(Super. Ct. No. SWF014495) APPEAL from a judgment of the Superior Court of Riverside County, Timothy F. Freer, Judge.
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
A jury found Amalia Catherine Bryant not guilty of first degree murder, but guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189).*fn1 The jury also found that Bryant personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1), in committing the murder. The trial court sentenced Bryant to an aggregate term of 16 years to life in prison.
On appeal, Bryant claims that the trial court erred in failing to instruct the jury, sua sponte, on the lesser included offenses of voluntary manslaughter (§ 192, subd. (a)) and involuntary manslaughter (§ 192, subd. (b)). With respect to voluntary manslaughter, Bryant claims that the trial court committed reversible error in failing to instruct the jury, sua sponte, pursuant to People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia), that an unintentional killing committed without malice during the course of an inherently dangerous assaultive felony constitutes voluntary manslaughter. With respect to involuntary manslaughter, Bryant contends that the trial court was required to instruct the jury to consider whether she was guilty of misdemeanor manslaughter based on an unlawful killing occurring in the commission of the misdemeanor offense of brandishing a deadly weapon (§ 417, subd. (a)(1)). Bryant also claims that the court was required to instruct the jury to consider whether she was guilty of involuntary manslaughter based on an unlawful killing occurring in the commission of a lawful act done with criminal negligence.
We conclude that the trial court committed reversible error by failing to instruct the jury on the theory of voluntary manslaughter articulated in Garcia. We reject Bryant's contention that the court erred in failing to instruct the jury on involuntary manslaughter. We reverse the second degree murder conviction and permit the People to retry Bryant on a charge of second degree murder. If the People do not bring Bryant to retrial on a charge of second degree murder, the judgment shall be modified to reflect a conviction for voluntary manslaughter, and the trial court shall resentence Bryant accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
A. The prosecution's evidence
1. Bryant's relationship with the victim
Bryant and victim Robert Golden (Robert) started dating in late 2003, a few months after Robert graduated from high school. In the spring of 2004, Bryant discovered that she was pregnant with twins. In the summer of 2005,Bryant and Robert moved in together. During the fall of 2005, Robert told several people that he was unhappy in the relationship and that he wanted to leave Bryant.
On November 24, 2005, which was Thanksgiving Day, Bryant and Robert went to Robert's aunt's house for dinner. Robert and Bryant left at approximately 7:30 p.m. After they had returned home, Robert's mother, Andrea Golden (Andrea), stopped by Robert and Bryant's apartment for a short time. Robert was playing video games and told Andrea that Bryant had gone to bed.
At about 8:45 p.m., several neighbors heard Bryant screaming for help. The neighbors went to Robert and Bryant's apartment. Robert was lying in the doorway of the apartment on his stomach, face down, and Bryant was next to him. Bryant was hysterical and was screaming, "Someone call 911," "Please call an ambulance," and, "I think I stabbed him. I think I stabbed him." A neighbor called 911.
Deputy Joseph Narciso of the Riverside County Sheriff's Department responded to the apartment at 8:53 p.m. Deputy Narciso asked Bryant "who stabbed" the victim. Bryant responded, "I did." Paramedics took Robert to the hospital, where he was pronounced dead.
Dr. Aaron Gleckman performed an autopsy on Robert's body. Robert was six feet one inch tall and weighed approximately 285 pounds. Dr. Gleckman testified that Robert died from a four-inch to five-inch deep stab wound that passed through both his xiphoid process (the small bone below the sternum) and his pericardium (a tough fibrous membrane that surrounds the heart), and penetrated the right ventricle of his heart. The stab wound was angled slightly upward. Dr. Gleckman testified that it would take a "significant amount of intentional force" to inflict the stab wound, and that a person could not simply walk into a knife and have the blade penetrate four to five inches into his body.
Robert had also suffered several other less serious injuries. He had a one-inch bruise underneath the surface of his scalp on the back right side of his head, and a one-by-one-half-inch ecchymosis (bleeding under the skin) on the left side of his back. Robert also had some scratches on the right side of his forehead, above his mouth, and on the left side of his chin. Robert had approximately seven incised wounds on his left forearm and a one-inch-long curvilinear incised wound on the back of his left wrist. In addition, Robert had cuts or scratches on several fingers, bruising on one of his hands, and bruising on his left forearm.
