Brief Bank # B-714 (Re: F 8.42 n6 [Heat Of Passion: Provocation From A Party Other Than The Victim].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION ONE
_______________________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, B000000
(Los Angeles County
v. Superior Court)
JANE DOE,
Defendant and Appellant.
_______________________________________________)
On Appeal from the Superior Court of the State of California
in and for the County of Los Angeles
Honorable Alfonso M. Bazan, Judge
APPELLANT’S OPENING BRIEF
RICHARD L. RUBIN
4200 Park Blvd., Ste. 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for Appellant
Jane Doe
B. The Refusal to Instruct Was Error
Provocation by the Victim Should Not be a
Requirement for Voluntary Manslaughter
In People v. Glenn (1991) 229 Cal.App.3d 1461, the court summarized the law relating to the obligation to instruct on lesser related offenses:
It is black letter law the trial court must instruct the jury on every theory of the case which is supported by substantial evidence. (People v. Edwards (1985) 39 Cal.3d 107, 116 []; People v. Geiger (1984) 35 Cal.3d 510, 519 []; People v. Flannel (1979) 25 Cal.3d 668, 684 [ ].) Where the theory is the defendant committed a lesser included offense the court must instruct on the lesser included offense when there is evidence from which a jury composed of reasonable persons could conclude the defendant was guilty of the lesser crime. (People v. Wickersham (1982) 32 Cal.3d 307, 325 []; People v. Flannel, supra, 25 Cal.3d at p. 684.)
In making the determination whether to instruct on a lesser included offense the “trial court should not . . . measure the substantiality of the evidence by undertaking to weigh the credibility of witnesses, a task exclusively relegated to the jury.” People v. Flannel, supra, 25 Cal.3d at p. 684.) “”‘[T]he fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon.”‘” (Ibid. , quoting People v. Carmen (1951) 36 Cal.2d 768, 773 ( ]. ) As an obvious corollary, if the evidence is minimal and insubstantial the court need not instruct on its effect. (Ibid.; People v. Kaurish (1990) 52 Cal.3d 648, 696 [].) Any doubts about the sufficiency of the evidence to warrant a requested instruction should be resolved in favor of the defendant. (Flannel, supra, 25 Cal.3d at p. 685.)
(People v. Glenn, supra, 229 Cal.App.3d at 1465 [original emphasis].)
It is appellant’s position that she was entitled to the fulfillment of her request for voluntary manslaughter instructions in her murder trial. Voluntary manslaughter is defined as the intentional killing, without malice aforethought, “upon a sudden quarrel or heat of passion.” (§192, subd.(a); see CALJIC No. 8.40 (1989 rev.).) In explaining the phrase “heat of passion”, the California Supreme Court has stated “that ‘passion, need not mean ‘rage’ or ‘anger’ but may be any ‘[violent, intense, high-wrought or enthusiastic emotion’. . . . ” (People v. Berry (1976) 18 Cal.3d 509, 515; People v. Borchers (1958) 50 Cal.2d 321, 329.)
Apart from the issue of whether the source of provocation must be the homicide victim (as discussed below), there can be no question that appellant was in a state of high-wrought, violent emotional turmoil when she killed her baby. Dr. Castellano described appellant as suffering from battered women’s syndrome (“BWS”) as a consequence of the psychological and physical abuse she had suffered at the hands of Mr. J and Mr. Z, coupled with her parents’ threat to kick her out of the house if she became pregnant with a third illegitimate child. All of these stress factors, in Dr. Castellano’s opinion, came to a head at the moment appellant gave unattended birth to her child, while faced with both Mr. J’s continuous refusal to acknowledge the child as his own and reciprocate appellant’s love and her parents’ overhanging threat. On top of this, appellant’s unattended childbirth was accompanied by gestation diabetes and significant loss of blood resulting in appellant’s cognitive impairment which placed her in a disassociative state, wherein appellant acted without awareness of what she was doing. (2 RT 518-524.) Dr. Vicary similarly opined that appellant suffered from BWS (2 RT 575-576) and that appellant “was under tremendous stress in the period prior to, during, and after” her childbirth. (2 RT 598).
Notwithstanding this clear evidence of appellant’s highly-wrought and stressed state of mind at the time of the homicide, the court below refused the defense request to instruct on voluntary manslaughter because it was not the victim, appellant’s baby, who had provoked appellant’s passionate state of mind. In so ruling, the trial court cited People v. Saille, supra, 54 Cal.3d 1103 and People v. Spurlin, supra, 156 Cal.App.3d 119. (3 RT 630-632, 760.)
