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Lee v. Kramer

November 9, 2010




Petitioner Lee is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner is currently serving a sentence of 30 years to life following his 2006 second degree murder conviction in the Sacramento County Superior Court. In the pending petition, petitioner presents various claims challenging the constitutionality of that conviction. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.


On direct appeal, the California Court of Appeal, Third District, summarized the evidence admitted at petitioner's trial. Petitioner is the defendant referred to therein:

In late 2003, Crystal Wells, a 40-year-old woman with a drug problem and a history of theft, lived in a home owned by her mother Dorothy Shaver on Clay Street in Sacramento. Shaver rented the house to women who have had problems with drugs. Jacqueline Avery was the only other tenant of the Clay Street house to be home on Christmas night 2003.

In the early morning hours of December 26, 2003, Avery was awakened by the sound of a table tipping over. She heard Wells say in a loud voice, "Get the fuck out of here." Avery got up and went to see what was going on. When she got to the door to the kitchen, Avery saw Wells standing near the open back door looking outside. Wells said somebody had broken into the house and that she had been stabbed. Wells asked Avery to call her mom, who lived next door, and to tell her she had been stabbed. Wells went upstairs to her bedroom.

Avery called Shaver, but did not tell her that Wells had been stabbed. When Shaver came over four to seven minutes later, she and Avery went upstairs where they found Wells collapsed on her stomach on the floor. Shaver called 911 and, at the operator's direction, started CPR. The police and an ambulance arrived, but it was too late; Wells was dead.

An autopsy of Wells showed she had an inch-long knife wound on her upper right arm, a two-inch-long knife wound at the base of her neck, and a stab wound to her left chest. The first two wounds were superficial and not life-threatening, but the stab wound to her chest penetrated her heart, causing her death. The angle of the wound was from front to back, approximately 20 degrees from right to left, and approximately 10 degrees downward from horizontal. A person with such a wound to the heart could talk, stand, and walk for some brief period of time before becoming unconscious. Wells also had small abrasions on her forehead and left thigh. Wells's blood-alcohol level measured 0.13 percent and she had methamphetamine, cocaine, and cocaine metabolite in her system when she died.

Police found evidence of a struggle in the house, including a large area rug askew and a telephone stand knocked over. A button with some threads attached to it was found on top of the rug. In Wells's bedroom upstairs, police found two used narcotics smoking pipes. A piece of foil with residue and soot was found under the edge of a chaise, a baggie containing methamphetamine was found behind the back of the chaise, and on top of a storage chest was a cell phone. Defendant's name was displayed on the face of the phone. The police looked at the call list on the phone, which led them to look for a woman named Denise Hysaw and eventually led them to an address on Huron Street.

Police arrived at the Huron Street address around 8:15 p.m. that evening. When police told Charles Fields, who answered the door, that they were looking for Hysaw and defendant, Fields directed them upstairs to where defendant was sleeping. After waking defendant, police asked him to come downtown to make a statement. In the subsequent interview with police, defendant denied being at Wells's house the previous night or any other time. Defendant claimed he did not know what the police were talking about when they asked him for his story of what happened at the Clay Street house. He denied knowing Wells or anyone living at the house. When police pointed out defendant's shirt was missing a button, defendant said it had been missing for years. At trial, a criminalist testified the button found at the crime scene likely came from defendant's shirt.

As police were leaving the Huron Street address, Hysaw walked up. She was taken in and questioned. Hysaw testified at trial that she called defendant's cell phone on the night of December 25/26. Defendant said he was about two blocks away and they agreed to meet. However, defendant did not appear when Hysaw walked in the direction she expected to meet him. Hysaw walked to the house on Huron Street where she was invited by Fields to come inside and wait. Fifteen to 20 minutes later, Hysaw saw defendant walking up to the house. When he came in the door, Hysaw saw he had a small knife in his hands. There appeared to be a little blood on the tip of the knife. Defendant went into the kitchen to wash his hands and the knife. Hysaw asked defendant several times if he had any methamphetamine without any response from defendant. Eventually, defendant said, "No, I don't have any shit [drugs]. It's gone. She took it." Later defendant added he stabbed or "shanked" her. Defendant said, "I can't believe that bitch took my shit. She took it. I can't believe that."

