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People v. Benitez12/3/1992
ron,' a marijuano.' " Defendant paced about the apartment, the weapon in his hand and a box of ammunition in his pocket. He was nervous and sorry, repeatedly asking, "Oh my God, what have I done?" At one point, he attempted to jump from the second-story window of his apartment, but Arreola intervened.
Defendant asked Carlos Arreola for a ride to the bus station, but Arreola indicated that flight only would worsen the situation. Arreola suggested that defendant give himself up. In response to a call from an unidentified person, police officers were dispatched to the scene of the shooting, and then arrived at defendant's apartment, where defendant surrendered without incident.
During their search of the apartment, officers seized a .38-caliber five-shot revolver as well as ammunition found inside a detergent box located in the bathroom. The revolver contained four live rounds and one spent casing. Although the weapon's trigger guard was missing, an expert witness called by the prosecution provided unrefuted testimony at trial that this defect did not affect the operation of the gun. According to the prosecution's expert, the revolver was in good working condition and had a normal "trigger pull."
Guero died at the hospital approximately one hour after the shooting. The cause of death was blood loss from a single gunshot wound to the neck. The path of the bullet was slightly upward (about 10 degrees), perforating the jugular vein. There was stippling around the entrance wound, indicating the bullet was fired from a short distance, probably six inches or less.
Defendant did not testify at trial. Rather, he sought to demonstrate through the testimony of others that he had not pointed the firearm toward Guero, and therefore could not have intended to kill him. Defense witnesses also testified that defendant's actions were taken in response to Guero's aggressive and combative behavior, and that Guero had a reputation in the neighborhood as a short-tempered fighter.
II. PROCEDURAL HISTORY
A. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY
Following the parties' presentation of evidence, the prosecutor, in making his closing argument, asked the jury to return a verdict of first degree murder. Defense counsel, in closing, argued that defendant was, at most, guilty of manslaughter. The trial court instructed the jury consistent with the parties' respective theories. Additionally, and of particular relevance to the present Discussion, is the trial court's instruction of the jury pursuant to CALJIC No. 8.31, which provides: "Murder of the second degree is [also] the unlawful killing of a human being when: 1. The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being."
During its deliberations, the jury asked the court to explain the term, "intentional act," as used in CALJIC No. 8.31. The prosecutor requested that the court answer the jury's question by referring specifically to the "pulling of a handgun in the manner described" as one example of an "intentional act" as that term is used in CALJIC No. 8.31. Defense counsel objected to the prosecutor's request, contending that "the pulling of the handgun . . . is an act precedent to death resulting, but it is not itself the intentional act that is referred to in [CALJIC No.] 8.31."
The trial court rejected defense co
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