People v. Newton, 8 Cal.App.3d 359 (Cal.App.1.Dist.,1970)
COUNSEL
Garry, Dreyfus, McTernan
& Brotsky, Charles R. Garry, Benjamin Dreyfus and Fay Stender for Defendant and Appellant. *366
Thomas C. Lynch, Attorney
General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys
General, for Plaintiff and Respondent.
RATTIGAN, J.
Huey P. Newton appeals
from a judgment convicting him of voluntary manslaughter.
Count One of an indictment
issued by the Alameda County Grand Jury in November 1967, charged defendant with the murder (Pen. Code, ? 187) of John Frey;
count Two, with assault with a deadly weapon upon the person of Herbert Heanes, knowing or having reasonable cause to know
Heanes to be a peace officer engaged in the performance of his duties (Pen. Code, ? 245b); count Three, with the kidnaping
of Dell Ross. (Pen. Code, ? 207.) The indictment also alleged that defendant had previously (in 1964) been convicted of assault
with a deadly weapon, a felony. He pleaded not guilty to all three counts and denied the prior.
After the People rested
during the lengthy jury trial which followed in 1968, and pursuant to Penal Code section 1118.1, the trial court granted defendant's
motion for acquittal on count Three (the Ross kidnaping). Similar motions, addressed to the other counts, were denied. The
jury acquitted him of the Heanes assault charged in count Two, but found him guilty of the voluntary manslaughter of Frey
under count One. The jury also found the charge of the prior felony conviction to be true. Defendant's motions for new trial
and for probation were denied, and he was sentenced to state prison for the term prescribed by law. This appeal followed.
At relevant times, John
Frey and Herbert Heanes were officers of the Oakland Police Department. The criminal charges against defendant arose from
a street altercation in which Frey was fatally wounded by gunfire, and Heanes and defendant were shot, on October 28, 1967.
Through the testimony of Oakland police radio dispatcher Clarence Lord, and a tape recording of the radio transmissions mentioned
therein, the People showed that the following events first occurred on the date in question:
Lord was on radio duty
in the Oakland Police Administration Building. Officer Frey was also on duty, and alone in a police car, patrolling an assigned
beat in Oakland. At about 4:51 a.m., he radioed Lord and requested a check on an automobile which was moving in his vicinity
and which bore license number AZM 489. Less than a minute later, Lord told *367 Frey that "we have got some PIN information
coming out on that." [n. 1] Frey replied, "Check. It's a known Black Panther vehicle. ... I am going to stop it at Seventh
and Willow [Streets]. You might send a unit by." ("Check," in this context, meant that Frey had received Lord's message.)
Officer Heanes, who was listening to this conversation in his police car on another beat, called in that he was "enroute"
to Seventh and Willow Streets. This transmission terminated at about 4:52 a.m.
n. 1 "PIN" means "Police
Information Network," a computerized system which stores and reports information concerning outstanding warrants associated
with identified motor vehicles.
A few minutes later Frey
asked Lord by radio, "you got any information on this guy yet?" Explaining this call, Lord testified that "when I gave him
[Frey] the information there was PIN information he made the car stop on the strength of that, on the strength of the PIN
information. He [now] wants to know what information I have that told him to stop the vehicle." Lord gave Frey the name "LaVerne
Williams" and asked him "if there were a LaVerne Williams in the vehicle." Frey replied in the affirmative. Lord told him
there were a "couple" of warrants issued to LaVerne Williams, for parking violations, on the identified vehicle.
Lord testified that under
such circumstances "[w]e check and see if the warrants are still outstanding, first of all, and if they are, and then they
[the officers outside] can ascertain if they have that person stopped on the street, then they take action concerning the
warrant." Pursuing this procedure in the radio conversation, he gave Frey an address for "LaVerne Williams" and said "Let
me know if this is the same address or not." Frey asked Lord, "What's his description?" Lord replied "... I don't have the
description. Do you have a birth date on him there? We're checking him out right now downstairs."
After another brief interval,
and just before 5 a.m., this further exchange occurred by radio: "Frey: 1A, it's the same address. He has on his registration
1114 - 12th Street? Radio [Lord]: Check. What's his birth date? Frey: He gave me some phony. I guess he caught on. Radio:
Okay, check. It's not necessary, anyway. We're checking him out downstairs there. We'll have the information back in a few
minutes. Frey: Check. Thanks." The next relevant radio call, received at 5:03 a.m., was a "940B" ("an officer needs assistance
immediately") from Officer Heanes at Seventh and Willow Streets.
Officer Heanes testified
for the People as follows: He arrived at Seventh and Willow Streets "three to four minutes" after responding by radio to Officer
Frey's "cover call." Officer Frey's police car was parked at the south curb of Seventh Street, east of Willow Street and facing
east. A *368 beige Volkswagen was parked directly in front of it, also facing east. Heanes parked his car behind Frey's, alighted
and walked to the right rear of the Volkswagen. At this time, two men were seated in the Volkswagen, both in the front seat;
Officer Frey was standing near the driver's door of the vehicle, writing a citation. (Heanes made an in-court identification
of defendant as the man seated in the driver's seat of the Volkswagen.)
