Filed 2/24/16 P. v. Petroski CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----




THE PEOPLE,                                                                                  C073879

                   Plaintiff and Respondent,                                   (Super. Ct. No. P11CRF0630)

         v.

RICHARD KENNETH PETROSKI,

                   Defendant and Appellant.




         Defendant Richard Kenneth Petroski was charged with murder and convicted of
the lesser included offense of voluntary manslaughter after he shot and killed his
stepfather, John Malia. (Pen. Code, §§ 187, subd. (a), 192, subd. (a); unless otherwise set
forth, section references that follow are to the Penal Code.) The jury also found true the
special allegation that defendant personally used a firearm during the offense.
(§ 12022.5, subd. (a).) He was sentenced to 21 years in state prison.




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       Defendant raises several contentions on appeal, including (1) that the trial court
abused its discretion and denied him the right to present a complete defense by excluding
evidence that Malia had shown defendant inappropriate computer images of young girls,
(2) his counsel was ineffective for failing to request a jury instruction on accidental
homicide, (3) the court had a sua sponte duty to instruct on involuntary manslaughter, (4)
the errors, both individually and cumulatively, rendered his trial fundamentally unfair,
and (5) that the court erred in sentencing him to the upper term for both voluntary
manslaughter and the firearm use enhancement.
       We conclude the trial court erred in failing to instruct the jury sua sponte on the
lesser included offense of involuntary manslaughter. On this record, we cannot say the
error did not prejudice defendant. Although we find sufficient evidence supports
defendant’s voluntary manslaughter conviction we nevertheless reverse. Given our
reversal, we need not reach defendant’s other contentions on appeal.

                                 FACTS AND PROCEEDINGS

A.     Malia Killing

       In the early morning hours of December 4, 2011, defendant awoke Amy Settle and
told her he had shot and killed Malia. Settle lived in a trailer next to Malia’s house on his
rural property in Placerville. Defendant also lived on the property in a separate trailer.
       Although at first she thought defendant was kidding, Settle eventually ran from
her trailer to Malia’s house. The front door was open and Malia was lying inside the
doorway injured. He had been shot in the head with a .22 caliber rifle.
       Defendant, who was still carrying the rifle, handed the gun to Settle and asked her
to shoot him. She took the gun from him intending to throw it off the porch, but
defendant grabbed it back from her. Settle ran into the house to call 911. She heard a
gunshot, and turned around to see defendant lying on the porch. Although defendant had




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tried to kill himself, the shot merely wounded his forehead and did not completely
penetrate his skull.
       While speaking with the 911 operator, Settle saw defendant stand up and walk into
the living room carrying the gun. He had blood on his forehead. Settle ran out the back
door of the house and locked herself in her trailer until police arrived. Defendant,
meanwhile, laid the rifle near the front door of Malia’s house and walked out.
       Although Malia was still alive when police arrived, he later died at the hospital.
Police eventually apprehended defendant in a clearing near the house, and he was
transported to the same hospital for treatment.
       After being advised of his Miranda rights at the hospital, defendant admitted he
shot Malia. He said Malia was “nothing to [him] anymore,” and that Malia “made [him]
do it” “[b]ecause he was pushing [defendant’s] buttons.” He also claimed that he shot
Malia because Malia “made [him] get rid of the cats.” He told the detective he had aimed
or pointed the rifle at Malia so he could see the gun and then fired, shooting Malia above
his right eyebrow. Before defendant shot, Malia said, “[W]hat the fuck are you doing?”
       Defendant never told the detective that Malia attacked him from behind, that he
and Malia wrestled over the rifle, that he grabbed the rifle away from Malia, or that Malia
was reaching for a handgun at the time of the incident. Neither did defendant ever claim
that the gun accidentally went off. Responding to a question about whether he feared for
his own life and defended himself, however, defendant nodded his head “yes.”
       During a second police interview three days later, defendant told a detective that
he had prior experience with firearms and that when he picked up the rifle at Malia’s
house he could tell the round was not seated properly in the chamber so he physically
racked the gun to eject the improperly seated round and to load a live round into the
firing chamber. He also said the incident had nothing to do with cats. When asked
whether the only two people he meant to hurt that day were Malia and himself, defendant
responded, “No, just John [Malia].” He said Malia was always nicer to strangers than to

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him. During the interview, defendant often failed to answer questions and sometimes
laughed and offered unintelligible responses.

