CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
(Los Angeles County
Super. Ct. No. BA219596)
DARRYL DORRELL TATUM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Alice E. Altoon, Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
Bill Lockyer, Attorney General of the State of California, Robert R. Anderson,
Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney
General, Susan D. Martynec, Supervising Deputy Attorney General, and Alan D. Tate,
Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of parts 2 and 3.
Appellant Darryl Tatum was convicted, following a jury trial, of one count of
attempted murder in violation of Penal Code sections 187 and 664, one count of assault
with a deadly weapon in violation of section 245, subdivision (a)(1) and one count of
infliction of injury on a dependent elder in violation of section 368, subdivision (b)(1).
The jury found that in the commission of all three offenses, appellant personally inflicted
great bodily injury within the meaning of Penal Code section 12022.7, subdivisions (a)
and (c) and personally used a deadly and dangerous weapon within the meaning of
section 12022, subdivision (b)(1). The jury also found true the allegation that the victim
suffered great bodily injury within the meaning of Penal Code section 368, subdivision
In the published portion of this opinion, we consider appellant's contention that the
trial court erred in admitting the videotaped statement of the deceased victim pursuant to
the Elder and Dependent Adults exception to the Hearsay Rule set forth in Evidence
Code section 1380. In the unpublished portion of this opinion, we consider appellant's
claims that the trial court erred in failing to instruct the jury on the lesser offense of
voluntary manslaughter and on the requirement of unanimity. We affirm the judgment of
Willie Smith lived with his bed-ridden, Alzheimer's-stricken, wife in their home at
227 West 41st Street, in the City of Los Angeles. Smith was 82 years old in March 2001,
when he was the victim of the crimes in this case. Smith died of natural causes before the
trial of this matter.
The trial court sentenced appellant to a total term of fifteen years in prison,
consisting of the upper term of nine years in state prison for the attempted murder
conviction plus five years for the great bodily injury enhancement and one year for the
weapon enhancement. The court stayed sentence on the Penal Code section 245 and 386
convictions pursuant to section 654. The court also imposed a $2,000 restitution fine
pursuant to Penal Code section 1202.4 and a parole revocation fine of $2,000, stayed,
pursuant to section 1202.45.
The Smiths needed assistance with their daily living activities. In March 2001,
this assistance was provided by Annie Dinkins and appellant, sometimes together and
sometimes separately. Dinkins described Smith as "difficult" at times. She testified that
Smith and appellant got along "fairly well." The two did have disagreements from time
to time, and they debated certain issues. She never saw them get physical with each
other. The two had a close relationship and Smith cared about appellant.
On Monday, March 19, 2001, at about 8:45 a.m., Dinkins called Smith and told
him she would arrive late that morning. Smith sounded normal on the telephone. When
Dinkins arrived at about 9:05 a.m., Smith's white van was not there and she found Smith
on his knees slumped over in his living room recliner, bleeding, with "a big hole in the
center of his head." There was blood in the dining room and a hammer and shovel were
on the table. Smith was known to maintain large amounts of cash in his home or on his
person, but Dinkins had no way of knowing if any was missing.
Dinkins asked Smith who did it to him, and he said that he did not know. Dinkins
did not think he was being truthful. Dinkins tried to call 911 on the house telephones,
discovered that they were not working, and called 911 on her cellular telephone.
Smith was taken to the hospital. The police investigated the scene of the attack.
There was splattered blood in the dining room, the dining room furniture was overturned,
and there was a broken clock, broken iron skillet, and bloody hammer on the floor. The
recliner in the living room had large blood stains on it. There were two bloody towels on
the floor. Nearby, a striped shirt bearing a large blood stain, and later determined to
belong to appellant, was found on the floor. A fireplace shovel was found on the kitchen
table and it appeared to have dried blood on it. Mrs. Smith was still in her bedroom, but
in no condition to understand or relate what had happened to Mr. Smith.
