California Court of Appeals, Fourth District, First Division
Ordered Filed Date 1/13/14
APPEAL from a judgment of the Superior Court of Riverside County No. SWF014495, Timothy F. Freer, Judge.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James H. Flaherty III, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Amalia Catherine Bryant killed her boyfriend with a knife. A jury found Byrant not guilty of first degree murder, but guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189). 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.
In her initial briefing on appeal, Bryant claimed that the trial court erred in failing to instruct the jury sua sponte on involuntary manslaughter as a lesser included offense of murder, on the theory that she killed unlawfully while committing the misdemeanor offense of brandishing a weapon or performing a lawful act with criminal negligence. After the People filed their respondent's brief, we requested supplemental briefing concerning whether the trial court committed reversible error by not instructing the jury sua sponte that an unintentional killing without malice during the course of an inherently dangerous assaultive felony constitutes voluntary manslaughter. (See People v. Garcia (2008) 162 Cal.App.4th 18, 31 (Garcia) [stating that "an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter" (italics added)].) We further instructed the parties to assume that the People were correct that Bryant committed, at a minimum, a felony assault with a deadly weapon.
Bryant filed a supplemental brief in which she argued that the trial court should have instructed the jury on voluntary manslaughter, based on the theory set forth in our request for supplemental briefing, and that the error was prejudicial. The People responded that there was no evidentiary basis for the instruction and, alternatively, that any error in failing to instruct the jury on this theory of voluntary manslaughter was harmless. In our initial opinion in this matter, we reversed Bryant's murder conviction, concluding that "the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter, based on the theory articulated in Garcia." (People v. Bryant (Aug. 9, 2011, D057570), review granted and opn. ordered nonpub. Nov. 16, 2011, S196365.)
The Supreme Court granted the People's petition for review and reversed our judgment. (People v. Bryant (2013) 56 Cal.4th 959, 971 (Bryant).) The Supreme Court concluded:
"A defendant who has killed without malice in the commission of an inherently dangerous assaultive felony must have killed without either an intent to kill or a conscious disregard for life. Such a killing cannot be voluntary manslaughter because voluntary manslaughter requires either an intent to kill or a conscious disregard for life. To the extent that [Garcia, supra, 162 Cal.App.4th at page 31] suggested otherwise, it is now disapproved.
"Because a killing without malice in the commission of an inherently dangerous assaultive felony is not voluntary manslaughter, the trial court could not have erred in failing to instruct the jury that it was." (Bryant, supra, at p. 970.)
The Supreme Court expressly "decline[d] to address [Bryant's] alternative contention that, because assault with a deadly weapon is not an inherently dangerous felony, the trial court erred in failing to instruct the jury on the theory of involuntary manslaughter recognized in [People v. Burroughs (1984) 35 Cal.3d 824(Burroughs)]." (Bryant, supra, 56 Cal.4th at pp. 970-971, italics added.) The Bryant court remanded the matter to this court for proceedings consistent with its opinion. (Id. at p. 971.)
In a concurring opinion, Justice Kennard concluded that "[b]ecause the defense here presented evidence from which the jury could have reasonably concluded that defendant lacked malice, but killed while committing an assault with a deadly weapon [citation], a jury instruction on involuntary manslaughter as a lesser offense necessarily included within the charged crime of murder would have been proper." (Bryant, supra, 56 Cal.4th at p. 975 (conc. opn. of Kennard, J.), italics added.) However, Justice Kennard further concluded that the trial court did not have a sua sponte duty to provide such an instruction in this case because the legal principle on which the instruction would be based "has been so 'obfuscated by infrequent reference and inadequate elucidation' that it cannot be considered a general principle of law." (Ibid., quoting People v. Flannel (1979) 25 Cal.3d 668, 681(Flannel).)
On remand, Bryant claims that the trial court erred in failing to instruct the jury sua sponte that an unlawful killing committed without malice in the course of an assaultive felony constitutes the crime of involuntary manslaughter. In light of Supreme Court authority concerning a trial court's sua sponte instructional duties, we must reject Bryant's contention.
The Supreme Court has repeatedly held that a trial court has no sua sponte duty to instruct on a legal principle that has been "obfuscated by infrequent reference and inadequate elucidation." (Flannel, supra, 25 Cal.3d at p. 681; see also People v. Michaels (2002) 28 Cal.4th 486, 529 (Michaels) [a "trial court... has no duty to... instruct on doctrines of law that have not been established by authority"].) In this case, it is undisputed that there is no authority holding that an unlawful killing committed without malice in the course of an assaultive felony constitutes the crime of involuntary manslaughter. Thus, even assuming that the jury instruction that Bryant proffers in her briefing on remand is a correct ...