However, Saille does not foreclose appellant’s position. The issue presented in Saille was whether California law permitted a reduction of what would otherwise be murder to nonstatutory voluntary manslaughter on the basis of voluntary intoxication and/or mental disorder. Upon examining various amendments to sections 22, 25, 28, 29 and 188, the Supreme Court concluded that this category of nonstatutory voluntary manslaughter no longer existed under California law. [Footnote 1] (People v. Saille, supra, 54 Cal.3d at 1107, 1111-1117.) However, in the present case, appellant does not claim that she was entitled to an instruction on nonstatutory voluntary manslaughter; rather, appellant claims that she was entitled to instruction on “heat of passion” voluntary manslaughter, per section 192, subdivision (a).
Spurlin, on the other hand, does address the present question. Defendant Spurlin, upset at his wife’s extramarital sexual escapades, killed her and then killed their sleeping son. The trial court instructed on voluntary manslaughter as to the wife, but denied such an instruction as to the son on the basis that the son had done nothing to provoke Spurlin’s passions. In rejecting Spurlin’s argument that this was error, the Spurlin court [Footnote 2] stated in pertinent part:
It is true that section 192 does not expressly state voluntary manslaughter only applies to situations involving adequate provocation by the victim. Counsel have cited us to no California cases dealing directly with the question of whether the provocation necessary to reduce the charge from murder to manslaughter must be caused by the victim. However, statutory voluntary manslaughter derives from common law principles (see People v. Graham (1969) 71 Cal.2d 303, 315 []; People v. Small [(1970) 7 Cal.App. 3d 347, 355]) and several courts in other jurisdictions, interpreting common law principles, have held the deceased must be the source of the defendant’s rage or passion. (See State v. Fowler (Iowa 1978) 268 N.W.2d 220, 224; Tripp v. State (1977) 36 Md.App. 459 [374 A.2d 384, 389]; State v. Russo (1910) 24 Del. 538 [77 A. 743]; State v. Yanz (1901) 74 Conn. 177 (50 A. 37]; Shufflin v. People (1875) 62 N.Y. 229.) In each of these cases, the defendants, murder convictions were upheld against their contentions they were entitled to manslaughter instructions as to their “nonprovoking” victims. As a result, legal commentators have summarized common law principles regarding “adequate provocation” as follows: “[T]he provocation must have been given by the person who was killed, except in those cases in which the wrong person was killed by accident or mistake, or deceased was present aiding and abetting the person causing the provocation.” (40 C.J.S., Homicide §53, p. 917; see also 40 Am. Jur. 2d, Homicide §59, p. 552.)
(People v. Spurlin, supra, 156 Cal.App.3d at 125-126 [original emphasis; fn. omitted].) [Footnote 3]
Appellant submits that the reasoning of Spurlin is flawed in two respects: 1) Spurlin’s analysis of section 192, subdivision (a) is incorrect as a matter of statutory interpretation, and 2) Spurlin fails to take into account the evolving character and purposes behind the crime of voluntary manslaughter. Appellant addresses these points in turn below.
As the Spurlin court was itself forced to admit, section 192, subdivision (a), defining voluntary manslaughter, refers only to there being a killing “upon a sudden quarrel or heat of passion”; the statutory language makes no reference to the additional legal requirement that the victim act to bring about the defendant’s heat of passion. By invoking the common law to place this additional requirement upon a defendant who is attempting to mitigate her crime to voluntary manslaughter, the Spurlin court ignored the very basic principle of interpretation that a statute is to be construed according to its plain meaning. (People v. Weidert (1985) 39 Cal.3d 836, 843.) Moreover, the Spurlin court further disregarded the special rule applicable to a criminal law statute, that it is to be construed “as favorably to the defendant as its language and the circumstances of its application may reasonably permit.” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631.)
This rule was applied in a similar context in People v. Valentine (1946) 24 Cal.2d 121, wherein the California Supreme Court rejected the common law rule that mere words standing alone could not provide the provocation necessary to mitigate what would otherwise be murder to voluntary manslaughter:
This court has been unanimous in holding that “When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. In other words, criminal statutes will not be built up ‘by judicial grafting upon legislation . . . . [I]t is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arises out of a question of fact, or as to the true interpretation of words or to the true construction of language used in a statute. I (Citations.]” (People v. Ralph (1944) 24 Cal.2d 575, 581 [ ].) Here we do not have even ambiguous language in the statute to support the restrictive limitation which was placed in the instruction.