At the hospital, Smith was examined and underwent numerous tests. It was
determined that he suffered from numerous focused blunt force injuries to his head
resulting in a complex depressed skull fracture and numerous lacerations to the sides and
rear of his scalp with bleeding in his brain. The injuries were consistent with having been
caused by the hammer recovered at the scene. Ultimately, Mr. Smith underwent a
complicated surgery on March 20, 2001, during which doctors reconstructed his skull
with two titanium plates.
Los Angeles Police Detective Jerry Code spoke to Mr. Smith in the hospital later
on the day of the attack and prior to the surgery.
Police attempted to locate appellant but were unable to do so.
Two days after the attack, Arizona Department of Public Safety officers
discovered appellant sleeping in the back of a white van reported stolen from Mr. Smith's
house. Appellant was arrested, and the shirt, pants, and boots that he was wearing were
confiscated. Employees of the Arizona office of the Federal Bureau of Investigation
processed the white van and messengered appellant's clothing and other material to the
Los Angeles Police Department. Appellant was extradited back to Los Angeles.
Blood was found on the shirt, pants, and boots that appellant was wearing when he
was arrested. Criminologists compared that blood, and blood from the shirt and hammer
recovered from Smith's residence with DNA samples taken from both Smith and
appellant. The criminologists, who were experienced with DNA processing and analysis,
concluded that the DNA of the blood found on all these items matched Smith's DNA.
On April 24, 2001, Senior District Attorney Investigator Joseph Kay interviewed.
Smith for about two hours at his nursing home and videotaped the entire interview.
During this interview, Smith was confused about some matters, but maintained that it was
appellant who attacked him with a hammer. Smith was unable to select appellant's
photograph from a six-pack photographic line-up, but identified appellant in a larger
photograph. Also during this interview, Smith maintained that he and appellant had not
argued or fought before the attack, and repeatedly expressed confusion about this incident
because he thought appellant was his best friend.
Appellant testified on his own behalf at trial and denied inflicting injury on Smith.
Appellant stated that he was in the house earlier in the morning, but went outside to work
A transcript of this interview was provided to each juror when the videotape was
played during trial, and a copy of this transcript is contained in the Clerk's Transcript.
on Smith's van when Smith answered the telephone. The van was parked on the street
about two houses away, and appellant worked on it for about 15 minutes. Appellant
returned to the house within 20 minutes of when he last saw Smith and was shocked to
find him lying on the dining room floor with his head all bloody. Appellant asked Smith
what had happened, but Smith said that he did not know.
Appellant helped Smith turn over, and then helped him up into his recliner.
Appellant gave Smith a towel for the blood on his face, but did not notice the severe
injury on the top of his head. Appellant tried to call for help using the telephones, but
discovered they were not working. Smith made a comment about his money, and
appellant noticed that a filing cabinet in the dining room area was open.
Appellant looked around for a telephone. The cordless telephone was missing and
the telephone in Mrs. Smith's room did not work. Smith's head went sideways, and he
did not respond when appellant called his name. Appellant became concerned that Smith
Appellant noticed he had a large blood stain on his shirt, so he took it off and
dropped it on the floor. Appellant put on one of Smith's shirts, and walked out the front
door of the house to the van. Appellant "[d]idn't want to get caught up in that."
After appellant left the house, he did not try to call the police or an ambulance. He
drove to San Diego, where he stopped and bought gasoline. He then headed east and
stopped in El Centro to call his wife and to get gasoline, oil, and transmission fluid. In
Maricopa County in Arizona, the van broke down. He had the van repaired at a local
garage for $37.
Appellant then decided to return to California. As he got close to the California
border, the van started to overheat. Appellant stopped the van and went to sleep in the
back. The next thing he remembered was being awakened by police outside the van.
According to appellant, the officers pointed guns at him and he cooperated with their
requests to exit the van. Appellant was arrested, had $89 confiscated from him, and was
taken to the station.
Appellant acknowledged that Smith could be "difficult" at times. However,
appellant was used to Smith's mood swings, always got along well with Smith, and had
no problems with him at all. According to appellant, on the morning of the attack, Mr.
