People v. Somersall (1999)

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[No. A081134. First Dist., Div. Four. Nov 1, 1999.]

THE PEOPLE, Plaintiff and Respondent, v. LEO ADAM SOMERSALL, Defendant and Appellant.

[No. A086816. First Dist., Div. Four. Nov 1, 1999.]

In re LEO ADAM SOMERSALL on Habeas Corpus.

[Modification of opinion ( 75 Cal. App. 4th 657 ) on denial of petition for rehearing.]

OPINION

HANLON, P. J.-

It is ordered that portions of part II.C. of the opinion filed herein on September 30, 1999, be modified as follows:

1. On line 10 of the second paragraph of part II.C., which begins on page 39 of the slip opinion [75 Cal. App. 4th 693, advance report, 2d par., lines 11 and 12], the phrase "some form of manslaughter" is changed to "voluntary manslaughter"; and on line 11 of the same paragraph, the word "voluntary" is added between the words "and" and "manslaughter," such that the paragraph reads as follows:

The prosecution's theory was that appellant and his companions planned to rob Garcia and his friends and that, during a fight that subsequently broke out, appellant pursued Garcia to the area of the fence and, aided by Kenny, stabbed Garcia to death. As to count one, the prosecution argued that the evidence was sufficient to support a conviction of first degree murder but, if not, it would at a minimum support a conviction of second degree "implied malice" murder. It is quite clear from the juror depositions, and from the verdicts themselves, that the jury unanimously found the evidence of premeditation and deliberation insufficient for a conviction of first degree murder. Thus, the jury's decision on count one boiled down to a choice between second degree murder, voluntary manslaughter, and acquittal. In choosing between second degree murder and voluntary manslaughter, the jury's assessment of the evidence of "malice" was critical to their decision.

2. On line 5 of the second full paragraph on page 45 of the slip opinion [75 Cal. App. 4th 698, advance report, 2d par., lines 5 and 6], the phrase [76 Cal. App. 4th 186b] "turning to consideration" is changed to "it could finally decide whether to convict appellant"; and a new footnote 10 is added to the same paragraph after the cite to CALJIC No. 8.75, such that the paragraph reads as follows:

We also reject respondent's claim that the jury considered and necessarily rejected a charge of manslaughter when it found appellant personally used a knife and inflicted great bodily injury upon Garcia. On the contrary, we assume the jury followed the trial court's instructions to come to unanimous agreement about the various forms of murder before it could finally decide whether to convict appellant of any type of manslaughter. (See CALJIC No. 8.75.) 10 Furthermore, neither of these enhancements requires subjective knowledge and conscious disregard of danger to human life. Moreover, respondent's claim that appellant undisputedly did all the stabbing comes perilously close to being frivolous. The red-handled knife was found in Kenny's room, under Kenny's bureau, and at least one witness testified that Kenny had admitted stabbing Garcia.

3. A new footnote 11 is added to the end of the last sentence of the last paragraph of part II.C. on page 46 of the slip opinion [75 Cal. App. 4th 699, advance report, line 3], such that the paragraph reads as follows:

Finally, we cannot say beyond a reasonable doubt that no jury would have found appellant guilty of a lesser offense, such as voluntary manslaughter, had the jury applied the correct definition of "malice." (See Yates v. Evatt (1991) 500 U.S. 391, 402-405 [111 S. Ct. 1884, 1892-1894, 114 L. Ed. 2d 432].) There was ample testimony that, if considered and believed, would have supported a verdict of voluntary manslaughter and a finding of absence of malice. That is, several witnesses described how one of the Mexican men, probably Garcia, slashed appellant's face with a knife during a fight. In addition, the jury depositions revealed that at least one juror and possibly others were torn between murder and manslaughter until they reviewed the dictionary definition. On this record, it would not have been unreasonable for the trier of fact to conclude, upon rejecting the prosecution's evidence of "malice," that appellant killed Garcia upon sudden provocation and in the heat of passion, or in an honest but unreasonable belief that he needed to [76 Cal. App. 4th 186c] defend himself against the knife-wielding victim. In short, respondent has not demonstrated that the jury misconduct in this case was harmless beyond a reasonable doubt. 11

4. The footnotes are renumbered accordingly.

This modification does not effect a change in the judgment.

The petition for rehearing is denied.

FOOTNOTE 10. Pursuant to CALJIC No. 8.75, the jury was free to-and apparently did-consider the voluntary manslaughter theory before it unanimously agreed to convict appellant of second degree murder. However, there is nothing in the juror depositions indicating that they ever reached unanimous agreement on the charge of voluntary manslaughter. And we have no way of knowing whether the jury would have finally reached a unanimous verdict on that charge if it had continued deliberating without consulting a legal dictionary. Under CALJIC No. 8.75, the jury could not convict appellant of voluntary manslaughter until it had unanimously agreed to acquit him of both first and second degree murder. Obviously, the jury did not get that far.

FOOTNOTE 11. In a petition for rehearing, respondent contends that the proper remedy, upon reversing the judgment of conviction as to count one, is to modify the judgment to a conviction for voluntary manslaughter should the state choose not to retry the matter. (See e.g., People v. Benway (1985) 164 Cal. App. 3d 505, 513. [210 Cal. Rptr. 530].) We reject this argument. Ignoring for the moment the dissonance between this claim and respondent's previous argument that the jury necessarily rejected the charge of voluntary manslaughter, we note that there are two crucial differences between the "implied malice" murder found here, and voluntary manslaughter. First, intent to kill is an essential element of voluntary manslaughter, but not of second degree murder under an implied malice theory. Because we have some unusual insight into the jury deliberations in this case, we know that the jurors struggled mightily with the issue of appellant's mens rea with respect to the killing of Garcia and may have ejected the prosecution evidence of intent to kill. Second, we presume the jury followed the court's instructions and did not consider the evidence of voluntary intoxication with respect to the issue of "implied malice" but that, given a chance to do so, it would be free to find that voluntary intoxication negated the "intent to kill" required for voluntary manslaughter. (See ยง 22, subd. (b).) If it so found, the only supportable verdicts would be involuntary manslaughter or an acquittal. (People v. Saille (1991) 54 Cal. 3d 1103, 1116-1117 [2 Cal. Rptr. 2d 364, 820 P.2d 588].) At bottom, the problem with respondent's argument for rehearing is that the second degree murder verdict in this case did not definitively resolve either of these issues.