After a minute or so, Heanes
followed Frey to the latter's vehicle, where he heard Frey talk to the police radio dispatcher about an address and a birth
date. When Frey finished the radio call, he and Heanes had a conversation in which Frey indicated that defendant, when asked
for identification, had produced the Volkswagen registration and given his name as "LaVerne Williams." While Frey remFined
in his car, Heanes walked forward to the Volkswagen, addressed defendant as "Mr. Williams," and asked if he had any further
identification. Defendant, still seated in the vehicle, said "I am Huey Newton." Frey then approached the Volkswagen and conversed
with Heanes, who asked defendant to get out of the car. Defendant asked "if there was any particular reason why he should."
Heanes asked him "if there was any reason why he didn't want to." Frey then informed defendant that he was under arrest and
ordered him out of the car.
Defendant got out of the
Volkswagen and walked, "rather briskly" and in a westerly direction, to the rear of the police cars. Frey followed, three
or four feet behind defendant and slightly to his (defendant's) right. Heanes followed them, but stopped at the front end
of Frey's police car (the second car in line). Defendant walked to the "rear part" of Heanes's car (third in line), Frey still
behind him, and turned around. He assumed a stance with his feet apart, knees flexed, both "arms down" at hip level in front
of his body.
Heanes heard a gunshot
and saw Officer Frey move toward defendant. As he (Heanes) drew and raised his own gun in his right hand, a bullet struck
his right forearm. He grabbed his arm "momentarily" and noticed, from the corner of his eye, a man standing on the curb between
the Volkswagen and Officer Frey's police car. Heanes turned and aimed his gun at the man (whom he apparently identified at
the time as defendant's passenger, although he had not seen the passenger get out of the Volkswagen). The man "raised his
hands and stated to me he wasn't armed, and he had no intentions of harming me." To the best of Heanes' knowledge, the man's
hands were empty.
Heanes returned his attention
to Officer Frey and defendant, who were "on the trunk lid of my car [the third car in line] tussling." The two were in "actual
physical contact" and "seemed to be wrestling all over the trunk *369 area of my car." He next remembered being on his knees
at the front door of Frey's (the second) car, approximately "30, 35 feet" from the other two men. Defendant was then facing
him; Officer Frey was "facing from the side" of defendant, toward the curb, and appeared to be "hanging onto" him. Holding
his gun in his left hand, Heanes aimed at defendant and fired "at his midsection." Defendant did not fall; Heanes saw no one
fall at any time. He (Heanes) then heard "other gunshots ... from the area of where Officer Frey and ... [defendant] ... were
tussling on the rear part of my car." [n. 2] Heanes did not see a gun in defendant's hand at any time. He next remembered
"laying" in Officer Frey's police car, and calling an "emergency 940B" on its radio. After that, and through the vehicle's
rear window, he saw two men running in a westerly direction toward Seventh and Willow Streets.
n. 2 Although Officer Heanes'
testimony was clear to the effect that he heard the first shot, and was struck in the arm, before anything else happened,
it was ambiguous as to the sequence in which the subsequent shots were fired. His first account, on direct examination, indicated
that he fired at defendant's "midsection," and from a kneeling position, before he
heard the "other gunshots"
mentioned. His later testimony to the same events, under cross-examination and upon redirect, suggested that he heard the
"other gunshots" before he fell to his knees and fired at defendant. As will appear, he fired another shot, and was himself
shot again twice, during the episode described. He did not remember these events, and testified that he "blacked out," and
had a "lapse of memory," after he was shot in the arm.
Henry Grier, a bus driver
employed by AC Transit, gave this testimony for the People: Driving his empty bus westbound on Seventh Street at about 4:58
a.m. on October 28, 1967, he saw the three vehicles parked at the south curb, "about bumper to bumper," west of Willow Street.
"Red lights" were flashing on the police cars. He also saw two uniformed police officers and two "civilians" standing together
in the street, to his left and next to the Volkswagen. He continued west on Seventh Street to a turn-around point two blocks
west of Willow Street, turned without stopping, returned on Seventh Street in an eastbound direction, and stopped to pick
up two bus passengers at Willow Street.
Continuing east on Seventh
Street, Grier again came upon the three parked vehicles. This was four to five minutes after he passed them while headed west.
He saw the same flashing lights on the police cars, and three men in the street. Two of them, a police officer and a "civilian,"
were walking toward the bus. When Grier first saw them, they were 20-25 feet distant from him and a point between the Volkswagen
and the first police car parked behind it. The officer was walking a "pace" behind the civilian, and was apparently holding
him "sort of tugged under the arm." The third man in the street was another police officer, who was walking in the same direction
about "ten paces" behind the first officer and the civilian. *370 (Grier did not then, or again, see the other "civilan" he
had noticed when driving west on Seventh Street.)
