Metropolitan News-Enterprise


Friday, December 28, 2018


Page 3


Court of Appeal:

Victim’s Unknown Injury Required Manslaughter Instruction


By a MetNews Staff Writer


A man who was convicted of second degree murder was entitled to an involuntary manslaughter jury instruction because he didn’t know that the victim—whom he argued he had meant to merely beat up—had a preexisting spinal injury, the Court of Appeal for this district held yesterday in reversing the judgment.

Justice Luis A. Lavin of Div. Three said that Los Angeles Superior Court Judge Bernie C. LaForteza prejudicially erred in declining to give the instruction requested by defendant Tyshaun Vasquez.

The defendant and an accomplice, Jordan English, had approached the victim, Eddie Ray Smith Jr., at a skate park in the Crenshaw neighborhood of Los Angeles and rummaged through the man’s pockets. During the encounter, the two punched Smith several times, and Vasquez kicked him in his head and body when he fell to the ground.

The defendant was acquitted of a charge of robbery and was sentenced to 15 years to life in prison for murder.

An autopsy by a medical examiner uncovered the extent of Smith’s injuries. Among them were various cuts, bruises and scrapes—all non-lethal.

The autopsy showed that a spinal fracture in the man’s neck was the cause of death. Directly adjacent to the lethal fracture were metal rods, which had been placed in his neck during orthopedic surgery, rendering the neck more susceptible to injury from a hard impact.

Distinguishing Element

Penal Code §187(a) provides that murder “is the unlawful killing of a human being, or a fetus, with malice aforethought,” while §192 sets forth that manslaughter “is the unlawful killing of a human being without malice.”

The Office of Attorney General argued, on appeal, that Vasquez “cannot credibly claim that stomping on the victim’s head and upper body 20 times did not constitute ‘malice’ sufficient for second degree murder.”

Lavin responded:

“We disagree….[T]here was sufficient evidence from which a reasonable juror could conclude defendant did not intend to kill Smith. Most of Smith’s injuries were nonlethal. To be sure, that defendant unwittingly chose a victim with a preexisting neck condition would usually be irrelevant, for a defendant takes his victim as he finds him and should not benefit from picking a vulnerable one. Here, however, Smith’s prior neck injury speaks to defendant’s subjective awareness of the consequences of his actions because it could show that defendant did not intend to beat Smith badly enough to kill him.”

Prejudicial Nature

Finding omission of the requested instruction prejudicial, he said:

“In the end, without an instruction on involuntary manslaughter, defense counsel was left to tell the jury this: ‘You know, I’d love to tell you, sure, hold Tyshaun responsible; but based on what we have here and now, this case has not been proven beyond a reasonable doubt. It’s just the way it was pled.’

“The court’s refusal to instruct the jury on the lesser included offense of involuntary manslaughter placed defense counsel in the untenable position of arguing that his client—who had plainly killed a man—should be set free.”

The opinion remands the case for retrial.

The case is People v. Vasquez, B281178.


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