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People v. Rizo4/24/2002
ain refuting the suggestion the killing was a rash action stemming from a belief, reasonable or not, that there was imminent peril.
Further, the Supreme Court has stated that unreasonable self-defense, like true self-defense, "may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified." (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) There could be no reasonable dispute on the evidence in this case that Ivan and the other defendants initiated a physical assault on Galvan.
In both Lasko, supra, 23 Cal.4th 101 and People v. Crowe, supra, 87 Cal.App.4th 86, the courts found no prejudice in the erroneous instruction that voluntary manslaughter requires intent to kill. Each court based its conclusion on three factors: (1) the jury was instructed, pursuant to CALJIC No. 8.50, that to prove murder the prosecution had to prove beyond a reasonable doubt that the killing was not done in unreasonable self-defense; (2) the parties did not prominently argue the theory of voluntary manslaughter; and (3) the evidence strongly suggested an intent to kill. (Lasko, supra, 23 Cal.4th at pp. 111-113; People v. Crowe, supra, 87 Cal.App.4th at pp. 96-97.)
All three factors were present here. The court gave CALJIC No. 8.50. Neither side prominently argued voluntary manslaughter either as a theory of liability or as a lesser included offense. And as noted above, there was strong evidence suggesting an intent to kill.
Salvador argues there was little or no evidence he was aware of an intent to kill. Even if he is correct, as discussed previously aider and abettor liability for murder may be based on intent to assist a lesser crime, as long as the murder is a natural and probable consequence of the lesser crime. Thus, Salvador did not have to intend to assist an intentional murder in order to be liable as a aider and abettor.
Defendants also point out that in Lasko and Crowe the juries were instructed on involuntary manslaughter. Therefore, the court in each of those cases could infer from the fact the jury did not convict of involuntary manslaughter instead of murder that the jury must have rejected unreasonable self-defense. In this case, however, the court did not instruct on involuntary manslaughter, and the same inference is not available.
We acknowledge this distinction between this case and Lasko and Crowe. However, we are not persuaded that the lack of an involuntary manslaughter instruction was enough of a distinction to make the erroneous voluntary manslaughter instruction prejudicial in this case when it was not prejudicial in Lasko and Crowe. To adopt defendants' position that the lack of an involuntary manslaughter instruction led the jury to convict of murder to avoid outright acquittal even though it was unconvinced the killing in fact met the requirements for murder, we would have to assume the jury disobeyed the instructions on the elements of murder and the requirement that the prosecution prove beyond a reasonable doubt that the killing was not done in unreasonable self-defense. On the other hand, we would have to assume the jury obeyed the erroneous instruction that it could not convict of voluntary manslaughter unless it found an intent to kill, and therefore convicted of murder instead to avoid acquittal.
The rule requiring instructions on lesser included offenses recognizes that, if given an "all-or-nothing" choice, a jury may be tempted to convict of a greater offense when it would have chosen a lesser offense had it been available. Here, howev
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