Smith had been teasing appellant about how much money appellant was spending on a
crib for his new grandson. Far from having any actual disagreement or argument, Mr.
Smith reached into his wallet, pulled out $100, and gave it to appellant.
Appellant admitted that Smith had tried to evict appellant and his family from
their home, which they rented from Smith, four times over the previous five years, with
the last time being in December of 2000. That latest eviction proceeding was dismissed,
and according to appellant, he continued to work for, and be paid by, Smith throughout
this period without problem.
Appellant also called Detective Code as a defense witness, to testify about Code's
interviews of Smith. Detective Code spoke for the first time to Smith in the hospital on
the afternoon of March 19, 2001, and asked him if he had any previous arguments with
appellant. Smith said no. When asked if appellant hit him that morning, Smith said
repeatedly, "I don't know." Smith said he was home with his wife and appellant when
someone struck him on the head and then tried to choke him. Smith said that the only
people in the house at that time were his wife and appellant. Detective Code admitted
using appellant's name, Darryl Tatum, during the interview.
Detective Code spoke to Smith again on March 21, 2001. When asked if appellant
hit him, Smith said that appellant hit him in the head, they got into a scuffle, and then
appellant nearly choked him to death. During the scuffle, appellant asked Smith where
his "big money" was. Detective Code tried to tape-record another interview later that
day, but Smith had been medicated and was less coherent.
Detective Code interviewed Smith a fourth time on April 5, 2001. During that
interview, Smith said appellant hit him with a hammer, tried to choke him, and asked him
where his money was. Smith was perplexed as to why this happened because he
expressly thought he and appellant were good friends. Smith did say, however, that he
was trying to evict appellant because he was behind in his rent. During a fifth interview
on April 20, 2001, Smith was unable to select appellant's photograph from a six-pack
photographic line-up, but was able to identify appellant in a larger photograph.
1. Evidence Code section 1380
Mr. Smith died of natural causes before the trial of this matter. Pursuant to the
elder abuse and dependent adults exception to hearsay evidence set forth in Evidence
Code section 1380, the trial court admitted the videotape of District Attorney Investigator
Kay's interview of Mr. Smith. The interview was conducted about a month after the
attack, while Mr. Smith was in a nursing home recovering from the attack. Appellant
contends that the trial court's admission of this videotape statement was prejudicial error
because it was untrustworthy and therefore not reliable. He also contends that the
admission of the tape violated his federal constitutional right to confront the witnesses
a. Section 1380
Section 1380 provides in that "[i]n a criminal proceeding charging a violation, or
attempted violation, of Section 368 of the Penal Code, evidence of a statement made by a
declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness, as defined in subdivisions (a) and (b) of Section 240," and a number of
requirements are met. (§ 1380, subd. (a).)
The United States Supreme Court has determined that the introduction of reliable
hearsay evidence in a criminal case does not violate either due process or the right to
confront and cross-examine witnesses. (Idaho v. Wright (1990) 497 U.S. 805, 819-820;
In re Lucero L. (2000) 22 Cal.4th 1227, 1243-1244.) Indicia of reliability are
"particularized guarantees of trustworthiness" concerning the hearsay statement and the
All further statutory references are to the Evidence Code unless otherwise
totality of circumstances that surround the making of the statement that render the
declarant particularly worthy of belief in making its determination of trustworthiness.
(Idaho v. Wright, supra, 497 U.S. at p. 820.)
Section 1380 satisfies this constitutional requirement because it requires that
hearsay evidence cannot be admitted unless "The party offering the statement has made a
showing of particularized guarantees of trustworthiness regarding the statement, the
statement was made under circumstances which indicate its trustworthiness, and the
statement was not the result of promise, inducement, threat, or coercion. In making its
determination, the court may consider only the circumstances that surround the making of
the statement and that render the declarant particularly worthy of belief."
A trial court's determination regarding whether a hearsay statement has the
required indicia of reliability is subject to independent review on appeal. (Lilly v.