As the first pair drew
closer to the bus, which was still "rolling," the civilian pulled a gun from inside his shirt and "spun around." The first
police officer "grabbed him by the arm." The two struggled, and "the gun went off." The officer walking behind them "was hit
and he fell"; after he was hit, he drew his gun and fired. Grier stopped the bus immediately and called "central dispatch"
on its radio. At this point, the first officer and the civilian were struggling near the front door of the bus and within
a few feet of Grier. He saw the civilian, standing "sort of in a crouched position," fire several shots into the first officer
as the latter was falling forward. [n. 3] These shots were fired from, or within, a distance of "four or five feet" from the
midsection of the officer's body; the last one was fired "in the direction of his back" as he lay, face down, on the ground.
While these shots were being fired, Grier was saying on the bus radio, "Get help, a police officer is being shot. Shots are
flying everywhere; get help. Help, quick." After firing the last shot at the fallen officer, the civilian "went diagonally
across Seventh [Street]." At the trial, Grier positively identified defendant as the "civilian" mentioned in his account of
the shootings.
n. 3 Grier expressly testified
to the sequence of shots stated here: i.e., that "the gun went off" the first time; the second officer "was hit and he fell,"
and fired his own gun; and the civilian thereafter fired "several shots" at the first officer.
Gilbert DeHoyos and Thomas
Fitzmaurice, both Oakland police officers, testified for the People as follows: Shortly after 5 a.m. on October 28, 1967,
both responded to Officer Heanes' "940B" call for assistance. Officer DeHoyos arrived at Seventh and Willow Streets less than
a minute later; Officer Fitzmaurice arrived just behind him. They found Officer Frey lying on the street near the rear of
Heanes' police car, still alive, and Heanes in the front seat of Frey's car. They saw no other persons nearby. Officer Heanes
told Fitzmaurice that "his leg hurt and his arm and that Huey Newton had done it ... he told me he had fired [at defendant]
and I think he hit him ... he [Heanes] thought he hit him."
Defendant arrived at the
emergency desk of Kaiser Hospital at 5:50 a.m. on the same morning. He asked to see a doctor, stating "I have been shot in
the stomach." A nurse called the police. Officer Robert Fredericks arrived and placed defendant under arrest. He (defendant)
had a bullet wound in his abdomen. The bullet had entered in the front and exited through the back of his body.
Officers Frey and Heanes
were taken to Merritt Hospital, where Frey was dead on arrival. He had been shot five times, at approximately the same time
but in an unknown order. One bullet entered in the front, and *371 exited through the back, of his left shoulder; another
passed through his left thigh, also from front to back. A third (the only one recovered from Frey's body) entered the midback
and lodged near the left hip. A fourth creased the left elbow. Another bullet entered the back, traversed the lungs, and exited
through the right shoulder in front: this wound caused Officer Frey's death within 10 minutes. Officer Heanes had three bullet
wounds: one in his right arm, one in the left knee, one in the chest.
Three slugs were recovered:
one from Officer Frey's hip, one from Heanes' left knee, and a third which had been lodged in the right front door of the
Volkswagen. In addition, two 9-mm. Luger shell casings were found at the scene. One was in the street between the two police
cars, the other near the left front bumper of Heanes' car and approximately where Frey was lying. The 9-mm. bullets had been
fired from an automatic (Officers Frey and Heanes carried .38- caliber Smith & Wesson revolvers). A live 9-mm. Luger cartridge
was found on the floor of the Volkswagen, between the two front seats. Only Officer Heanes' gun was found; he was holding
it when the other officers arrived at the scene. Two rounds had been expended from the gun. Neither a Luger nor Officer Frey's
revolver was found.
Oakland Police Department
Officer John Davis testified for the People as follows: Two types of gunpowder, ball and flake, were involved in the shootings.
Officer Frey's gunbelt contained high velocity cartridges with ball powder. Officer Heanes' gun used flake powder cartridges;
the 9-mm. cartridges also contained flake powder. The three slugs recovered from Officer Frey's body, Heanes' knee and the
Volkswagen door were .38-caliber specials fired with ball powder, similar to the cartridges in Officer Frey's gunbelt. The
slugs found in both officers' bodies were fired from the same .38-caliber Smith & Wesson revolver, the type of weapon
normally carried by Officer Frey; neither had been fired from Heanes' gun, which was of the same type.
Davis testified that a
gunshot fired into a body from close range (up to "five, six feet," and with variations) will leave powder deposits at the
point of impact; a gun firing a high velocity, ball powder bullet would have to be fired from a distance of more than six
feet to leave no such deposits. Among several bullet-entry holes in Officer Frey's clothing, three (one in the left thigh
and two in the back) were surrounded by ball powder deposits. Davis estimated that these shots were fired at the victim from
distances of 12-24 inches, 12 inches and 6-12 inches. The other two entry holes in Frey's clothing (in the shoulder and elbow
area) showed no powder deposits, and none appeared at the bullet-entry holes in the clothing worn by Officer Heanes and defendant.
*372
Defense Evidence
Tommy Miller gave this
testimony for the defense: He boarded an eastbound bus at Seventh and Willow Streets at about 5 a.m. on October 28, 1967.