B.     Trial Proceedings

       A November 2012 information charged defendant with one count of first degree
murder. (§ 187, subd. (a).) The information included special allegations that defendant
used and personally and intentionally discharged a firearm causing great bodily injury or
death. (§ 12022.53, subds. (b)-(d).) It further alleged that defendant had also personally
used a firearm during the offense under section 12022.5, subdivision (a).
       Defendant testified on his own behalf. His testimony differed somewhat from his
previous recorded statements to police, which were played for the jury. He said he got up
early that morning to complete his chores. He saw Malia sitting in his house through the
living room window. Malia appeared to be watching television, and he waved for
defendant to come to the house. Defendant testified that Malia was leaving on a trip to
Thailand for several months and that he wanted defendant to maintain the property and
take care of the animals while he was gone.
       After knocking on the front door, defendant entered and took off his shoes in the
entryway. He sat down in his “assigned seat” on a small couch near the door, and the two
men watched television for about 35 minutes. Defendant was not allowed anywhere else
in the house. They discussed what defendant needed to do while Malia was in Thailand.
       According to defendant, Malia had forgotten that he told defendant he would show
him how to hoof the goats that morning and had instead made other plans. Defendant
complained that had he known Malia would be unable to show him how to hoof the goats
that morning and he could have gotten work at another job site. Malia told defendant he
had an attitude.




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       The two men stood up, and defendant began putting on his shoes near the front
door. He asked Malia what was more important, and Malia purportedly responded that
he had things to do on the computer. Defendant then called Malia a pedophile.
       Defendant claimed Malia forcefully shoved him in the back and pinned him up
against the front door with his arms wrapped around defendant from behind so defendant
could not move. Defendant tried to loosen Malia’s grip to get free. As the men
struggled, defendant noticed his left arm was no longer restricted and he saw that Malia
had let go of his arm and had grabbed a rifle. Defendant, who is left-handed, grabbed the
rifle with his left hand, trying to wrestle it from Malia. Defendant attempted to shove
back from the front door to throw Malia off balance. Defendant fell to the ground and his
body landed on the rifle. He saw Malia moving towards the entertainment center where
defendant knew he kept a loaded gun. Defendant quickly picked up the rifle with his
right hand and the gun went off. Malia stopped moving and defendant ran out of the
house still carrying the rifle. Defendant then heard a loud crash.
       Defendant said he ran to Settle’s trailer and tried to wake her up. He told her he
shot Malia and handed her the rifle. When Settle went to Malia’s house and saw that
Malia was injured she began yelling at defendant. Defendant did not want to be yelled at
or lectured and he could not take her yelling anymore. He grabbed the gun back from
Settle, put the butt of the rifle on the porch, put his forehead on the barrel, and pulled the
trigger. The force from the gunshot whipped his head back and he fell backwards and
blacked out. A short time later he regained consciousness. Stunned that he had not died
from the gunshot, defendant racked the rifle a few times on the porch to determine the
type of ammunition in the gun because he suspected the gun was loaded with bird shot.
       Defendant returned to the house, and told Malia to hang on because help was on
the way. Defendant could not stand to listen to Malia gurgling on the floor, so he put the
rifle down and walked outside. He waited for police near the house.