When Hysaw asked defendant what had happened, defendant explained that on the way to meet Hysaw, a woman (Wells) came up to his car. Defendant decided to sell the woman the drugs he was going to share with Hysaw. The woman said she needed to go to her house to get the money, so defendant drove her back to her house. Defendant and the woman went inside and upstairs as defendant had agreed to let the woman try the drugs. The woman got her paraphernalia and smoked some of the drugs. When defendant glanced over, however, all the drugs were gone. He asked the woman if she wanted to go ahead and buy the drugs, but she said, "No, it's time for you to go." Defendant told her he would be glad to go as soon as he got either his drugs or the money. The woman repeated, "No, it's time for you to go." She stood up and walked to the door. Defendant looked for his stuff, but when he did not see it, he told the woman he wanted his stuff. The woman pushed and/or tugged him, telling him, "You gotta go. You gotta go." Defendant demanded his stuff before he would go. Then they began to tussle. Defendant told Hysaw he stabbed the woman once in the neck and once in the chest. (Hysaw told police the night she was questioned that defendant said he stabbed or cut the woman three times.) According to Hysaw, after this conversation defendant noticed his cell phone was missing. He thought he left it in his car, but Hysaw checked the car and it was not there.

A few hours later, Hysaw saw a news report of the incident indicating the victim was dead. She told defendant of the report. A couple of hours later, defendant and Hysaw left the Huron Street house to look for drugs. At one point, they visited defendant's brother, Floyd Lee. Hysaw heard defendant ask Lee whether Lee had heard about the stabbing. Defendant told his brother he was involved. When his brother asked what happened, defendant told him he was letting her try the drugs and the next thing he knew, the drugs were gone. Defendant told his brother he still had the knife. Lee told defendant to get rid of it. Hysaw did not actually see the knife being turned over, but it sounded like the knife was thrown out. Defendant and Hysaw left, found some drugs and went back to the house on Huron Street where they did the drugs, had sex and took a nap. Defendant was still asleep when Hysaw woke up and left for the store. When she returned, she saw police cars in front of the house and officers were bringing defendant out in handcuffs. Defendant's brother (Lee) testified defendant and a woman came over to his home on the morning of December 26, 2003. Defendant looked tired and said it had been a bad night. Defendant handed Lee a little knife and asked Lee to keep it for him. Lee put it in a coat pocket. Lee denied wrapping it in a towel before putting it in the pocket. Lee testified defendant never said he hurt anybody. Police later contacted Lee, who led them to the knife, which the police found wrapped in a towel and placed inside a pocket of a jacket inside a closet. According to the forensic pathologist, the knife seized by the police could have inflicted Wells's injuries. Criminalist Michael Toms testified defendant's urine sample at the time of his arrest showed amphetamine, methamphetamine and cocaine metabolite. Wells's autopsy blood sample showed methamphetamine, cocaine and cocaine metabolite. The effects of a single dose of methamphetamine or cocaine in the first four hours included mild euphoria, excitation, exhilaration, increased strength, increased alertness, rapid speech, decreased appetite, motor restlessness, and overall poor impulse control. In the last four to 24 hours, as the person was coming down, the person would experience nervousness, anxiety, paranoia, possibly agitation and aggression, an intense craving for more drugs, and ultimately extreme fatigue. If a person took more than a single dose, the effects could be amplified.

Defendant testified on his own behalf. He testified he drove to Del Paso Heights around 2:30 a.m. on December 26 looking for a prostitute. He had in his possession one-sixteenth of methamphetamine and a $20 piece of cocaine. Defenant saw three women standing near the corner of Grand and Clay. He recognized two of them as prostitutes. He pulled over and parked. The woman he did not know, who turned out to be Wells, came over to his car. They discussed the possibility of a date. Wells got into defendant's car, and they agreed to a price of $20. Defendant drove to the Huron Street house, but it was occupied, so they went to Wells's house. On the way Wells asked defendant if he had any drugs.

When they arrived at the Clay Street house, Wells seemed fidgety and told defendant to hurry up. She collected a smoking pipe from a BBQ pit and they went inside the house and upstairs to her bedroom. Wells asked if they could smoke some of the dope before they had sex and defendant agreed. They smoked defendant's cocaine and shared some of the methamphetamine. Defendant stripped to his underwear and Wells took off her pants. She began dancing around in her underwear. Defendant asked to use the bathroom and Wells directed him downstairs.

Defendant went down the stairs, but it was dark, so he turned around and went back upstairs to ask Wells to show him where the bathroom was located. When defendant reentered the bedroom, Wells had her back to him. She had defendant's pants and was going through the pockets. Defendant startled her when he asked her what she was doing. She turned around and her whole demeanor changed. She appeared to be mad at defendant for some reason. Wells threw defendant his pants and told him to get dressed and get out. Defendant said okay and started putting his clothes back on. Wells went downstairs.