As the bus moved away from the stop, and the driver was making change for him and another passenger, he saw "red lights and
police cars" on Seventh Street, and police officers and another man in the street; one of the officers "had him [the man]
up against the car." The witness could identify no faces; it was "too dark," and the persons in the street were facing away
from him. Hearing "a lot of gunfire," he laid down in the rear of the bus. When the shooting stopped, he got up and saw, from
the back of the bus (which had stopped), a police officer lying on the ground.
Gene McKinney, who was
also called by the defense, testified that he was defendant's passenger in the Volkswagen at Seventh and Willow Streets. He
thereafter pleaded self-incrimination as to any and all subsequent questions, was held in contempt by the trial court, and
gave no further testimony.
Defendant, testifying in
his own behalf, denied killing Officer Frey, shooting Officer Heanes, or carrying a gun on the morning of the shootings. His
account of the episode was as follows: He was driving with Gene McKinney on Willow Street, and had just turned into Seventh
Street when he noticed a red light through the rear window of the Volkswagen. He pulled over to the curb and stopped. Officer
Frey approached the Volkswagen and said "Well, well, well, what do we have? The great, great Huey P. Newton." Frey asked for
defendant's driver's license and inquired as to the ownership of the Volkswagen. Defendant handed him his (defendant's) license,
and the vehicle registration, and said that the car belonged to LaVerne Williams. Officer Frey returned the license and walked
back to his patrol car with the registration.
A few minutes later Officer
Heanes arrived, conversed with Frey, then walked up to the Volkswagen and asked, "Mr. Williams, do you have any further identification?"
Defendant said, "What do you mean, Mr. Williams? My name is Huey P. Newton ..." Heanes replied, "Yes, I know who you are."
Officer Frey then ordered defendant out of the car. He got out, taking with him a criminal law book in his right hand. He
asked if he was under arrest; Officer Frey said no, but ordered defendant to lean against the car. Frey then searched him,
placing his hands inside defendant's trousers and touching his genitals. (Officer Heanes had testified that defendant was
not searched at any time.) McKinney, who had also alighted from the Volkswagen, was then standing with Officer Heanes on the
street side of the Volkswagen. *373
Seizing defendant's left
arm with his right hand, Officer Frey told him to go back to his patrol car. Defendant walked, with the officer "kind of pushing"
him, past the first police car to the back door of the second one. Defendant opened his book [n. 4] and said, "You have no
reasonable cause to arrest me." The officer said, "You can take that book and stick it up your ass, Nigger." He then struck
defendant in the face, dazing him. Defendant stumbled backwards and fell to one knee. Officer Frey drew a revolver. Defendant
felt a "sensation like ... boiling hot soup had been spilled on my stomach," and heard an "explosion," then a "volley of shots."
He remembered "crawling ... a moving sensation," but nothing else until he found himself at the entrance of Kaiser Hospital
with no knowledge of how he arrived there. He expressly testified that he was "unconscious or semiconscious" during this interval,
that he was "still only semiconscious" at the hospital entrance, and that - after recalling some events at Kaiser Hospital
- he later "regained consciousness" at another hospital.
n. 4 A criminal lawbook,
with defendant's name inscribed inside, was found in a pool of blood near Officer Frey.
The defense called Bernard
Diamond, M.D., who testified that defendant's recollections were "compatible" with the gunshot wound he had received; and
that "[a] gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce
a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it
is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for
short periods of time up to half an hour or so."
The Instructions Upon Unconsciousness
Defendant asserts prejudicial
error in the trial court's failure to instruct the jury on the subject of unconsciousness as a defense to a charge of criminal
homicide. As the record shows - and the Attorney General emphasizes - that defendant's original request for instructions on
this subject was "withdrawn," we first recount the sequence in which this occurred. During the trial, defense counsel submitted
to the court a formal list requesting - by number only - specified CALJIC instructions pertaining, among other things, to
self-defense (322 and 322-A), unconsciousness (71-C and 71-D), diminished capacity and manslaughter. [n. 5] At the suggestion
of all counsel, the court announced that "... [A]rgument and discussion concerning *374 the proposed instruction will be had
in chambers and when we get through ... we will come out and place on the record the rulings of the Court ... [on the instructions
proposed by both sides] ..." The conference in chambers, which followed, was not reported (although it apparently lasted for
several hours). At the opening of the next trial day, this exchange occurred between the court and defense counsel:
n. 5 On diminished capacity,
defendant requested CALJIC 73-B (Revised) and 305.1 (New); on manslaughter, CALJIC 305-AA (New), 308 (Revised), 308-A (Revised),
310 (Revised), 311 and 311-B. This cause was tried before the publication (in 1970) of the current (third) edition of CALJIC;
the work cited at the trial was the revised (1966) edition of CALJIC (California Jury Instructions - Criminal) as supplemented
through its 1967 cumulative pocket part.
"The Court: Gentlemen,
in connection with the instructions, in discussion in chambers the attorneys for the defendant have withdrawn their request
for Instruction No. 322, 322A, of CALJIC, being instructions in self-defense. Is that correct, Mr. Garry?
"Mr. Garry [defense counsel]:
That is correct.
"The Court: Mr. Newton,
you understand that? Meet with your approval?
"The Defendant: Yes, it
does.