(People v. Valentine, supra, 28 Cal.2d at 143 [emphasis added].)
In accordance with the rules of statutory interpretation set forth in Weidert, Keeler and Valentine, it was totally improper for the Spurlin court to impose upon a criminal defendant the extra-statutory requisite for voluntary manslaughter that the provocation come from the actions of the victim, in the absence of any statutory language whatsoever to support this requirement.
The second problem with Spurlin is that it fails to take into account the fundamental purposes behind the crime of voluntary manslaughter and the evolving nature of that offense. The crime of voluntary manslaughter, as a mitigation of what would otherwise be murder, originated under the common law as a concession to the infirmity of human nature. (See Mullaney v. Wilbur (1975) 421 U.S. 684, 692-696 [44 L.Ed.2d 508, 95 S.Ct. 1881] [recounting development of voluntary manslaughter].) Under the common law “the distinction between murder and manslaughter persisted. It was said that manslaughter, when voluntary, arises from the sudden heat of the passions, murder from the wickedness of the heart.”‘ (Id., 421 U.S. at 693 (quoting 4 W. Blackstone, Commentaries 190; fn. omitted].) In People v. Freel (1874) 48 Cal. 436, the California Supreme Court stated:
[W]hen the mortal blow is struck in the heat of passion, excited by a quarrel, sudden, and of sufficient violence to amount to adequate provocation, the law, out of forbearance for the weakness of human nature, will disregard the actual intent and will reduce the offense to manslaughter. In such case, although the intent to kill exists, it is not that deliberate and malicious intent which is an essential element in the crime of murder.
(Id. at 437 [emphasis added].)
The fallacy in Spurlin’s reasoning that the definition of voluntary manslaughter must be forever inflexibly locked into its common law criteria, notwithstanding the more liberal wording of California’s section 192, subdivision (a), is demonstrated by the California Supreme Court’s precedent of expanding the criteria for what may constitute adequate provocation for voluntary manslaughter.
The common law did not recognize insulting or abusive words or gestures, not amounting to an assault, as sufficient provocation for a killing; and several early California cases took the same position. (See People v. Turley (1875) 50 Cal. 469, 470; People v. Manzo (1937) 9 Cal.2d 594, 599 []; cf. People v. French (1939) 12 Cal.2d 720, 744 [] [murder conviction]. . .)
Other cases, notably People v. Logan (1917) 175 Cal.45, 48 [], found no such limitation proper under the language of Penal Code section 192. And in People v. Valentine (1946) 28 Cal.2d 121, 137, 144 [], after a painstaking review of the legislative and judicial history, the court overruled the Turley line of cases and followed the Logan line. Thus the question is whether the circumstances would arouse a heat of passion in a reasonable person. . ., and insults may furnish the provocation. [Citations.]
(1 Witkin & Epstein, Cal. Criminal Law (2d ed.1988) §514, pp. 581582.)
As indicated above, in People v. Valentine, supra, 28 Cal.2d 121, the California Supreme Court recognized that the State of California, by enacting a written Penal Code in 1872, had expressly repealed any common law crimes and doctrines which the state had chosen not to include in its written statutory code.
We are not bound to consider the principle written into the repealed Crimes and Punishments Act of 1850 (§23) as being still the law of the state merely because such principle was recognized in the common law. “No act or omission, commenced after 12 o’clock noon of the day on which this code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this code, or by some of the statutes, which it specifies as continuing in force. . ., or by some ordinance . . . .” (Pen. Code, §6.)
(People v. Valentine, supra, 28 Cal.2d at 142.)
The Valentine court found that given a conflict between the common law doctrine that mere words cannot provide the provocation necessary for voluntary manslaughter and the more liberal language of section 192, which failed to include this limitation, the common law limitation could no longer be considered a part of California’s statutory framework.
From the foregoing discussion it appears that the fact that the common law limitation on the types of circumstances which could be regarded as furnishing adequate provocation to reduce a homicide to manslaughter was originally a part of the statutory law of this state is not a proper basis for holding that it is still the law. On the contrary, such fact, in the light of the repeal of the statute which incorporated it, together with enactment of a new law on the same subject with the important limitation deleted, strongly suggests that the Legislature intended a more liberal rule.