                                               5
       Defendant testified he did not remember speaking to the first detective at the
hospital the day of the shooting and only vaguely remembered speaking to the second
detective a few days after the incident. He said he was scared for his life and that he did
not intend to shoot Malia but that the gun just went off when he picked it up during the
struggle. During cross examination, defendant admitted he never told either the police or
his family that Malia had attacked him or that the gun had accidentally fired. During
closing arguments, defense counsel asserted that defendant had shot Malia in self
defense, or, at a minimum, that there had been a sudden quarrel between the men, but he
did not argue the shooting was accidental. The prosecutor, however, characterized
defendant’s testimony as follows: “He is saying [the gun] accidentally went off and
magically hit the victim in almost the middle of the forehead.” The prosecutor argued
defendant had intentionally shot Malia and that the evidence showed it was not a case of
self defense or accident.
       The court instructed the jury on homicide generally and informed the jury that
murder and manslaughter were types of homicides. The court instructed the jury on first
degree murder and on second degree murder and voluntary manslaughter as lesser
included offenses. It also instructed the jury on self defense, provocation, sudden quarrel
or heat of passion, and imperfect self defense. The court asked whether counsel wanted
instructions on accident or involuntary manslaughter. Neither counsel, however,
requested such instructions and the court did not give them.
       The jury found defendant not guilty of first and second degree murder. Because it
found him not guilty of murder, the jury did not consider the special allegations under
section 12022.53, subdivisions (b) through (d) of whether defendant personally and
intentionally discharged a firearm causing great bodily injury or death. The jury
convicted defendant of the lesser included offense of voluntary manslaughter and found
that he personally used a firearm within the meaning of former section 12022.5,
subdivision (a).

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       The court sentenced defendant to 21 years in state prison, consisting of the upper
term of 11 years for voluntary manslaughter and the upper term of 10 years for the gun
enhancement. Defendant timely appealed.

                                         DISCUSSION

                                               I

                       Duty to Instruct on Involuntary Manslaughter

       Defendant was charged with a single count of murder. (§ 187, subd. (a).) Both
voluntary and involuntary manslaughter are lesser included offenses of murder. (People
v. Thomas (2012) 53 Cal.4th 771, 813.) While the court instructed the jury on first and
second degree murder and on two theories of voluntary manslaughter--that the killing
occurred upon a sudden quarrel or heat of passion on sufficient provocation (§ 192, subd.
(a)), or that defendant killed in the unreasonable, but good faith, belief that deadly force
was necessary to defend himself (People v. Cruz (2008) 44 Cal.4th 636, 664)--it did not
instruct the jury on involuntary manslaughter. Defendant contends the court had a sua
sponte duty to instruct on involuntary manslaughter. (§ 192, subd. (b).) We agree.
       “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” ’ ” (People v. Breverman (1998)
19 Cal.4th 142, 154 (Breverman).)
       This instructional requirement includes the duty to instruct the jury sua sponte on
all lesser included offenses if there is substantial evidence from which a jury can
reasonably conclude the defendant committed the lesser, uncharged offense, but not the
greater. (Breverman, supra, 19 Cal.4th at p. 157.) The duty exists even when the lesser
included offense is inconsistent with the defendant’s own theory of the case and the


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defendant objects to the instruction. (Id. at pp. 154, 157.) This rule “seeks the most
accurate possible judgment by ‘ensur[ing] that the jury will consider the full range of
possible verdicts’ included in the charge, regardless of the parties’ wishes or tactics.” (Id.
at p. 155.) “Just as the People have no legitimate interest in obtaining a conviction of a
greater offense than that established by the evidence, a defendant has no right to an
acquittal when that evidence is sufficient to establish a lesser included offense.” (Ibid.)
       In deciding whether there is substantial evidence to support a lesser included
offense instruction, a court determines only the bare legal sufficiency of the evidence, not
its weight. (Breverman, supra, 19 Cal.4th at p. 177.) In doing so, courts “should not
evaluate the credibility of witnesses,” which is a task for the jury. (Id. at p. 162.) We
review the trial court’s failure to instruct on a lesser included offense de novo,
considering the evidence in the light most favorable to the defendant. (People v. Brothers
(2015) 236 Cal.App.4th 24, 30.)
       According to defendant, the evidence at trial warranted an instruction on
involuntary manslaughter on the theory that the killing occurred during the brandishing of
a firearm in violation of section 417, subdivision (a)(2), a misdemeanor. Section 417
provides in relevant part, “Every person who, except in self-defense, in the presence of
any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude,
angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any
fight or quarrel . . . is [guilty of ] [¶] . . . a misdemeanor . . . .” (§ 417, subd. (a)(2).)
       Defendant contends the jury could have believed that in grabbing the rifle during
the struggle with Malia, he committed a misdemeanor that was inherently dangerous to
human life, or that he was criminally negligent in lawfully defending himself against
Malia’s attack. He asserts the court should have instructed the jury with CALCRIM No.
580, which partly provides: “The defendant committed involuntary manslaughter if: [¶]
1. The defendant committed (a crime/ [or] a lawful act in an unlawful manner); [¶] 2. The
defendant committed the (crime/ [or] act) with criminal negligence; [¶] AND [¶] 3. The

