homicide if he used a deadly weapon, but did so “unknowingly.â€
Trial Motion Was Properly Denied.
On appeal, defendant renews his claim
that a new trial should have been granted because the prosecution failed to
timely turn over the police report relating to Sharon Bonnett’s 2009
arrest. He asserts this discovery lapse
constituted a due process violation under Brady
v. Maryland (1963) 373 U.S. 83 (Brady)
in that it prevented him from impeaching Bonnett’s trial testimony with the
facts underlying her 2009 arrest. He
argues that “Bonnett’s credibility was crucial to the outcome†of the trial,
given that “[i]n the previous trial where Bonnett had not testified, there was
a hung jury.†As we explain below,
having independently reviewed the record, we are not convinced the undisclosed
information was material. Even if the
2009 arrest report had been disclosed to the defense in a timely fashion, and
Bonnett had been impeached with its contents, we find no reasonable probability
that the result of the trial would have been different. (United
States v. Bagley (1985) 473 U.S. 667, 682; Kyles v. Whitley (1995) 514 U.S. 419, 433.) Therefore, there was no Brady violation, and the trial court correctly denied the new trial
motion. To place our conclusion in
context, we begin by setting forth the procedural facts pertinent to the
nondisclosure of the 2009 arrest report.
Background
Several hearings outside the jury’s
presence were held on defense counsel’s vociferous objections to the
prosecution’s revelation that he intended to call Sharon Bonnett as a rebuttal
witness. At the hearing on Monday,
October 4, 2010, the prosecutor stated that he mistakenly believed the witness’s
surname was B-E-N-N-E-T, and when he first checked that name and the associated
birth date for a criminal record, he found none, and told defense counsel so
the previous Thursday. However, he
subsequently learned her name was B-O-N-N-E-T-T. When he checked for criminal records
pertaining to the correct name and birth date, he found that the witness had
two prior felony convictions from 1993 and 1994 for drug offenses (Health &
Safety Code §§ 11350, 11351.5), a prior misdemeanor conviction for theft
in 1992, and a 2009 arrest that eventually resulted in a dismissal. The prosecutor delivered this information to
the defense attorney on the previous Friday afternoon. However, he did not have
an arrest report to give defense counsel for the 2009 incident.
In the meantime, defense counsel
conducted her own criminal records check and discovered not only the felony
convictions, but also a 2009 arrest for robbery, false imprisonment, domestic
violence, battery and domestic violence corporal injury. She argued the arrest report might well
reveal information that could be used for impeachment under
admissibility of the evidence to the court, or effectively cross-examine Ms.
Bonnett, without knowing what was in the arrest report, which she still did not
have. She asked for exclusion of the
witness or, alternatively, a late discovery instruction.
The court ruled the prosecutor could
call Ms. Bonnett as a witness; the defense could impeach her with the two prior
felony convictions; but the court was excluding the misdemeanor theft and the
2009 arrest for a dismissed robbery as “more prejudicial than probative.†Following more argument, the court again
ruled that since there was no conviction stemming from the charges, the evidence
would be excluded “unless she opens the door somehow while she’s on the
stand.†The court re-affirmed its prior
ruling the next day. When the prosecutor
asked Ms. Bonnett if she had “changed as a person since†her earlier
convictions, she explained that she had, notwithstanding the “conflict†with
her son’s father that occurred the previous year.
Defense counsel requested a side bar
discussion, after which the prosecutor invited Ms. Bonnett to elaborate upon
the “situation that happened with your son last year.†She said her son’s father had her paycheck
and wouldn’t give it back. She was
accused of robbing him and she got in trouble and went to jail for five days,
but she was never convicted. On
cross-examination, defense counsel asked no questions about the 2009
arrest. The court later indicated that
after the witness had “opened the door†in her testimony, the court “allowed
both sides to question her about it.â€
The arrest report relating to Ms.
Bonnett’s 2009 arrest was not disclosed to the defense until after the
conclusion of the trial. Defendant’s new
trial motion based on the late disclosure of the report was argued and denied
March 1, 2011. The court ruled that Ms.
Bonnett’s testimony was helpful, but not central to the prosecution case. Noting that the prosecution case included a
taped interview of the defendant, among other evidence, the court concluded
that even if the defense had been allowed to impeach Ms. Bonnett with the 2009
arrest report, it would not have affected the outcome of the case viewed in the
context of the entire record of the trial.
The report includes statements from
all of the participants in the affray, as well as from a security guard
witness. Their statements were largely
in agreement with each other.
Bonnett and Holland are the parents
of a then 12-year-old son. Holland,
recently paroled from prison, had been staying at Bonnett’s home. On February 13, 2009, Bonnett spent the night
with her boyfriend, Washington, at his place.
The next morning she called Holland and asked him to bring her paycheck
to the Transbay Terminal.
Bonnett and Holland met while
Washington waited across the street.
Holland had her paycheck, but he told Bonnett that he didn’t have it, in
order to get her to go back to her home with him. An argument ensued. Washington joined them. Security gu
| Description | On May 8, 2009, defendant Mikel Harris fatally stabbed Andre Fluker in the chest during an altercation in defendant’s room at the Dalt Hotel in San Francisco’s Tenderloin neighborhood. Defendant was charged with second degree murder, but a jury acquitted him of that charge and involuntary manslaughter. The jury deadlocked on voluntary manslaughter. A second jury convicted defendant of voluntary manslaughter. On appeal, defendant asserts collateral estoppel foreclosed retrial on the theory that defendant killed with a subjective awareness of, and conscious disregard for, the risk of death, and the trial court misinstructed the jury on manslaughter, intoxication, and accident and misfortune. He also argues the trial court erroneously denied his new trial motion based on the prosecutor’s failure to timely disclose impeaching evidence relevant to the credibility of a prosecution rebuttal witness. After careful review of the case, we affirm. |
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