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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

THE PEOPLE,                                                            A070328

                                Plaintiff/Respondent,                    San Mateo Superior
                                                                                   Court No. SC34266
v.

JOHN JOSEPH DOMITROVICH, 

                                Defendant/Appellant.
____________________________________/

    We agree with appellant's claims of instructional error as to the murder conviction. The instructions did not properly state the possible effect of voluntary intoxication on the formation of malice aforethought; and therefore, we must reduce the conviction to voluntary manslaughter. We find no prejudicial error regarding the true findings on the prior conviction allegations. We, therefore, remand for resentencing or retrial, at the option of the People.

    I.     FACTS AND PROCEDURAL HISTORY

    The killing in question occurred after a loud drunken argument late at night between appellant and the victim at appellant's trailer. Appellant and a woman friend were cooking powdered cocaine into crack cocaine and then smoking the crack inside appellant's trailer late one evening. The victim had also come to appellant's trailer with appellant's woman friend, but had been told by appellant to wait outside because appellant did not trust him. The victim was drunk and belligerent; he was also younger and more muscular than appellant, because the victim had recently been lifting weights in prison. The victim began to yell and bang on the outside of appellant's trailer, making a lot of noise late at night. Appellant, who had also been drinking and smoking cocaine, became irate. He told the victim to stop making so much noise late at night, or appellant would come out with a knife and kill him. The victim stopped for awhile. Later that same night, however, the victim returned and again began yelling and banging on appellant's trailer, apparently trying to break in. The victim smashed open a window in appellant's trailer. Appellant then went outside with a knife and stabbed the victim to death.

    The police at the time of booking appellant charged him only with manslaughter, because they believed at the time based upon the evidence regarding the killing that appellant was only guilty of manslaughter, not murder; this was the charge recommended by the police to the San Mateo District Attorney's Office.

    Appellant, however, was later charged with murder. It was also alleged that appellant had two prior serious felony convictions from 1969. Additionally, appellant was charged with attempting to intimidate witnesses by making phone calls to them while he was in custody for psychiatric observation.

    After a jury trial, the jury found appellant guilty of second degree murder. The jury also found to be true the two allegations of prior serious felony convictions; appellant was acquitted on the witness tampering charge. The trial court sentenced appellant to 15 years to life for the second degree murder, with an additional 10 years for the 2 prior felony convictions. Appellant filed a timely appeal.

    II.     DISCUSSION

    Because of prejudicial instructional error, we reverse the conviction for second degree murder; and we will order a reduction of the conviction to voluntary manslaughter, or a retrial, at the option of the People. We find no prejudicial error as to the true findings on the two prior conviction allegations.

    A.     Instructional Error as to Voluntary Intoxication and Malice

    Appellant contends, and we agree, that the trial court erred prejudicially when it improperly instructed the jury, at the prosecutor's request, regarding the effect of voluntary intoxication on the formation of the mental state of malice aforethought which is a necessary predicate for a murder conviction.

    A relevant precedent which is almost precisely on point is the recent opinion of the Third District in People v. Cameron (1994) 30 Cal.App.4th 591, 599-602 (Cameron.) In Cameron, as here, the prosecution and trial court apparently ignored the prominently placed warnings contained in the use notes to CALJIC No. 4.20 (instruction 4.20), [FOOTNOTE 1] and gave instruction 4.20 in a murder prosecution where the instruction was legally erroneous. Instruction 4.20 states, in the version given to the jury here: "The law provides that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. [¶] In the crime charged in Count[] 1 [i.e., murder] . . . the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve him from the responsibility of the crime."

    Instruction 4.20 is obviously erroneous when given in a prosecution for a crime such as murder, which requires a mental state such as malice and a specific intent to kill. (Cameron, supra, 30 Cal.App.4th at p. 600.)

    The Attorney General attempts to contend the error was harmless. We are unable to agree on this record. The evidence obviously justified an instruction on voluntary intoxication, and the trial court did define that concept for the jury using CALJIC No. 4.22. It is also well established that voluntary intoxication can be relevant evidence as to whether a defendant acted with the malice which is a necessary predicate to murder. (People v. Whitfield (1994) 7 Cal.4th 437, 450-451.) Voluntary intoxication can, therefore, reduce murder to manslaughter. (Ibid.) Here the trial court's instruction prevented the jury from considering the factual question of whether appellant, due to voluntary intoxication, did or did not form the malice required for murder. (Cameron, supra, 30 Cal.App.4th at p. 600.)

    None of the other instructions cured the error. Although the trial court defined voluntary intoxication for the jury, its instruction forbade the jury to consider voluntary intoxication as relevant to the murder count. While the trial court did partially contradict its prior instruction by telling the jury, correctly, that voluntary intoxication can prevent formation of a specific intent to kill, using CALJIC No. 4.21, this instruction did not warn the jury that voluntary intoxication can also prevent the formation of malice. Even though the trial court did properly define malice, using CALJIC No. 8.11, nothing in that instruction warned the jury it should ignore the previous instruction and consider voluntary intoxication as relevant to malice. Similarly, the trial court properly instructed the jury that an intentional killing without malice is manslaughter, as for instance an intentional killing in the heat of passion, but again the trial court failed to inform the jury that it could consider appellant's intoxication as relevant to the formation of malice.

    Most critically, the evidence presented a rather close question whether the killing here was murder or manslaughter. Even the police, when originally booking appellant, charged him only with manslaughter. Appellant had been drinking, heavily and smoking crack; from which evidence, the jury could clearly have concluded he was intoxicated at the time of the crime. His home was attacked late at night by a threatening, shouting, violent stranger just released from prison who was younger and more muscular than appellant and had disregarded prior warnings to leave. The stranger smashed in a window in an apparent attempt to break in, even though he knew appellant was inside. While we do not endorse appellant's own actions, "Nonetheless, the facts present genuine and serious questions [for the jury] whether [appellant's] offense was murder or manslaughter." (Cameron, supra, 30 Cal.App.4th at p. 602.)

    In sum, the facts of record would arguably support a jury finding negating appellant's formation of malice because he was intoxicated when perpetrating a killing in heated or passionate circumstances, as a result of considerable provocation. We cannot say on this record that the instructional error was harmless. (See Cameron, supra, 30 Cal.App.4th at p. 602; People v. Watson (1956) 46 Cal.2d 818, 836.)

    The error requires that we either vacate and remand for retrial, or reduce the crime to a lesser crime that is not affected by the instructional error. (Cameron, supra, 30 Cal.App.4th at pp. 602-604.) Here the crime may appropriately be reduced to a conviction for voluntary manslaughter. The instructional error here prevented the jury from properly finding malice, but did not prevent the jury from properly finding an intent to kill. An intentional killing without malice, as might occur in the heat of passion and as a result of intoxication, is voluntary manslaughter. (See People v. Conley (1966) 64 Cal.2d 310, 318.)

    For these reasons, in the event the People elect not to retry appellant, we will direct that the conviction of murder in the second degree be reduced to the least offense for which the appellant would have been convicted but for the error, voluntary manslaughter. (See Cameron, supra, 30 Cal.App.4th at p. 605.)

Footnote 1: "Do not use this instruction where the crime charged requires a specific intent . . . ." (Use note to instruction 4.20.)