This court has been unanimous in holding that “When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. In other words, criminal statutes will not be built up ‘by judicial grafting upon legislation . . . . [I]t is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arises out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.”‘
(People v. Valentine, supra, 142-143 [emphasis added; citations omitted].)
Thus, Valentine indicates the second flaw in Spurlin’s reasoning: The California definition of voluntary manslaughter is an evolving concept, not irrevocably locked into its original common law formulation.
The question thus presented is whether a defendant in appellant’s situation is to be deprived of a jury instruction permitting the option of a voluntary manslaughter verdict solely because the defendant’s passionate emotional state was not provoked by the victim himself. As will be recalled, Drs. Castellano and Vicary both stated that appellant suffered from BWS as result of the abusive treatment she had suffered at the hands of her boyfriends and parents and these psychiatrists further testified as to appellant’s highly-wrought stressful state at the time she gave birth. [Footnote 4] At least one commentator who has examined this question has concluded that voluntary manslaughter should be an option for the jury in the case of a mother who kills her newborn under the stress of postpartum conditions. (Comment, Mothers Who Kill: Postpartum Disorders and Criminal Infanticide (1991) 38 UCLA L.Rev. 669, 727-732.
Ultimately the proper policy question is whether it is reasonable to mitigate the offense from murder to manslaughter given the reality of the woman’s postpartum-disordered life. This is what the California statute [Pen. Code, §192] means when it says that voluntary manslaughter is a killing without malice aforethought. The defendant is not sufficiently culpable, blameworthy or dangerous to be convicted of murder rather than manslaughter, even if the person acted with purpose, knowledge of extreme recklessness as to death. This is what it means to say that voluntary manslaughter is a concession to the infirmity of human nature. The California Supreme Court recognized this in People v. Berry [(1976) 18 Cal.3d 509], when it held that what constitutes “passion and provocation” and what constitutes an adequate cooling off time are questions for the fact-finder to evaluate.
(Id. at 729 [fns. Omitted].)
Appellant’s position, that the law has presently evolved such that voluntary manslaughter instructions are warranted based upon the evidence of her suffering from battered women’s syndrome and her emotionally distraught state at the time of the killing, finds further support in two recent decisions of the California Supreme Court. The first, People v. Humphrey (1996) 13 Cal.4th 1073, acknowledged battered women’s syndrome to be a professionally recognized psychological condition which may be placed into evidence, when appropriate, to show that a particular defendant acted reasonably in self-defense. The Humphrey court described the general nature of BWS syndrome as follows:
Battered women’s syndrome “has been defined as ‘a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figures in their lives.’ (State v. Kelly (1984) 97 N.J. 178, 193 (478 A.2d 364, 371]; see also People v. Aris (1989) 215 Cal.App.3d 1178, 1194 [] [‘”a pattern of psychological symptoms that develop after somebody has lived in a battering relationship”‘]; Note Battered Women Who Kill Their Abusers (1993) 106 Harv.L.Rev. 1574, 1578 [‘a “pattern of responses and perceptions presumed to be characteristic of women who have been subjected to continuous physical abuse by their mate(s]”‘].)” (People v. Romero (1994) 8 Cal.4th 728, 735, fn. 1 [].)
(People v. Humphrey, supra, 13 Cal.4th at 1083-1084.)
The second case, which presents a close analogy to the present situation, is People v. Minifie (1996) 13 Cal.4th 1055. Minifie addressed the question of whether a criminal defendant charged with assaultive crimes who claims self-defense may introduce evidence that he was threatened not by the victim, but by a third party, and acted in self-defense against the victim as a consequence of the third party’s threats. The Minifie court held such evidence admissible. In reaching this result, the Court rejected the argument of the Attorney General that this was in some sense unfair to the victim of defendant’s attack, who had not made or adopted the threats of the third party. In effect, the Attorney General, as quoted below, argued that the claim of self-defense should not be invoked in a situation involving a defendant’s mistake if the victim is actually innocent of engaging in threats or aggressive conduct.