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defendant’s acts caused the death of another person.” (Judicial Council of California
Criminal Jury Instructions (2013), CALCRIM No. 580.)
       Although the trial court specifically asked counsel whether they wanted an
involuntary manslaughter instruction, it failed to instruct the jury on the lesser included
offense after the prosecutor objected on relevancy grounds and defense counsel said he
could not conjure a theory to support the instruction. Regardless of whether either
counsel requested or objected to an involuntary manslaughter instruction, however, we
believe the evidence was sufficient to warrant the court giving such an instruction sua
sponte.
       Defendant testified he grabbed the gun with his non-dominant hand after
struggling with Malia and that it accidentally fired. He said he picked it up quickly and
believed Malia was trying to retrieve a loaded gun in the nearby entertainment center.
Besides Malia, who was killed, no one else witnessed the circumstances of the shooting.
       It is well established that the testimony of a single witness, including a defendant,
can constitute substantial evidence to warrant giving particular instructions. (People v.
Lewis (2001) 25 Cal.4th 610, 646.) Although defendant’s testimony appears to conflict
with what he told officers after the shooting, any doubts about the sufficiency of the
evidence to warrant an instruction should have been resolved in defendant’s favor.
(People v. Petznick (2003) 114 Cal.App.4th 663, 677.) Because we are bound to
determine only the bare legal sufficiency of the evidence presented and may not judge
witness credibility on appeal (Breverman, supra, 19 Cal.4th at pp. 162, 177), we find
defendant’s own testimony was sufficient to warrant an involuntary manslaughter
instruction based on a misdemeanor brandishing theory.
       A reasonable jury could believe that defendant committed the misdemeanor
offense of “brandishing” a firearm when he grabbed the rifle during the struggle with
Malia. (People v. Lee (1999) 20 Cal.4th 47, 61 [court erred in failing to instruct sua
sponte on misdemeanor manslaughter theory of involuntary manslaughter where

                                              9
defendant used his gun in quarrel with his wife, who was subsequently shot and killed].)
Because defendant had earlier told police that he was familiar with guns and later
testified that he believed all the guns in the house were loaded, although he did not think
a live round was in the firing position when he grabbed the rifle, a reasonable jury could
also find that defendant was criminally negligent in brandishing the weapon that killed
Malia. By failing to give an involuntary manslaughter instruction sua sponte, the court
erred.

                                               II

                         The Instructional Omission was Prejudicial

         Having concluded that the jury should have been instructed on involuntary
manslaughter as a lesser included offense to murder, we next consider whether the error
was prejudicial. On this record, we find that it was. Although we believe sufficient
evidence supports his voluntary manslaughter conviction, we nevertheless reverse. (See
Hussain (2014) 231 Cal.App.4th 261, 264 [judgment reversed for ineffective assistance
of counsel even though sufficient evidence supported defendant’s conviction].)
         “[T]he failure to instruct sua sponte on a lesser included offense in a noncapital
case is, at most, an error of California law alone, and is thus subject only to state
standards of reversibility.” (Breverman, supra, 19 Cal.4th at p. 165.) A conviction of the
charged offense may be reversed as a result of such an error only if, “ ‘after an
examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it
appears ‘reasonably probable’ the defendant would have obtained a more favorable
outcome had the error not occurred.” (Id. at p. 177; People v. Watson (1956) 46 Cal.2d
818, 836.)
         “Such posttrial review focuses not on what a reasonable jury could do, but what
such a jury is likely to have done in the absence of the error under consideration.”
(Breverman, supra, 19 Cal.4th at p. 177.) “In making that evaluation, an appellate court