"The Court: Now, the attorneys
for the defendant have requested that the Court give either 71C and 71D, or give 73B of CALJIC. Now, is that correct?
"Mr. Garry: That is correct.
"The Court: Very well.
The Court will give 73B, and at the request of the defendant will not give 71C and 71D. Does that meet with your approval,
Mr. Garry?
"Mr. Garry: Yes, Your Honor.
"The Court: Mr. Newton,
that has been explained to you and it meets with your approval?
"The Defendant: Yes." (Italics
added.)
The trial court then enumerated,
with some intermittent discussion, the CALJIC and other instructions which be given. This exchange followed:
"Mr. Garry: Let the record
show that the instructions that have been requested by the defendant that are not being given, of course, will be stated as
an objection on our part.
"The Court: Well, with
the exception, of course, of those which have - 322 and 322A - which you have withdrawn, 71C and 71D which, in effect, you
have withdrawn, because we are giving 73B -
"Mr. Garry: Yes, Your Honor.
"The Court: Those are the
only ones. All the other instructions, yes, *375 I have gone through all of them and they are either not given or else they
are covered by other instructions given, and I will make a note, of course, on each instruction ... and file that. You know
now what instructions the Court plans to give. ..." [n. 6]
n. 6 Defendant's formal
list requested 31 CALJIC instructions, referring to each by its number only. According to the trial court's "note" later written
by the entries requesting CALJIC 322 and 322-A (on self-defense), and 71-C and 71-D (on unconsciousness), each of these requests
was shown to have been "Withdrawn."
Thereafter the trial court
fully and correctly instructed the jury on murder in the first degree (including the requisite elements of willfulness, deliberation,
premeditation and malice aforethought) and in the second (including the element of malice aforethought). At defendant's request,
the court also gave instructions on voluntary manslaughter [n. 7] and diminished capacity. [n. 8] Pursuant to the judge's
intentions as announced in the dialog quoted above, the instructions originally requested by defendant on self- defense (CALJIC
322 and 322-A) and unconsciousness (71-C and 71-D) were not given; the jury was instructed on neither subject.
n. 7 CALJIC 308-A (Rev.)
("Voluntary manslaughter is the intentional and unlawful killing of a human being without malice aforethought upon a sudden
quarrel or heat of passion without deliberation or premeditation"), 311 (concerning "provocation" and "heat of passion"),
305-AA (New) and 311-B.
n. 8 The court gave the
two CALJIC instructions requested by defendant on this subject: "When a defendant is charged with a crime which requires that
a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take
all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant
was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific
intent or mental state essential to constitute the crime or degree of crime with which he is charged" (CALJIC 73-B [Rev.]);
and
"If you find from the evidence
that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused
by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on
the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find
that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate,
deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first
degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether
he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first
or second degree." (CALJIC 305.1 [New].)
(We mention in passing
that there was no evidence that defendant was mentally ill or intoxicated at the time of the shootings.)
Although the evidence of
the fatal affray is both conflicting and confused as to who shot whom and when, some of it supported the inference that defendant
had been shot in the abdomen before he fired any shots himself. [n. 9] *376 Given this sequence, defendant's testimony of
his sensations when shot - supplemented to a degree, as it was, by Dr. Diamond's opinion based upon the nature of the abdominal
wound - supported the further inference that defendant was in a state of unconsciousness when Officer Frey was shot.
n. 9 Defendant's testimony
suggested that Officer Frey wounded him with the first shot fired. However, the absence of powder deposits on his (defendant's)
clothing would indicate that Officer Heanes, not Frey, shot him. Grier's testimony was explicit as to this sequence: i.e.,
that Heanes, struck by the first bullet fired, shot at defendant before the latter commenced firing at Frey. (See text at
fn. 3, ante.) Heanes' account, while less precise on this subject (see text at fn. 2, ante) also supports the inference that
he shot defendant (in the "midsection") before Officer Frey was shot by anyone.
Where not self-induced,
as by voluntary intoxication or the equivalent (of which there is no evidence here, as we pointed out in fn. 8, ante), unconsciousness
is a complete defense to a charge of criminal homicide. (Pen. Code, ? 26, subd. Five; People v. Graham (1969) 71 Cal.2d 303,
316- 317 [78 Cal.Rptr. 217, 455 P.2d 153]; People v. Wilson (1967) 66 Cal.2d 749, 760-762 [59 Cal.Rptr. 156, 427 P.2d 820].)
"Unconsciousness," as the term is used in the rule just cited, need not reach the physical dimensions commonly associated
with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist - and the above-stated
rule can apply - where the subject physically acts in fact but is not, at the time, conscious of acting. [n. 10] The statute
underlying the rule makes this clear, [n. 11] as does one of the unconsciousness instructions originally requested by defendant.