Virginia (1999) 527 U.S. 116, 136; People v. Eccleston (2001) 89 Cal.App.4th 436, 445446.) A trial court's finding of historical fact must be upheld if supported by substantial
evidence. A trial court's determinations of state law issues are also reviewed for an abuse
of discretion (Lilly v. Virginia, supra, 527 U.S. at p. 136.)
A principal requirement of "trustworthiness" is that the declarant's statement must
be true. In Wright, the U.S. Supreme Court gave as an example of circumstances which
surround the making of the statement and which guarantee trustworthiness, the "excited
utterance" exception, where it is highly unlikely that the speaker had an opportunity to
fabricate or be coached because of the closeness in time between the occurrence and the
statement. As an example of circumstances which render the person unlikely to lie, the
Court pointed to the "dying declaration" and "medical treatment" exceptions, which are
based on the belief that persons making such statements are highly unlikely to lie because
lying would be against their spiritual or physical self-interest. (Idaho v. Wright, supra,
497 U.S. at p. 820.)
The trial court found Smith did not have "the state of mind to fabricate."
Independently reviewing the totality of the circumstances in light of Wright, we agree
that the circumstances surrounding the making of the statement rendered Smith unlikely
to lie. There is no evidence tending to show that Smith would lie or had a motive to lie
about the attack upon him, and he had nothing to gain lying about the attack or the
identity of the attacker. In fact, falsely accusing appellant would be contrary to Smith's
self interest, much in the same way a person seeking medical treatment would be acting
against his own self-interest by lying to his doctor. Appellant was a caretaker of Smith
and his wife. He was of great personal assistance to appellant and Mrs. Smith. Falsely
implicating appellant to cause appellant to be charged with the attack would have left
appellant without full-time care upon his release from the nursing home, and would have
deprived Mrs. Smith of appellant's services.
Although appellant acknowledges that while Smith may well not have deliberately
lied, he contends that Smith's statements were not trustworthy or reliable for another
reason. Appellant points out that Smith's mental state was poor. During his interview
with Investigator Kay, Smith was confused, made inconsistent statements and was
forgetful. Appellant points out that Smith believed that John Kennedy was the President
of the United States, could not recall what year he got married and could not identify
appellant from a six-pack photographic line-up even though he had known him for 15
years. Appellant also points out that Smith was at times confused about the events of the
day of the attack, stating that Dinkins arrived before appellant, that his nephew Nato was
at the house making coffee and that appellant talked to Smith about money on the
telephone while he was at Smith's house. We understand appellant's argument to be that
for a hearsay statement to be trustworthy and reliable under section 1380, the proponent
of the statement must establish that the declarant was competent to be a witness and had
personal knowledge of the events to which he testified.
We agree that the questions of trustworthiness and reliability are intertwined with
the issues of whether the declarant is competent to be a witness and has the required
personal knowledge. (Idaho v. Wright, supra, 497 U.S. at pp. 824-825.) In Wright, the
At trial, defense counsel stated: “I’m not saying Mr. Smith is fabricating
Court emphasized that a hearsay declarant must be capable of "receiving just impressions
of the facts respecting which [she would be] examined." and "of relating them truly."
(Ibid.) Lack of these two abilities, both requirements for witnesses under the applicable
state law of Idaho, would have rendered the declarant's out-of-court statements
California law regarding the a witness's competency and personal knowledge
contains requirements similar to Idaho law. In order to be qualified as a witness, a person
must be capable of expressing himself concerning the matter so as to be understood.
(§ 701, subd. (a)(1).) A witness's competency to testify is determined by the trial court
and will be upheld in the absence of a clear abuse of discretion. (People v. Lewis (2001)
26 Cal. 4th 334, 360.) Here, the trial court reviewed the videotape and determined that
Smith was competent to be a witness. We reach the same conclusion from our review of
the videotape transcript. Smith was able to articulate facts so as to be understood.
Further, Evidence Code section 702 requires that a witness at trial have "'a present
recollection of an impression derived from the exercise of the witness's own senses.'
