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Name: People v. Bohana
Case #: B128162
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/25/2000
Subsequent History: Petn. rehg. den. 11/22/00; Petn. rev. den. 2/14/01

The Court of Appeal rejected the defendant’s contention that the evidence was insufficient to support his second degree murder conviction as a matter of law. Here the defendant had made a “911” call at 3:45 a.m.. He reported that someone had fallen in his pool and was drowning. When emergency personnel arrived they found both the defendant and the unconscious female victim at the pool side. The defendant’s account, which he maintained at trial, was that the victim could swim but had encountered some problems while swimming underwater in his pool. He tried to fish her out with pool equipment, and when that failed he got into the pool and pushed her out of the water. His efforts to revive her failed. Witnesses testified that the victim died of asphyxia. The evidence showed that it would have been difficult or impossible for the defendant to have lifted the victim out of pool from his position in the pool at the deep end. The evidence also showed that, there was a large amount of water in the victim’s lungs that was inconsistent with attempts to revive her. The evidence also showed that the body did not have the type of bruising around the wrists consistent with bodies pulled out of the water shortly after drowning. Instead the body had a lot of blunt force trauma, including a black eye. Finally, the victim’s friends and family members testified that she could not swim and feared the water. From this evidence the jury could have drawn a rational inference of an implied malice murder based on the prosecutor’s theories that the defendant had injured the victim and pushed her, unconscious or conscious, into the water. The court did not err in failing to give a sua sponte jury instruction on accident or misfortune, per CALJIC 4.45. There was nothing in the prosecution or defense evidence that would have permitted the jury to drawn an inference of accidental falling during a physical altercation. The prosecution theory was that the act was intentional, and the defendant denied causation. The court did not err in failing instructing the jury on the lesser offense of involuntary manslaughter under a theory of misdemeanor manslaughter. Defense counsel had objected to this instruction for what he described as “tactical reasons,” and had thereby invited the error. The court did not err in responding to the jury’s questions as to options raised by evidence of provocation by re-reading CALJIC 8.73, by limiting the use of the evidence of provocation to the decision of whether the offense was first or second degree murder, or by refusing to instruct the jurors on involuntary manslaughter. The defense had agreed to the form of the answer to the inquiry. Moreover, the court was complying with the previous objection to instruction on involuntary manslaughter.