[n. 12] (See also People v. Roerman (1961) 189 Cal.App.2d 150, 160-163 [10 Cal.Rptr. 870] and cases cited.) Thus, the rule
has been invoked in many cases where the actor fired multiple gunshots while inferably in a state of such "unconsciousness"
(e.g., People v. Coogler (1969) 71 Cal.2d 153, 157-159, 161-166, 169 [77 Cal.Rptr. 790, 454 P.2d 686];
n. 10 As was true of Officer
Heanes, according to his testimony (see fn. 2, ante), during part of the shooting episode in the present case.
n. 11 Penal Code section
26 provides in pertinent part that "All persons are capable of committing crimes except those belonging to the following classes:
... Five-Persons who committed the act charged without being conscious thereof." (Italics added.)
n. 12 CALJIC 71-C, which
read in pertinent part as follows: "Where a person commits an act without being conscious thereof, such act is not criminal
even though, if committed by a person who was conscious, it would be a crime ...." (Italics added.) People v. Wilson, supra,
at pp. 752-753, 755-756, 761-763; People v. Bridgehouse (1956) 47 Cal.2d 406, 409-411, 414 [303 P.2d 1018]; People v. Moore
(1970) 5 Cal.App.3d 486, 488- 490, 492 [85 Cal.Rptr. 194]; People v. Edgmon (1968) 267 Cal.App.2d 759, 762-763, 764 [fn. 5],
[73 Cal.Rptr. 634]; People v. Cox (1944) 67 Cal.App.2d 166, 169-173 [153 P.2d 362]), including some in which the only evidence
of "unconsciousness" was the actor's own testimony that he did not recall the shooting. *377 (E.g., People v. Wilson, supra,
at pp. 755-756, 762; People v. Bridgehouse, supra, at pp. 409-411.)
Where evidence of involuntary
unconsciousness has been produced in a homicide prosecution, the refusal of a requested instruction on the subject, and its
effect as a complete defense if found to have existed, is prejudicial error. ( People v. Wilson, supra, 66 Cal.2d 749 at p.
764; People v. Bridgehouse, supra, 47 Cal.2d 406 at p. 414. See People v. Mosher (1969) 1 Cal.3d 379, 391 [82 Cal.Rptr. 379,
461 P.2d 659]; People v. Coogler, supra, 71 Cal.2d 153 at p. 169.) The fact, if it appears, that such evidence does not inspire
belief does not authorize the failure to instruct: "However incredible the testimony of a defendant may be he is entitled
to an instruction based upon the hypothesis that it is entirely true." (People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal.Rptr.
225, 382 P.2d 33] [quoting People v. Carmen (1951) 36 Cal.2d 768, 772-773 (228 P.2d 281)].) (3a) It follows that the evidence
of defendant's unconsciousness in the present case was "deserving of consideration" upon a material issue. (People v. Castillo
(1969) 70 Cal.2d 264, 270 [74 Cal. Rptr. 385, 449 P.2d 449]; People v. Modesto, supra; People v. Carmen, supra.)
Defendant did not request
instructions upon unconsciousness; as we have seen, his original request therefor was "withdrawn." But a trial court is under
a duty to instruct upon diminished capacity, in the absence of a request and upon its own motion, where the evidence so indicates.
(People v. Henderson (1963) 60 Cal.2d 482, 490-491 [35 Cal.Rptr. 77, 386 P.2d 677]; People v. Stines (1969) 2 Cal.App.3d 970,
977 [82 Cal.Rptr. 850].) The difference between the two states - of diminished capacity and unconsciousness - is one of degree
only: where the former provides a "partial defense" by negating a specific mental state essential to a particular crime, the
latter is a "complete defense" because it negates capacity to commit any crime at all. (See People v. Gorshen (1959) 51 Cal.2d
716 at p. 727 [336 P.2d 492]; People v. Conley (1966) 64 Cal.2d 310, 319 [49 Cal.Rptr. 815, 411 P.2d 911].) Moreover, evidence
of both states is not antithetical; jury instructions on the effect of both will be required where the evidence supports a
finding of either. (See People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson (1965) 63 Cal.2d 351, 355-356
[46 Cal.Rptr. 863, 406 P.2d 43].) (3b) We hold, therefore, that the trial court should have given appropriate unconsciousness
instructions upon its own motion in the present case, and that its omission to do so was prejudicial error. (See People v.
Mosher, *378 supra; People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal.App.3d 486 at p. 492.)
The error was prejudicial
per se because the omission operated to deprive defendant of his "constitutional right to have the jury determine every material
issue presented by the evidence." ( People v. Mosher, supra, 1 Cal.3d 379 at p. 391; ( People v. Modesto, supra, 59 Cal.2d
722 at pp. 730- 731.) Actual prejudice, moreover, is perceptible in the present case. The voluntary manslaughter verdict indicates
the jury's decision that defendant shot Officer Frey, but that the jurors found (1) provocation by the officer or (2) dimished
capacity on defendant's part, or both. As defendant alone testified to both events, it appears that the jury believed him
as to either or both. But, if they fully believed his testimony with respect to his asserted unconsciousness, they had been
given no basis upon which to acquit him if they found it to be true. (See People v. Coogler, supra, 71 Cal.2d 153 at p. 169;
People v. Moore, supra, 5 Cal.App.3d 486 at p. 492.) Defense counsel, in fact, argued to the jury defendant's, and Dr. Diamond's
testimony on this subject. Absent instructions upon the legal effect of unconsciousness as a complete defense, the argument
was necessarily limited and essentially ineffective. It further appears that the jury gave some thought at least, to acquitting
defendant upon a finding of justifiable homicide. [n. 13] Under these circumstances, it is "reasonably probable" that a result
more favorable to him - i.e., a verdict acquitting him of the homicide, based upon unconsciousness as a complete defense -
would have been reached if the omitted instruction had been given. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d
243].)