[Citations.]" (People v. Lewis (2001) 26 Cal. 4th 334, 356.) If there is evidence that the
witness has the capacity to perceive and recollect, the determination whether he in fact
perceived and does recollect is left to the trier of fact. (People v. Lewis, supra, 26
Cal.4th at p. 356.) This outcome is mandated by section 403. (§ 403, subd. (a)(2).)
Under that section, the trial court must admit the proffered testimony of a witness upon
introduction of evidence sufficient to sustain a finding that the witness has personal
knowledge of the subject matter of his testimony. (§ 403, Comment.) We review the
trial court's determination of the existence of the preliminary fact of personal knowledge
under an abuse of discretion standard. (People v. Lucas (1995) 12 Cal.4th 415, 466.)
Here, as the trial court recognized, Smith clearly had the capacity to perceive and
recollect. He could hear the investigator's questions and when the investigator held up a
number of fingers, Smith saw the fingers and gave the correct number. He volunteered
repeatedly that he had been struck with a hammer. Smith also clearly had the capacity to
recollect. He recalled, for example, that he was married, that his wife was in bed with
Alzheimers and that he had a nurse named Dinkins. He gave a plausible account of the
circumstances of the crime, including the fact that he had been hit on the head, and that
appellant had attacked him.
Thus, if Smith were a witness at trial, the trial court would have been required to
admit his testimony and let the jury decide whether and to what extent to accept it. "'The
fact that a witness has made inconsistent and exaggerated statements does not indicate an
inability to perceive [or] recollect. . . .' [Citation.] Nor does a witness's mental defect or
insane delusions necessarily reflect that the witness lacks the capacity to perceive or
recollect. [Citations.] A witness's uncertainty about his or her recollection of events does
not preclude admitting his or her testimony. [Citation.]" (People v. Lewis, supra, 26
Cal.4th at pp. 356, 357 [where witness's testimony "may have consisted of
inconsistencies, incoherent responses, and possible hallucinations, delusions and
confabulations," but he gave plausible account of circumstances of crime, there was no
basis for court to exclude testimony; rather, it was for jury to determine whether witness's
recollections were true.].)
The trial court reviewed the videotape before admitting it into evidence.
Following review of the videotape, the trial court ruled as follows:
"I did carefully view and quite frankly I was concerned about the condition of the
witness as he was giving his statements, and particularly when he appeared to have some
problems. But understanding the type of injury that the victim had suffered certainly and
at his age and elderly people in general the interview was conducted, as I perceived it, in
a very non-informational way. In other words, the investigator never gave the
information to Mr. Smith. Mr. Smith always came up with it, tortured at times, true but
he came up with the information himself almost the entire way. He would get confused.
He would have to have questions repeated. He would wander off, that's correct. But
when it came to what was the instrument used on him, he knew. He didn't know exactly
how many times. He didn't know exact front and center, but he knew what hit him was
"In terms of who did it, he knew exactly. And he stated it over and over again. It
was only at the very, very end after two and a half hours of this man just sitting there and
he had only got a little bit of water at the end of the interview. You know, that's a lot for
an elderly injured gentleman to have to go through.
"And quite frankly, there is no indication of him sitting there conjuring up the
defendant's name from clouds. There's no indication that he's making up the scenario.
There are indications of some confusion, yes. But the reliability goes to whether or not
this person has the state of mind to fabricate. And I don't see in the tape. I think it is
"I also understand you have an argument in terms of cross-examination.
"The indicia of reliability goes to whether or not somebody is going to
purposefully mislead and fabricate. There's no indicia of that in this interview. In terms
of cross-examination, that issue was addressed. I'm certain when the Legislature decided
to pass the statute . . . specifically in a situation where the person is not available [and]
can't be cross-examined they knew that.
"This is the exception to the hearsay rule because of that fact. Because of the age,
and the situations. We do have corroborating evidence here. We have DNA
corroborating evidence here. So it's not the testimony of the victim is really not the only
source of that information. You have that information through other bits and pieces of
evidence. And so therefore, I think that under 1380 it is sufficient indicia of reliability
and trustworthiness that the video will be allowed to be viewed by the jurors.