4. Bryant's interview with police
The People played an audiotape of an interview that Lieutenant Cheryl Evans of the Riverside County Sheriff's Department conducted with Bryant on the afternoon after the stabbing. During the interview, Bryant described the events that led up to the stabbing. Bryant explained that after she and Robert returned to their apartment from Thanksgiving dinner, she put on a red negligee in an attempt to entice Robert into having sex. However, Bryant changed her mind about wanting to have sex with Robert after writing in her journal. Bryant began to listen to some music, and started to call a friend on the telephone. Robert asked Bryant who she was calling, and Bryant told him that it was "none of his business." In response, Robert unplugged the phone and hit Bryant on the leg with the phone. Bryant swung a ceramic doll at Robert but missed. Robert then pushed Bryant down on the bed and started to strangle her. Bryant could not breathe. Bryant was eventually able to get free from Robert. She picked up a glass candle holder and then grabbed a knife from the dresser drawer and started to cut herself with the knife.*fn2
Robert lunged at Bryant while holding a hair brush. Bryant threw the glass candle holder at Robert. The candle holder shattered when it hit the ground. Robert then knocked the knife out of Bryant's hand with the brush. Bryant picked up shards of glass from the broken candle holder and tried to cut her wrists with them, telling Robert that she was going to kill herself. Robert responded, "Do it. Just do it. . . . [D]on't hurt anyone else."
After deciding that she did not want to give Robert the pleasure of seeing her die, Bryant walked toward the front door in an attempt to leave the apartment. Robert blocked Bryant's path to the front door. Bryant grabbed a telephone and hit Robert in the head with it. Bryant then grabbed a knife from the kitchen table and said, "You better let me leave or I'll hurt you." Bryant "jabbed at [Robert] with the knife," and Robert grabbed Bryant's hand in attempt to wrest the knife from her. While struggling over the knife, Robert bit Bryant. Bryant broke free momentarily and stabbed Robert with the knife as he came toward her.
At approximately 2:00 a.m. on the morning after the stabbing, Lieutenant Evans conducted a physical examination of Bryant. Bryant was wearing a red satin negligee. She had a fresh bruise on the back of her left thigh/buttock area and older bruising on her arms. Bryant also had an indentation injury to her thumb, and a one-half-inch red mark on the left side of her neck.*fn3 In addition, Bryant had numerous scars on her wrists from cutting herself, and several small, fresh cuts near her wrists.
Police conducted a search of Robert and Bryant's apartment. In the master bedroom, police discovered a telephone cord that had been removed from the wall, a knife in a dresser drawer, a hard plastic doll, and a battery cover to a phone. In the hallway outside of the bedroom, police found the broken glass candle holder. There was a large concentration of blood on the carpet and linoleum in the living room, and a trail of blood leading to the front door. A faceplate and the handset to a cordless telephone were on the living room floor near the front door. Police found a knife with a blade that was approximately six and one-half inches long, with blood on both sides of the blade, on top of a book on the kitchen counter.
During the People's case-in-chief, numerous entries from Bryant's diaries and online journals were read to the jury. Most of the entries were written in the fall of 2005, and focused primarily on Bryant's feelings of inadequacy stemming from her love/hate relationship with Robert.
As discussed in greater detail in part III.A.1., post, Bryant acknowledged at trial that she stabbed Robert. During closing argument, defense counsel argued that Bryant had stabbed Robert in self-defense and that Bryant had not intended to kill Robert. Counsel argued that if the jury were to find that Bryant had not acted in self-defense, the jury should find her guilty of voluntary manslaughter, based upon either imperfect self-defense or heat of passion.
Andrea testified that she believed Bryant had been the aggressor during prior incidents of domestic violence between Robert and Bryant. Bryant's friend testified that Bryant loved attention and said that she would make herself appear to be the victim in an attempt to draw attention to herself.
The trial court properly did not instruct the jury on involuntary manslaughter, but committed reversible error in failing to instruct the jury on the theory of ...