n. 13 The jurors deliberated
for four full days, during which they were twice reinstructed, by request, on murder in both degrees, voluntary manslaughter,
provocation, heat of passion, diminished capacity, and assault. On one of these occasions, they apparently asked for instructions
on "justifiable homicide," which had not been given in the first instance (and were not given when requested). The actual
request - which was apparently in writing - does not appear of record, but the trial judge recalled it at a post-judgment
hearing conducted for the purpose of correcting the reporter's transcript. The prosecutor declined to stipulate that the request
was made, but stipulated that the judge's recollection thereof "may be put in the record." Since the event recalled stands
uncontroverted, the jury's interest in "justifiable homicide" is thus a matter of record.
It also bears mentioning
that, during their lengthy deliberations, the jurors asked to see, and were shown, the bullet wounds in defendant's body.
The Question of Invited
Error
As defendant's point on
the omission of unconsciousness instructions is thus valid on its merits, the question is whether he is precluded from asserting
*379 it on appeal because his original request for such instructions was "withdrawn." He contends in effect that he withdrew
his request for CALJIC 71-C and 71-D only because the trial court forced him to choose between them and a Wells-Gorshen instruction
on dimished capacity. (People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53]; People v. Gorshen, supra, 51 Cal.2d 716.) The trial
court denied this claim when defense counsel asserted it on motion for new trial, nevertheless, the judge's remarks at trial
suggest that he (the judge) thought the jury should be given instructions on diminished capacity or unconsciousness, but not
upon both. [n. 14]
n. 14 We refer to the court's
statements, quoted supra, that defense counsel had requested "either" CALJIC 71-C and 71-D (on unconsciousness) "or" 73-B
(on diminished capacity); that the court would "give 73B and at the request of the defendant will not give 71C and 71D"; and
that defense counsel's objections to omitted instructions did not reach "71C and 71D which, in effect, you have withdrawn,
because we are giving 73-B ..."
If the trial court entertained
this view at the time of its remarks, it was in error: the defenses of diminished capacity and unconsciousness were "entirely
separate," and neither incompatible nor mutually exclusive, under the evidence. (See People v. Baker, supra, 42 Cal.2d 550
at p. 575 [268 P.2d 705]; People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson, supra, 63 Cal.2d 351 at p.
356.) In any event, while the deficient record [n. 15] does not clearly substantiate counsel's claim that the trial court
forced him to a choice, it does not wholly refute him, either; and it tends to explain the court's failure to instruct upon
both defenses, upon its own motion, whether counsel correctly understood the situation or not.
n. 15 The record is deficient,
of course, because the conference in chambers was unreported. This was not by stipulation of the parties, so far as appears,
and it should not have occurred in this particular - and highly important - instance. (See Code Civ. Proc., ? 269.)
A similar situation occurred,
and was considered on appeal in light of the "invited error" concept, in People v. Graham, supra, 71 Cal.2d 303. In Graham,
defense counsel had openly consented to the trial court's omission of a proper instruction and giving an erroneous one. (
Id., pp. 317-318.) The Supreme Court first posed the question in terms of "whether the trial court's affirmative duty to instruct
the jury on its own motion on the general principles of law relevant to the issues of the case can be nullified by waiver
of defense counsel" ( id., pp. 317-318 (italics added)). and cited People v. Phillips (1966) 64 Cal.2d 574, 580-581 [fn. 4],
[51 Cal.Rptr. 225, 414 P.2d 353] to the effect that such "waiver" foreclosed *380 complaint on appeal only where "the record
indicated a 'deliberate' or 'expressed' tactical decision by counsel to forego a particular instruction which the court is
otherwise obliged to render to the jury." ( People v. Graham, supra, at p. 318 (italics in the original).)
The Graham court went on
to hold that "invited error" will not originate, so as to foreclose complaint on appeal, by reason of counsel's neglect or
mistake: "[O]nly if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction,
do we deem it to nullify the trial court's obligation to instruct in the cause." ( People v. Graham, supra, 71 Cal.2d 303
at p. 319 (italics added).) This rule applies with equal effect in the present case, where defense counsel's asserted "waiver"
consisted of failing to press for instructions upon unconsciousness, and the Graham court said as much: "This formulation
correctly resolves the competing considerations of the underlying policies relevant to the problem. On the one hand, the attorney
should exercise control over his case and bear responsibility for tactical decisions reached in the course of his representation.
On the other hand, the Legislature has indicated that instructions which affect the substantial rights of a defendant should
be subject to review, even though his counsel, through neglect or mistake, has failed to object to them. Indeed, this court
has held that a trial judge must on his own motion fully and correctly instruct the jury on general principles of law, regardless
of the failure of defense counsel to offer such instructions or to object to their omission." ( Id., at pp. 319-320 [italics
added].)