"I think under state and federal grounds, it is sufficiently [trustworthy] to be
entered into evidence."
The trial court's analysis demonstrates that the court was aware of the applicable
law and considered it in reaching its decision to admit the videotape into evidence. We
have reviewed the transcript of the videotape. We agree that there is nothing that
indicates that Smith was lying. And we also agree that Smith, though confused and
forgetful at time, was able to recollect and communicate facts that he had perceived and,
therefore, was competent to be a witness. And we agree, too, that Smith's statements
were corroborated by DNA evidence that established that Smith's blood was found on
appellant's clothing and boots.
We, therefore, conclude that Smith's hearsay statements were both trustworthy and
reliable and properly admitted pursuant to Section 1380. The trial court did not err in
allowing the videotape and the statements contained on the tape into evidence.
b. Confrontation clause claim
Appellant's claim that the admission of Smith's statements violated his rights under
the Confrontation Clause of the United States Constitution is premised on his belief that
those statements do not contain sufficient indicia of trustworthiness. As we discuss,
supra, the statements do contain sufficient indicia of trustworthiness. Admission of
hearsay that is trustworthy and contains sufficient indicia of reliability violates neither
due process or the confrontation clause. (Idaho v. Wright, supra, 497 U.S. at pp. 819820; In re Lucero L., supra, 22 Cal.4th at pp. 1243-1244.) Further, cross examination
would not have added anything because Smith's confusion was manifest and could be
considered by the jury.
……………[The portions of this opinion that follow (parts 2 and 3) are deleted from publication.]…………….
2. Attempted manslaughter instruction
Appellant contends that the trial court erred prejudicially in refusing his request
for an instruction on attempted voluntary manslaughter. He further contends that this
error violated several of his rights under the U.S. Constitution. We see no error.
a. State law
Voluntary manslaughter based on a heat of passion is a lesser, necessarily included
offense of intentional murder. (People v. Breverman (1998) 19 Cal.4th 142, 154.) When
a defendant is charged with murder, the trial court has a sua sponte duty to instruct on
voluntary manslaughter whenever the evidence is such that a jury could reasonably
conclude that the defendant killed the victim as a result of a heat of passion, that is
whenever there is substantial evidence for heat of passion. (Id. at pp. 159-160.)
"Substantial evidence," in this context is evidence from which a jury composed of
reasonable persons could conclude that the lesser offense, but not the greater, was
committed. (Id. at pp. 162, 177.) The trial court is not obligated to instruct on theories
that have no such evidentiary support. (People v. Breverman, supra, 19 Cal.4th at p. 162;
People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
Here, the trial denied appellant's request for an instruction on attempted voluntary
manslaughter, stating: "The People have argued and the court agrees that since there is a
complete and absolute denial of even being present at the time that the assault was
committed, that there is no evidence as to provocation or heat of passion or sudden
quarrel. [¶] Therefore, it would not be warranted based on the state of the evidence to
give [attempted voluntary manslaughter instructions]."
Appellant contends, correctly, that a court has a sua sponte duty to instruct on all
necessarily included offenses which are supported by the evidence even if they conflict
with the central defense theory of the case. (People v. Breverman, supra, 19 Cal.4th at p.
162.) Thus, appellant is correct that his denial of being present at the attack was not a bar
to an attempted manslaughter instruction. However, regardless of a defendant's theory of
the case, he is entitled to an instruction on a necessarily included offense only if such an
instruction is supported by the evidence. (Ibid.) "Substantial evidence" in this context "is
evidence sufficient to deserve consideration by the jury, that is evidence that a jury could
find persuasive." (People v. Barton (1995) 12 Cal. 4th 186, 201, fn. 8.)
"[T]he factor which distinguishes the 'heat of passion' form of voluntary
manslaughter from murder is provocation. The provocation which incites the defendant
to homicidal conduct in the heat of passion must be caused by the victim." (People v. Lee
(1999) 20 Cal.4th 47, 59.) "Heat of passion arises when 'at the time of the killing, the
reason of the accused was obscured or disturbed by passion to such an extent as would
cause the ordinarily reasonable person of average disposition to act rashly and without
deliberation and reflection, and from such passion rather than from judgment.'"
