Trial court erred by failing to instruct on lesser included offense of involuntary manslaughter where substantial evidence showed the defendant lacked awareness of the victim’s particular vulnerability to fatal injury. Vasquez and a codefendant were charged with special circumstance first degree murder and attempted robbery after an assault on Smith resulted in his death. Smith had metal rods in his neck from a prior surgery, making him susceptible to neck injury. The medical examiner testified most of Smith’s injuries were nonlethal on their own. However, Smith’s neck fractured near the rods as a result of blunt force trauma, with the rods possibly contributing to the break. The trial court denied Vasquez’s request for an involuntary manslaughter instruction. He was convicted of second degree murder, but acquitted of all other charges. Vasquez appealed. Held: Reversed and remanded. An unlawful killing without malice is involuntary manslaughter. An instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant acted without conscious disregard for human life and did not form the intent to kill. As applicable here, implied malice requires a subjective awareness that the conduct carries a high degree of probability it will result in death. (People v. Knoller (2007) 41 Cal.4th 139, 152.) For a beating to constitute murder, there has to be either an intent to kill or such wanton and brutal use of the hands or feet without provocation as to indicate that they would cause death. Here, there was substantial evidence from which a reasonable juror could conclude Vasquez was not subjectively aware that his actions could kill Smith. From the medical examiner’s testimony, a reasonable juror could have concluded Vasquez’s blows were not severe and he believed beating up Smith would injure but not kill him.

The error was prejudicial because (1) the instruction embodied the defense theory of the case, (2) evidence of malice was not overwhelming, and (3) the jury struggled with its verdict. The failure to instruct on a lesser included offense is more likely to be prejudicial where it strikes at the heart of the defense. Here, counsel structured the defense around the element of malice in his opening statement and cross-examination of the medical examiner. Refusal to instruct on involuntary manslaughter forced defense counsel to argue Vasquez should be set free in closing argument. Additionally, the evidence of malice was not overwhelming. That defendant unwittingly chose a victim with a preexisting condition is usually irrelevant because a defendant takes his victim as he finds him. However, Smith’s prior neck injury speaks to Vasquez’s subjective awareness of the consequences of his actions because it could show that he did not intend to beat Smith badly enough to kill him. Finally, the jury’s acquittal of multiple counts and enhancements indicate that they rejected the prosecutor’s theory of the case and at least some of the only percipient witness’ testimony. The jury deliberated for two days, asked several questions, and received supplemental closing arguments. As such, it is reasonably probable Vasquez would have achieved a better result if the jury had been properly instructed. Therefore, his conviction must be reversed and the matter remanded for retrial.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B281178A.PDF