The self-defense instructions
originally requested by defendant (CALJIC 322 and 322-A) were wholly inconsistent with his testimony that he he did not kill
Officer Frey or shoot Officer Heanes. Accordingly, we can discern a "deliberate tactical purpose" in his counsel's withdrawing
the request for them. Defendant's denial of the shootings, however, went no further than his own conscious recollections as
recited in his testimony; the denial was not inconsistent with the hypothesis that he fired a gun while - and not before -
he was in a state of "unconsciousness" as such state has previously been defined herein. Against the substantial evidence
that it was he who shot Officer Frey, the instructions he requested on diminished capacity afforded him partial defenses at
best. As only instructions upon unconsciousness offered a complete defense ( People v. Wilson, supra, 66 Cal.2d 749 at p.
764; People v. Mosher, supra, 1 Cal.3d 379 at p. 391), his counsel's "withdrawal" of them, or the failure to press for them,
is irreconcilable with "deliberate *381 tactical purpose" on counsel's part. (Cf. People v. Phillips, supra, 64 Cal. 2d 574
at pp. 580-581 [fn. 4 and cases cited].)
n. 16 Because the conference
in chambers went unreported (see fn. 15, ante), the record sheds no real light on this subject; the only relevant events of
record are defense counsel's affirmative - and laconic - answers to the trial court's inquiries during the successive dialogs
quoted, supra, from the trial proceedings. We accord no significance to defendant's similar responses. People v. Graham, supra,
71 Cal.2d 303 at p. 319), or "ignorance or inadvertence" ( id., at p. 320) on the part of defense counsel. Whatever the reason
for it, though, no "deliberate tactical purpose" appears and we can conceive of none. Under these circumstances, the "invited
error" doctrine does not foreclose defendant from asserting his point on the appeal. ( Id., at p. 319.) Since we have sustained
the point on its merits, the judgment must be reversed.
We also sustain certain
other claims of trial error advanced by defendant on the appeal. As the error in the instructions alone requires reversal,
we need assess none of the other errors in terms of prejudicial effect. Some of them warrant discussion although they will
not recur; others require it because of the prospect of a retrial. They relate to (1) an extrajudicial statement given to
the police by the witness Henry Grier, (2) the grand jury testimony of Dell Ross concerning the kidnaping charged in count
Three of the indictment, and (3) defendant's prior felony conviction.
Grier's Extrajudicial Statement
Henry Grier's eyewitness
account of the shooting affray (summarized supra) was the only direct trial evidence that defendant was the person who fatally
shot Officer Frey; Grier's in-court identification of defendant was positive in this respect. He had given a tape-recorded
statement to the Oakland police, on the morning of the shootings and less than two hours afterward. As recited in the written
transcript of the October 28 statement, his narrative version of the shooting episode did not materially vary from that given
in his trial testimony. In the statement as transcribed, however, he described Officer Frey's assailant as "very short ...
sort of pee-wee type fellow ... no more [than] five feet" in height, weighing "125 pounds" and wearing a dark shirt and light
jacket. Grier testified at the trial that Frey's assailant was of "medium height and build" (consistent with the physical
measurements of defendant, who is 5 feet 10 inches tall and weighs 165 pounds) and wore a light shirt and dark jacket. Emphasizing
*382 these discrepancies in cross-examining Grier, defense counsel made extensive use of the October 28 transcript to impeach
the witness' in-court identification of defendant. Counsel also read the full transcript to the jury. The copy used for these
purposes, as made available to the defense by the prosecution at the time of trial, showed the following question put to Grier
by the police on the morning of the shootings, and his answer thereto:
"Q" [By the interrogating
police officer] About how old was [Officer Frey's assailant]?
"A. I couldn't say because
I only had my lights on, I couldn't - I did get a clear picture, clear view of his face but - because he had his head kind
of down facing the headlights of the coach [Grier's AC Transit bus] and I couldn't get a good look -" (Italics added.)
Arguing to the jury, defense
counsel cited the passage of the transcript wherein Grier had said he "couldn't get a good look," but omitted any reference
to his statement that he "did get a clear picture, clear view" of the assailant's face. Responding in his closing argument,
the prosecutor repeatedly reminded the jury of the latter statement. During its deliberations, the jury asked to see a copy
of the transcript. Defense counsel, having mutilated his copy during his jury argument, requested another copy from the prosecution.
According to the new copy he received, Grier had said, in the above-quoted context of the October 28 statement, that "I didn't
get a clear picture, clear view of his face ..." (Italics added.)
The defense immediately
moved to reopen the case so that the jury could be apprised of newly discovered evidence. The court denied the motion.
DELETED TEXT HERE. CONTINUE
BELOW.
Other points raised on
the appeal need not be discussed.
The judgment of conviction
is reversed.
Devine, P. J., and Christian,
J., concurred.
On June 26, 1970, the opinion
was modified to read as printed above. Respondent's petition for a hearing by the Supreme Court was denied July 29, 1970.
McComb, J., was of the opinion that the petition should be granted. *392