As defendant followed after Wells, he checked his jacket pocket for the drugs, money and cell phone that had been in the pocket earlier. It was all gone. At the bottom of the stairs, defendant saw Wells standing at the open back door. She had her right hand behind her back. Defendant asked where his belongings were. Wells told him to just go ahead and leave. Under the impression she was hiding his belongings behind her back, defendant reached for Wells's right arm with his left arm. Wells suddenly drew back and defendant saw she had a knife in her hand. Wells lunged at defendant, who being scared and panicked, immediately grabbed her wrist to keep from being stabbed. They struggled over the knife. With her left hand, Wells repeatedly hit defendant on the top of his head. She was hollering and cussing, telling him to "get the fuck out." Wells forced defendant backwards. Defendant tripped over something, slipped and fell on his back. Defendant still had a hold of Wells's arm and as he fell, defendant pulled Wells down on top of him and the knife. Defendant kept twisting Wells's wrist to get the knife out of her hand. When he succeeded, he rolled over and pushed Wells off of him. He jumped up and ran out of the house. He had no idea Wells was hurt. He looked back when he reached his car and saw Wells at the door. He heard her cussing and saying, "I called the fucking police." If he had known she was hurt, defendant testified he would have tried to get medical assistance.

When he returned to Huron Street, defendant claimed he told Hysaw and Fields that he had an altercation with a female at her house, she had pulled a knife on defendant, they struggled and defendant took the knife from her. Prior to leaving Fields's house, defendant heard news of a break-in or something in the same area in which he had been. Defendant went out to the car and got the knife. He noticed a little blood and told Fields, "Man, you know, the lady, she must have got cut or something." He put the knife in his pocket.

Later, when defendant was at his brother's home, his brother asked defendant if it was possible that the news was about the same incident defendant had been involved in. Defendant said no. Lee asked defendant to take Hysaw home and then come back to discuss it. As defendant was leaving, defendant handed the knife to Lee to hold onto until defendant got back. Defendant drove back to Fields's house. He was so tired that he laid down and fell asleep. He remained asleep until an officer shook his foot to wake him up. Defendant admitted two felony convictions, for a theft in 1998 and for passing bad checks in 2001. He admitted lying to the police when he was questioned that night. According to defendant, he did not want to discuss the matter and it was his way of ending the conversation.

On rebuttal, Shaver testified her daughter was left-handed. The parties stipulated a doctor had tested Wells's grip strength during a medical examination in 2002, which also indicated she was left-handed. (People v. Lee, 2007 WL 2358709 at 1-5 (Cal.App. 3 Dist. 2007).

A jury found petitioner guilty of second degree murder, and further found true an allegation that he used a knife as a deadly weapon in committing the offense. The trial court found that petitioner had a prior felony conviction for assault with a deadly weapon that qualified for enhancement purposes as a serious felony (see Cal. Penal Code §667(a)), and as a prior "strike" (see Cal. Penal Code §667(b)-(i)). Petitioner was sentenced to an indeterminate term of 30 years to life, plus an additional determinate term of six years.


Petitioner claims, though not in this order, that (A) the trial court erred in violation of his right to due process and a fair trial when it ruled that the defense's proffered expert testimony was character evidence about the victim that would open the door to evidence of petitioner's character for violence; (B) the court made an instructional error; (C) the prosecutor committed prejudicial misconduct during closing argument; (D) the trial court's responses to the jury's questions about heat of passion were deficient or misleading; (E) trial counsel rendered ineffective assistance; and (F) the cumulative effect of these errors deprived petitioner or a fair trial.


An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Additionally, this petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).


A. Evidentiary Ruling on Dr. Globus's Expert Testimony

Pursuant to the California Code of Evidence, character evidence is generally inadmissible to prove a person acted in conformity with it on a given occasion. Cal. Evidence Code §1101(a). Section 1103 sets forth exceptions to this general rule. One exception allows a criminal defendant to offer evidence of the victim's character to show the victim acted in conformity. Cal. Evidence Code §1103(a)(1). If the defendant offers evidence showing the victim "had a character for violence or a trait of character tending to show violence," then the prosecution may offer evidence of the defendant's violent character to show the defendant acted in conformity. Cal. Evidence Code §1103(b).

At trial, Wells's mother Shaver testified that her daughter was "bipolar kinda. They were trying to test her for certain things." (Reporter's Transcript ("RT") at 103.) Shaver explained that Wells was made aware she had "a possibility of bipolar" disorder about three or four months before her death. (RT at 109.) Another family member testified that Wells took medication for bipolar disorder. The prosecutor and petitioner's attorney both indicated to the court this was the first time they had heard such evidence.