“One who personally threatens another, or one who adopts that threat or who acts jointly with the threatener in attacking the victim, has by his own actions subjected himself to a quicker and harsher self-defense response on the part of the person threatened. . . . The defendant may not, however, claim it was reasonable to use greater force based on unconnected threats of others. The third party has done nothing to cause the use of greater force and is entitled to the protections under the standard rules of self-defense.,”
(Id. at 1067-1068 [quoting the Attorney General’s brief].)
The California Supreme Court responded that the test for legitimate self-defense must come from examining the mental state of the defendant, not the blameworthiness or non-blameworthiness of the victim:
The flaw in the Attorney General’s argument is that it assumes the law of self-defense centers on the victim’s acts and intent. To the contrary, the law recognizes the justification of self-defense not because the victim “deserved” what he or she got, but because the defendant acted reasonably under the circumstances. Reasonableness is Judged by how the situation appeared to the defendant, not the victim. As the Court of Appeal noted, “Because ‘[j]ustification does not depend upon the existence of actual danger but rather depends upon appearances’ [citations], a defendant may be equally justified in killing a ‘good’ person who brandishes a toy gun in jest as a ‘bad’ person who brandishes a real gun in anger.” If the defendant kills an innocent person, but circumstances made it reasonably appear that the killing was necessary in self-defense, that is tragedy, not murder. The test, therefore, is not whether the victim adopted the third party threats but whether the defendant reasonably associated the victim with those threats.
(People v. Minifie, supra, 13 Cal.4th at 1068 [emphasis added].)
Minifie makes clear in the self-defense context that what is determinative is not the blameworthiness of the victim, but, rather, whether the mental state of the defendant corresponds to that appropriate for perfect self-defense. The Minifie holding is similar to other cases which have held that mitigation or defense may be based upon the defendant’s perception of reality even though mistaken. Thus, in People v. Brooks (1986) 185 Cal.App.3d 687, the defendant killed a man he mistakenly believed to have murdered his brother and reversal was required for failure to instruct on voluntary manslaughter based upon heat of passion. In People v. Scott (1983) 146 Cal.App.3d 823, it was held that a hallucinatory delusion could provide an absolute defense of necessity in a situation where the defendant attempted to steal a car based upon his drug-induced belief that he was engaged in attempting to save the life of the president.
Appellant’s situation is analogous to the defendants in Minifie, Brooks and Scott. The evidence presented at appellant’s trial clearly supported a potential finding by the jury that appellant killed her newborn child in a highly passionate emotional state and under circumstances in which the conscience of the community, as represented by the jury, might find her situation less culpable than that of a murderer. Whether the provocation which produced appellant’s heat of passion was initiated by the victim or by other persons was irrelevant to a jury determination as to whether appellant’s state of mind amounted to the mental state equating to voluntary manslaughter. The legal requirement that the provocation come from the victim, rather than someone else, is an artificial requirement, not required by the express statutory language of section 192, subdivision (a), which should not bear upon whether appellant was guilty of voluntary manslaughter rather than murder.
In sum, Spurlin was wrong in holding that the provocation for voluntary manslaughter must arise from the provoking conduct of the victim. This is not required by the statutory language of section 192, subdivision (a) and a criminal statute should be interpreted as reasonably as possible in favor of the defendant. Spurlin was further incorrect in finding that California’s definition of voluntary manslaughter is forever locked into its original common law counterpart–the California Supreme Court’s decision in Valentine, holding that mere words can provide adequate provocation, shows California statutory voluntary manslaughter may, consistent with the social policies underlying this mitigated offense, evolve beyond its common law constraints. Evolving social norms are indicative that battered women’s syndrome and postpartum stress conditions are worthy of societal solicitude, such that a woman who intentionally kills an innocent victim under such heat of passion should have an opportunity for her jury to consider whether she should properly be convicted of the mitigated offense of voluntary manslaughter rather than murder. Minifie clearly stands for the proposition that it is the defendant’s state of mind, not the conduct of the victim, which should determine whether a particular defense or mitigation may be applicable. In this case it should have been for the jury to decide if appellant killed in the heat of passion appropriate to mitigate her offense to voluntary manslaughter, notwithstanding that appellant’s heat of passion was provoked by the actions of persons other then the victim. The trial court erred in refusing the defense request for
voluntary manslaughter instructions.
C. Reversal is Required on This Basis
In refusing to instruct the jury on the possibility of convicting appellant of voluntary manslaughter rather than murder, the trial court violated appellant’s due process right guaranteed by the Fifth, Sixth and Fourteenth Amendments to have the jury instructed in accordance with her theory of the case. (United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202.)