(People v. Barton, supra, 12 Cal. 4th at p. 201.)
Appellant contends that he was entitled to the instruction because there is
substantial evidence from which a jury could infer that "Smith verbally abused appellant
on the intimate subject of his grandson to the point where appellant acted from passion
rather than judgment."
In support of this contention, appellant points to testimony by Dinkins that Smith
could be very "critical" of those who worked for him and regularly got into "debates"
with appellant. (Dinkins does not use the word "critical" at the location in the record
specified by appellant. At that location, she calls Smith "difficult.") He also points to his
own testimony to show that he and Smith were having a "debate" on the morning of the
attack about appellant's purchase of a crib for his grandson, during which Smith told
appellant that he was spending too much money on a crib, and that this "debate" lasted
over the course of the morning. He notes that at one point, Smith uses the word
"showdown." Finally, he points to his testimony that after Smith was injured, Smith said:
"I didn't mess with your boy, your boy. All right?"
We see nothing in the evidence cited by appellant which would permit a
reasonable jury to be persuaded that Smith did or said anything so that at the time of the
killing, the reason of appellant was "obscured or disturbed by passion to such an extent as
would cause the ordinarily reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion rather than from judgment."
(People v. Lee, supra, 20 Cal. 4th 47, 59.)
Although appellant appears to attach some import to the word "debate," we see
nothing in its one use, by Dinkins, to assist appellant. When asked whether Smith and
appellant would argue with each other, Dinkins replied: "It was more of a debate on
certain issues." There is nothing in this statement to suggest heated emotions. Further,
Dinkins did not testify that Smith and appellant had a debate (or an argument) on the day
of the incident. Dinkins testified that appellant and Smith got along "fairly well." She
had never seen them "get physical" with each other.
Smith told police that he did not have an argument with appellant the morning of
the attack. Appellant's own testimony about the crib discussion contains nothing to
support an inference that he and Smith became involved in an argument. Appellant
testified that Smith "was joking about the baby bed" on the morning of the incident. He
also testified that he had a "discussion" about the crib the previous day and that Smith
had advanced him $160 for the crib. On the day of the incident, he and Smith had a
"conversation" about the crib. The conversation was about "how much money
[appellant] was spending on the bed. It was too much money." Appellant added that
Smith would make a comment about anybody spending over five or ten dollars.
Appellant testified that he was not upset and that this was "a normal discussion."
Appellant testified that later in the morning, Smith gave him another $100 for the crib,
stating: "Well, you always be spending money on whatever."
At one point in his videotaped interview, Smith stated; "Mr. Tatum, I thought he
was the best friend I had." Then he added: "And on the . . . showdown, he is the worsest
one I seen like I had." Investigator Kay then asked Smith to tell him about the
showdown. Smith simply said that there was nothing he would not do for appellant. It is
not clear what Smith was trying to convey by his reference to the showdown, but we see
no basis for understanding Smith's remark to refer to an argument or verbal abuse on the
day of the attack. Similarly, Smith's references to "your boy" is baffling, but we see no
basis for the jury to infer that Smith was really making some comment related to a crib
for appellant's new-born grandson.