Defense counsel obtained Wells's medical records and had them reviewed by Dr. Albert Globus. Counsel indicated to the court he wanted Dr. Globus to testify about the effects of cocaine and methamphetamine on a person with bipolar disorder. Specifically, counsel expected Dr. Globus to testify that Wells's bipolar disorder, combined with her use of cocaine and methamphetamine, could lead to her becoming aggressive. (See Clerk's Transcript ("CT") at 147-148.) This testimony would support the defense theory of the case that petitioner acted in self-defense in reasonable fear of Wells.

The prosecutor did not dispute the admissibility of Dr. Globus' testimony, but argued that Dr. Globus's testimony would "open the door" to evidence of petitioner's character for violence pursuant to section 1103 of the California Evidence Code. (RT at 582.) Petitioner had previously incurred two prior violent convictions including one involving a firearm.

The trial court ruled Dr. Globis's proffered testimony admissible and relevant to petitioner's theory of self-defense. The court further ruled that Dr. Globus's proffered testimony was character evidence under state law that put the victim's character at issue. Consequently, if Dr. Globus gave the testimony, the prosecution would be allowed to impeach petitioner with the two prior convictions for acts of violence. Ultimately, the defense did not offer Dr. Globus's testimony.

On direct appeal, petitioner claimed that the trial court's ruling was an abuse of discretion and also that it violated his right to due process and right to present a defense. The California Court of Appeal, Third District, disagreed with petitioner's argument that Dr. Globus's proposed testimony was only offered to show Wells's state of mind at the time of the crime and thus was not character evidence within the meaning of section 1103 of the California Evidence Code. Rather, the state court found,

[i]t is clear from defendant's offer of proof and arguments that defendant intended to use Globus's testimony to show Wells had a mental condition or personality traits that caused her to have a propensity or a disposition to act irritably, irrationally, and aggressively and, therefore, she was likely to have acted in accordance with such disposition or traits in her actions towards defendant that night after smoking drugs with him. Indeed, defendant argued such testimony would be used to support his assertion that he reasonably feared for his life and or safety. Defendant's proposed use of Globus's testimony supported defendant's claim of self-defense because it was directed at Wells's character for violence, that is, her actions reasonably caused defendant to fear for his life. If Wells's actions did not include any suggestion of violence, they would not have been relevant to support defendant's claim of his reasonable fear of Wells. Defendant did not propose to limit his use of the testimony to show Wells's state of mind; he wanted the evidence admitted in order to support his perception, that is, his state of mind of reasonable fear.

(People v. Lee, 2007 WL 2358709 at 7 (internal quotations omitted).) Thus, the state appellate court concluded that the trial court had correctly ruled that introduction of evidence regarding Wells's character for aggression or violence would open the door for the prosecution to admit evidence of defendant's character for violence.

The state appellate court's rejection of petitioner's claim is not contrary to, or an unreasonable application of clearly established Supreme Court precedent. Because a violation of state law does not ordinarily provide a basis for habeas relief (Estelle, 502 U.S. at 67-68), the state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it rendered the state proceedings so fundamentally unfair as to violate due process. Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000), cert. denied, 532 U.S. 984 (2001).

Criminal defendants have a due process right, implicit in the Sixth Amendment, to present a defense. Washington v. Texas, 388 U.S. 14, 19 (1967); see also Crane v. Kentucky, 476 U.S. 683, 690 (1986). That right is not unlimited. Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002). A state law justification for exclusion of evidence does not abridge a criminal defendant's right to present a defense unless it is "arbitrary or disproportionate" and "infringe[s] upon a weighty interest of the accused." United States v. Scheffer, 523 U.S. 303, 308 (1998); Crane, 476 U.S. at 689-91 (discussing the tension between the discretion of state courts to exclude evidence at trial and the federal constitutional right to "present a complete defense"). To be unconstitutional, an evidentiary exclusion must have "significantly undermined fundamental elements of the accused's defense." Scheffer, 523 U.S. at 315. In other words, in order to prevail, petitioner must show that the state court's ruling was so prejudicial that it rendered his trial fundamentally unfair. See Estelle, 502 U.S. at 68.

In addition, even if a trial court's exclusion of evidence amounted to a constitutional violation, habeas corpus relief is warranted only if the constitutional violation actually had a "substantial and injurious effect" upon the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 622 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-122 (2007) (requiring Brecht review regardless of whether the state court recognized the error and reviewed it for harmlessness).