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may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.” (Ibid.)
       Here, we cannot say after reviewing the record that the evidence that defendant
intentionally killed defendant was comparatively stronger than the evidence that he shot
Malia without due caution while trying to defend himself, or even accidentally, during a
struggle. Although defendant told police the day of the shooting that Malia “made [him]
do it” “[b]ecause he was pushing [defendant’s] buttons,” and that he shot Malia because
Malia “made [him] get rid of the cats,” at trial defendant testified that the shooting had
nothing to do with cats and that he meant Malia was pushing him during the struggle
when he said Malia was pushing his buttons. He also explained that he was not thinking
properly after he shot himself in the head and that he did not remember his conversations
with the detectives. A reasonable jury could have discounted defendant’s statements the
day of the shooting as a result of the self-inflicted gunshot wound to the head.
       While it is true defendant admitted that he never told police or his family that
Malia had attacked him or that the shooting was accidental before trial, the jury similarly
could have concluded that defendant’s ability to completely recount the events leading up
to the shooting were impaired from his head wound.
       Defendant was acquitted of first and second degree murder. The jury, then, who
saw defendant testify and thus assessed his credibility, did not reject defendant’s
testimony entirely. (Hussain, supra, 231 Cal.App.4th at pp. 271-272.) While defendant
was convicted of voluntary manslaughter, once the jury acquitted him of murder, its only
option was voluntary manslaughter or to let defendant go free. But given the balance of
the evidence presented during trial, and since the jury must have accepted at least some of
defendant’s testimony as true, we cannot confidently say that defendant was unlikely to



                                             11
have received a more favorable outcome had the jury been properly instructed on the
misdemeanor manslaughter theory of involuntary manslaughter.
       We are not persuaded, moreover, by the People’s harmless error argument.
According to the People, the jury determined defendant intentionally shot Malia when it
found true the special allegation under section 12022.53, subdivision (d) that he
personally and intentionally discharged the firearm that killed Malia. The factual
question posed by the omitted instruction was thus allegedly “resolved adversely to the
defendant under other, properly given instructions.” (People v. Wright (2006) 40 Cal.4th
81, 98 [“ ‘In such cases the issue should not be deemed to have been removed from the
jury’s consideration since it has been resolved in another context, and there can be no
prejudice to the defendant since the evidence that would support a finding that only the
lesser offense was committed has been rejected by the jury’ ”].)
       As defendant points out in his reply, however, the jury never found the personal
and intentional discharge enhancement true because it found defendant not guilty of first
and second degree murder. Because that enhancement only attached to the murder
offenses, there was no need for the jury to consider the enhancement’s truth.
       The only enhancement the jury found true was the personal firearm use
enhancement alleged under section 12022.5, subdivision (a), which was attached to the
voluntary manslaughter offense. The jury was instructed that in order to find that
defendant “personally used a firearm during the commission of [the] crime” it had to
conclude beyond a reasonable doubt that “he intentionally [did] any of the follow[ing]:
One, display[ed] the weapon in a menacing manner; Two, hit[] someone with the
weapon; or Three, fire[d] the weapon.”
       While there was no evidence that defendant hit Malia with the rifle, there was
evidence that defendant held the gun in a menacing manner and that the rifle was fired.
During his statement to police, defendant said he pointed the gun in Malia’s direction so
Malia could see the weapon. Upon doing so, Malia asked defendant “what the fuck are

                                            12
you doing?” And, because Malia was killed by a single shot to the head, there was
evidence that the rifle was fired.
       Based on the above evidence, the jury reasonably could have found the personal
use enhancement true based either on brandishing the weapon in a menacing manner or
by firing the rifle during the alleged struggle. The record, however, does not reveal
which option the jury decided upon. Under the circumstances, we believe the error was
prejudicial and requires reversal.

                                        DISPOSITION

       The judgment is reversed and the matter remanded to the trial court for retrial in a
manner consistent with this opinion.



                                                        HULL                  , J.



We concur:



      BLEASE                 , Acting P. J.



      DUARTE                 , J.




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