While appellant is correct that a jury could accept or reject any or all of his
testimony or the detective's testimony about Smith's statements, no combination of partial
acceptance and rejection of those statements provides a factual basis for inferring that a
heated argument took place. The best possible combination, an acceptance of the
testimony showing that Smith could be difficult and that he told appellant that appellant
was spending too much money on a crib does not support a reasonable inference that
"verbal abuse" or a heated argument took place which caused appellant to act from
b. Federal law
Appellant contends that the trial court's refusal to instruct on attempted voluntary
manslaughter deprived him of an instructions on every element of the charged crime of
attempted murder (which would, appellant believes, include the element of absence of
provocation if a heat of passion voluntary manslaughter instruction were also given),
denied him the opportunity to have the jury consider an alternate defense theory, denied
him effective assistance of counsel by preventing his counsel from arguing an alternate
defense theory, violated his right to due process and trial by jury by forcing the jury into
an all-or-nothing choice between conviction for attempted murder and acquittal, and was
Hicks error in that it was such a plain misapplication of state law as to deprive him of
Respondent contends that appellant has waived these claims by failing to raise
them in the trial court. Respondent does not cite, and we are not aware of, any case
holding that when a trial court has a duty to give an instruction on its own motion and
fails to do so, a defendant may only raise claims that the trial court's failure violated the
U.S. Constitution if he specifies those claims in the trial court. Respondent also does not
cite, and we are unaware of, any cases holding that a defendant whose request for a jury
instruction is refused must specify any federal constitutional error or be forever barred
from raising those claims on appeal. The general rule is that an appellate court "may . . .
review any instruction given, refused or modified, even though no objection was made
thereto in the lower court, if the substantial rights of the defendant were affected
thereby." (Pen. Code, § 1259.) That is certainly appellant's claim here.
All of appellant's claims are based on his belief that there was substantial evidence
of provocation or heat of passion, and that the trial court therefore erred under state law
in refusing to give an attempted voluntary manslaughter instruction. As we discuss,
supra, there was no evidence and no error. Appellant's federal claims therefore fail.
Hicks v. Oklahoma (1980) 447 U.S. 343.
3. Unanimity instruction
Appellant contends that three distinct criminal acts supported the assault with a
deadly weapon charge and deadly weapon enhancement, and that the trial court erred in
failing to instruct jurors that they were required to agree unanimously on which weapon
appellant used. He further contends that this error violated several of his rights under the
a. State law
When a defendant is charged with a single offense, but there is proof of several
acts, any one of which could support a conviction, the jury generally must be instructed
that all the jurors must agree that the defendant committed the same act or acts. (See
People v. Diedrich (1982) 31 Cal.3d 263, 281-282.)
The amended information alleged in count II pursuant to Penal Code section 245,
subdivision (a)(l) that appellant assaulted Mr. Smith with a deadly weapon "to wit, A
HAMMER, A SHOVEL, AND SKILLET[,]" and as to all counts pursuant to Penal Code
section 12022, subdivision (b)(l), that appellant "personally used a deadly and dangerous
weapon(s), to wit, hammer, shovel, skillet[.]" Evidence was offered that all three items
were found at the scene. There was very strong evidence that the hammer was used to hit
Smith. Smith so testified, and Smith's doctor testified that the injury to appellant's head
with consistent with being caused by the hammer found at the scene. There was no direct
evidence that the skillet or shovel was used to hit Smith. We question whether it would
be reasonable to infer such use from the items' presence at the scene. Under such
circumstances, we are not convinced that a unanimity instruction was required.
Assuming for the sake of argument that a unanimity instruction was required, the
omission of this instruction was clearly harmless under any standard of review.
The jury filled out verdict forms for all three counts stating: "We further find the
allegation that in the commission and attempted commission of the above offense the
defendant, . . . personally used a deadly weapon, to wit a hammer, within the meaning of
Penal Code Section 12022(b)(l) to be true." Thus, the jury did agree unanimously on the
deadly weapon which appellant used for purposes of the weapons enhancement.
We see no reason to believe that the jury did not also agree unanimously that the
same deadly weapon, the hammer, was used in the assault.
b. Federal claims
Appellant claims that the failure to give a unanimity instruction violated his Sixth
Amendment right to a jury and his Fourteenth Amendment right to due process and was
such a plain misapplication of state law that it was Hicks error. These claims are
premised on appellant's belief that there is a possibility the jury did not unanimously
agree on which weapon he used. As we discuss, supra, we see no possibility at all of
such a disagreement. Thus, appellant's claims fail.
………………………….…………[The remainder of this opinion is to be published.]……………………..…….
The judgment is affirmed.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIGNON, Acting P.J.
Hicks v. Oklahoma, supra, 447 U.S. 343.