State lawmakers have broad latitude under the Constitution to establish evidentiary rules for criminal trials. See Holmes v. South Carolina, 547 U.S. 319, 324 (2006). In this case, the trial court concluded that Dr. Grobus's proffered testimony was character evidence that would open the door under state law to evidence of petitioner's character for violence. This determination is binding on this court for purposes of this review. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus")

The trial court's ruling did not implicate petitioner's right to present a complete defense because it did not prevent the defense from presenting Dr. Grobus's testimony. In light of the ruling, the defense made a tactical decision not to present Wells's character evidence. Nevertheless, no defense evidence was excluded by the court. Petitioner fails to identify any clearly established Supreme Court precedent, and a thorough search reveals none, holding that due process is offended by application of an evidentiary rule such as the one at issue here. Petitioner's trial was not rendered fundamentally unfair simply because he had to make a strategic choice between presenting Dr. Globus's testimony and keeping out evidence of his own character for violence, including the fact that he had incurred prior violent non-felony convictions.

Moreover, the jury heard evidence regarding Wells's drug problem, and heard evidence that she had bipolar disorder. The jury heard evidence that both petitioner and Wells abused drugs, and evidence that Wells had alcohol, cocaine, and methamphetamine in her body when she died. An expert had testified that methamphetamine and cocaine are central nervous system stimulants that can give people increased strength and aggressiveness as well as cause paranoia. Petitioner testified that Wells's demeanor changed after they smoked drugs together. Based on this evidence, counsel argued in detail and at length that Wells was the aggressor and petitioner acted in self-defense. Counsel argued specifically that Wells's bipolar disorder, combined with her drug use that day, caused the situation to escalate to a struggle for the knife. Thus, the jury had the opportunity to evaluate the defense theory of the case. Cf. Conde v. Henry, 198 F.3d 734, 741 (9th Cir. 1999) (trial court violated petitioner's right to due process where it improperly precluded defendant's attorney from making closing argument explaining the defendant's theory of the case, refused to instruct the jury on the defendant's theory and, over the defendant's objection, gave erroneous instructions that did not require that the jury find every element of the offense).

Moreover the trial court's evidentiary ruling did not have "substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 637. To warrant relief, an alleged error must have resulted in "actual prejudice." Id. Here, because petitioner was still able to present his self-defense theory of the case, the trial court's evidentiary ruling did not have substantial and injurious effect or influence in determining the jury's verdict. For all these reasons, the decision of the state appellate court was not contrary to, or an unreasonable application of clearly established federal law, nor based on an unreasonable determination of the facts in light of the evidence.

B. Instructional Error

Petitioner claims that the trial court made an instructional error with respect to the law on involuntary manslaughter.*fn1

At petitioner's trial, the jury was instructed with CALJIC No. 8.45 as follows: Every person who unlawfully kills a human being, without malice aforethought, and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter, in violation of Penal Code Section 192(b).

There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend one's self against imminent peril to life or great bodily injury.

A killing in conscious disregard for human life occurs when a killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life.

A killing is unlawful within the meaning of this instruction if it occurred: One, during the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission;

Or [two,] in the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.

A violation of Penal Code Section 417, brandishing a weapon, is an "unlawful act" not amounting to a felony The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life and its commission.

In order to prove this crime, each of the following elements must be proved: One, a human being was killed; And two, the killing was unlawful. (RT at 860-61 (italics added).)

With respect to the above instruction, petitioner contends that the jurors might have misunderstood it as precluding conviction of involuntary manslaughter if they believed petitioner was committing a felony when the killing occurred. In particular, petitioner complains that the italicized portion of the instruction highlights that a killing which occurs during commission of a misdemeanor or act of criminal negligence is an "unlawful killing" within the meaning of the definition, but does not likewise specify circumstances under which a killing that occurs during commission of a felony is an "unlawful killing."

On direct appeal, the state appellate court rejected petitioner's claim of error: The jury was instructed with CALJIC No. 8.45, the first part of which informed the jurors of the general principle that "Every person who unlawfully kills a human being, without malice aforethought, and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter." This provided the jurors with a legally correct definition of involuntary manslaughter that they could apply in reaching their verdict. (People v. Lee, supra, 20 Cal.4th at pp. 61-62.) In encompassed defendant's claimed defense that he unintentionally killed Wells under the circumstances required for a conviction for involuntary manslaughter.

Although the last part of CALJIC No. 8.45... as given, highlight[s] the misdemeanor and criminal negligence forms of involuntary manslaughter, the instructions did not imply there were no other methods to prove involuntary manslaughter. In this sense, the misdemeanor manslaughter instruction was merely "illustrative" of and not "restrictive" on the ...

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