“The failure to instruct on all necessarily included offenses deprives a defendant of the ‘constitutional right to have the jury determine every material issue presented by the evidence’. [Citation.] [S]uch error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted defendant of the lesser included offense’. [Citations].” (People v. Wickersham (1982) 32 Cal.3d 30’7, 335.) Where this error has occurred, reversal is required unless “the factual question posed by the omitted instruction was necessarily resolved reversely to the defendant under other, properly given instructions.” (Ibid.; accord People v. Sedeno (1973) 10 Cal.3d 703, 721.) The test for reversal for failure to instruct on a lesser related offense is the same. (People v. Geiger (1984) 35 Cal.3d 510, 532.)
In the present case no given instruction resolved the factual issue of whether appellant had “unlawfully kill[ed] another human being without malice aforethought but with an intent to kill.” (CALJIC No. 8.40.) Therefore,, under the Sedeno standard reversal is mandated.
Furthermore, this was otherwise a close case as indicated by the length of jury deliberations. The jury deliberated for a full day for purposes of resolving the two closely related charges defendant was accused of. (CT 125-126. In People v. Woodard (1979) 23 Cal. 3d 329, the Supreme Court stated that “nearly six hours of deliberation by the jury before they reached a verdict” indicated that a case “was far from open and shut.” (Id. at 341.) This sentiment was repeated in People v. Cardenas (1982) 31 Cal.3d 897: “Here the jury deliberated [for 12 hours] twice as long as the jury in Woodard, a graphic demonstration of the closeness of this case.” (Id. at 907 (emphasis added].)
This error was plainly prejudicial and requires reversal.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION ONE
_______________________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, B101148
(Los Angeles County
v. Superior Court)
JANE DOE,
Defendant and Appellant.
_______________________________________________)
On Appeal from the Superior Court of the State of California
in and for the County of Los Angeles
Honorable Alfonso M. Bazan, Judge
APPELLANT’S OPENING BRIEF
RICHARD L. RUBIN
4200 Park Blvd., Ste. 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for Appellant
Jane Doe
ARGUMENT
I. THE TRIAL COURT ERRED IN REFUSING TO
INSTRUCT ON VOLUNTARY MANSLAUGHTER
Respondent acknowledges that voluntary manslaughter is a lesser included offense of murder and that “a trial court has a duty to instruct on a lesser included offense when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.” (RB 16-17.) However, respondent argues that appellant was not entitled to a voluntary manslaughter instruction herein because: 1) there was no evidence that the victim provoked appellant’s heat of passion, which respondent asserts to be a legitimate found she intended to kill or, alternatively, it should convict her of involuntary manslaughter if it found that an intent to kill was absent.
The refusal to instruct on voluntary manslaughter was plainly prejudicial and requires reversal of appellant’s second degree murder conviction.
FOOTNOTES:
In In re Christian S. (1994) 7 Cal.4th 768, the California Supreme Court indicated that, in addition to statutory voluntary manslaughter (per §192, subd.(a)), California still recognizes a second (nonstatutory) category of voluntary manslaughter by way of imperfect self-defense.
In a separate part of its opinion, the Spurlin court correctly anticipated the holding of Saille that nonstatutory voluntary manslaughter based upon voluntary intoxication and/or mental illness had been eliminated by statutory changes. (People v. Spurlin, supra, 156 Cal.App.3d at 126-128.)
Spurlin was followed on this point in People v. Bobo (1990) 229 Cal.App.3d 1417. In Bobo the defendant, while apparently suffering from delusions brought on by mental illness, killed her children. Citing Spurlin, the Bobo court upheld the trial court’s refusal to instruct on voluntary manslaughter, because there did not exist “any evidence that defendant’s children provoked her, and the requisite provocation must be from the victim.” (People V. Bobo, supra, 229 Cal.App.3d at 1443 [citing Spurlin and In re Thomas C. (1986) 183 Cal.App.3d 786, 798].)
There is no question that for voluntary manslaughter the “[l]egally adequate provocation [for voluntary manslaughter] may occur in a short, or over a considerable, period of time.” (CALJIC No. 8.42 (1991 rev.); accord People v. Wharton (1991) 53 Cal.3d 522, 571; People v. Berry, supra, 18 Cal.3d at 515-516.)
