People v. Polley

Opinion

BROWN (Gerald), P. J.

Stephen Polley appeals his conviction of first degree murder, contending the superior court erred in refusing to instruct the jury on involuntary manslaughter, in giving an improper definition of malice and in allowing a photograph of the victim’s heart into evidence.

In October 1981 Polley and his wife Maria separated. In December 1981 Maria moved into a new residence; in an attempt to hide from him, she did not give Polley the new address. Less than a month later, however, Polley found Maria’s new home. On the morning of January 4, 1982, he phoned a friend and told her he had found Maria and he was going to kill her. On that same morning, he visited Maria’s apartment and broke a window. He then went to the naval base where he was stationed, called Maria and told her he knew where she lived, left his car and returned to Maria’s apartment in a friend’s car. After receiving Policy's call, Maria left work and went to her apartment. When Polley arrived she refused to let him in. He entered through the window he had broken earlier. After Polley and Maria argued, he shot her twice, once in the back of the head and once in the chest. The second shot passed through Maria’s heart.

Polley was charged with murder (Pen. Code, § 187) and entry of an inhabited building with the intent to commit murder (Pen. Code, § 459). Both counts were accompanied by an allegation of use of a firearm (Pen. Code, § 12022.5). The jury found Polley murdered and burgled, using a firearm in committing both offenses. Policy's motion for a new trial was denied and he was sentenced to prison 27 years to life for murdering, while sentence for the burglary was imposed and stayed.

[1091]

Policy’s main contention on appeal is the superior court erred in refusing to instruct the jury on involuntary manslaughter. Penal Code section 192 says a defendant may be convicted of involuntary manslaughter if it is found he killed another human being without malice “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; . . At trial Polley contended evidence was presented to support a finding this section applies on two grounds: (1) the jury could find the killing occurred during the commission of a lawful act done in a negligent manner because Polley testified he shot Maria while he was attempting to commit suicide and (2) the jury could find the killing occurred during the commission of a misdemeanor because Polley exhibited a firearm in a rude, angry or threatening manner in violation of Penal Code section 417, subdivision (a)(2). We need not decide whether either of those two theories is valid, because the verdict shows the jury rejected the first prerequisite to an involuntary manslaughter verdict: the absence of malice. Any error in the failure to give the involuntary manslaughter instruction, therefore, was harmless.