B-720

Brief Bank # B-720 (Re: F 8.45 n6 [Involuntary Manslaughter As LIO Of Murder Based On Heat Of Passion].)

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NOTE: The following document consists of two separate opening briefs, B-720a and B-720b.

NOTE: The text of the footnotes appear at the end of the document.

BRIEF # B-720a

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

_________________________________________

PEOPLE OF THE STATE OF CALIFORNIA, 3 Crim. C000000

Plaintiff and Respondent, Yolo County

Superior Court

v. No. 00000

JOHN DOE and

RICHARD ROE,

Defendants and Appellants.

_________________________________________)

Appeal from the Judgment of the Yolo County Superior Court

Honorable Stephen L. Mock, Judge

APPELLANT DOE’S OPENING BRIEF

STEPHEN GREENBERG

Attorney at Law

P.O. Box 2190

Nevada City, CA 95959

Telephone: (916) 265-3696

State Bar No. 88495

Appointed by the Court of

Appeal, In Conjunction With the

Central California Appellate

Program–Independent Case

Attorney for Appellant

4. Heat Of Passion

Doe’s counsel requested voluntary manslaughter instructions based on a heat of passion theory. (CALJIC Nos. 8.37, 8.42, 8.44, 8.50, 8.72, 8.73, 8.74; CT 620-623, 625-627; RT 1459, 1462.) The court denied the instructions, based on no evidence or prosecution charge of an intent to kill. (RT 1461-1462.) But based on both the homicide statutes and the defense theory, an involuntary manslaughter instruction should have been given.

The issue here involves the relationship between implied malice and mitigated malice. As to the sudden quarrel/heat of passion theory of manslaughter, appellant is unaware of case law expressly addressing the issue of whether a homicide committed without the intent to kill could be considered involuntary manslaughter. People v. Shannon, supra, wrestled with a related but not identical question, ultimately rejecting the defendant’s argument that the trial court should have instructed the jury “that an unintentional killing, committed in conscious disregard for its consequences, can be reduced to voluntary manslaughter by the existence of heat of passion or sudden quarrel.” (46 Cal.App.4th at 1369, italics in original, underscoring added.) The Court of Appeal shared the defendant’s concern that despite a finding (heat of passion/sudden quarrel) which by statute should negate malice, the instructional definition of voluntary manslaughter as an intentional killing effectively would require a verdict of second degree murder. (Id. at 1369-1370.) [Footnote 1]

But under this court’s analysis in People v. Cameron, supra, if the jury determines that malice was absent based on a manslaughter theory such as heat of passion, an otherwise unlawful, unintentional killing should be treated as involuntary manslaughter. Under those circumstances, the statutory description of involuntary manslaughter is not “an exclusive measure of the unlawful killings which can be treated as involuntary manslaughter[,]” given “the overarching general description of manslaughter.” (30 Cal.App.4th at 605, emphasis in original.) Thus, as noted above, Cameron recognized that an offense which would be deemed voluntary manslaughter but for the absence of an intent to kill is no less unlawful and therefore must be involuntary manslaughter. (Id. at 604-605; cf. ibid., fn. 8.) Assuming substantial evidence that the killing, otherwise voluntary manslaughter based on heat of passion, was unintentional, the jury–should have been instructed on that theory of involuntary manslaughter as well.

“[W]hen the evidence suggests that the defendant acted in the heat of passion upon adequate provocation, the trial court must instruct on voluntary manslaughter. [Citation.] Both provocation and heat of passion must be affirmatively demonstrated. [Citations.]” (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1703-1704.)

A subjective “heat of passion” sufficient to negate malice “may be any violent, intense, high-wrought or enthusiastic emotion” other than revenge, and the defendant may be aroused to it “over a considerable period of time[,]” as long as the defendant acts “under [its] smart . . . .” (People v. Wickersham (1982) 32 Cal.3d 307, 326-327, disapproved on another ground in People v. Barton, supra, 12 Cal.4th at 200-201, internal quotation marks omitted.) Evidence that the defendant acted in an uncontrollable rage is sufficient (People v. Berry (1976) 18 Cal.3d 509, 516), and intoxication is a circumstance from which the jury may find heat of passion. (People v. Cameron, supra, 30 Cal.App.4th at 601.)

That is precisely what the evidence showed here: Doe testified that he was intoxicated at the time of his sudden attack on Mr. W, and Roe confirmed they had been drinking alcohol and smoking marijuana. Doe added that the attack arose impulsively from a loss of control, and Roe and Sullivan corroborated its suddenness. Moreover, the evidence showed that the drug deal had broken down at a time when Doe had been out of work for several months. According to both defendants, shortly before Mr. W came over, Sullivan was angry about Mr. W’s debt; Roe added that she was violently angry and “taunt[ed] (Doe], provoking him into anger.” (RT 1085-1086, 1119.)

As to the objective element of provocation, there is no specific type required, and verbal provocation may be sufficient. (People v. Berry, supra, 18 Cal.3d at 515.) It may be anything which arouses great anger. (People v. Fenenhock, supra, 46 Cal.App.4th at 1704.) The evidence must be sufficient to suggest that the provocation would have “arouse[d] feelings of homicidal rage or passion in an ordinarily reasonable person. [Citation.]” (People v. Pride (1992) 3 Cal.4th 195, 250.)

The provocation evidence here is not unlike that held sufficient to require heat of passion instructions in People v. McCowan (1986) 182 Cal.App.3d 1, 7-9, 15-16: The day he shot his former wife and her stepfather, the defendant got some Librium and had eight alcoholic drinks. He and the first victim had recently been through bitter divorce proceedings, their relationship was strained, and he was under stress. The victim made an obscene gesture at him; he became enraged; and when she appeared to be reaching for something he shot her in hatred. Shortly thereafter, feeling a surge of hate, he shot the second victim. Most of the evidence directly concerned heat of passion, of course, but this court found it sufficient on the issue of provocation as well.

In the instant case, there was evidence that: Doe gave Mr. W $5000, but Mr. W produced neither drugs nor the money. That became a problem for Doe. His repeated attempts to contact Mr. W, who had been his friend, brought no response. In mid-March, while taking property from Mr. W’s house to pay off the debt, Doe heard from Mr. W that he had the money and would be back. But as of March 28, Mr. W still owed him up to $4000; he had not paid back any money. When Mr. W arrived, he gave Doe some money. But when Doe asked what happened with the rest of it, Mr. W smirked at him, saying, “You know what happened to the money. It got took.” Doe immediately “lost it.”

A “‘smirk[]'” and “’real dirty (look]’”with name-calling from a total stranger in the absence of any other. facts contributing to a finding of provocation, “may be ‘intimidating’ in some circles. However, even if intimidating, this alone could not be deemed enough, on this evidence, to provoke a reasonable person to shoot someone.” (People v. Lucas (1997) ___ Cal.App.4th ___ [97 Daily Journal D.A.R. 7189, 7194-7195].) [Footnote 2] The Lucas court suggested that, at minimum, “evidence of what provocative ‘names’ the car’s occupants were yelling [citation]” would have been necessary. (Id. at 7194, citing this court’s decision in McCowan, supra, where the “victim had made an ‘obscene gesture,[].”)

In McCowan, the obscene gesture came from a former spouse, during a strained relationship following a bitter divorce. Here, the smirk came from someone who had been a friend but who recently took $5000 of the defendant’s money for drugs without delivering or returning either or explaining what happened; stopped returning the defendant’s many calls and messages; said he would return with the money but did not do so; then suddenly showed up with some money and responded with a smirk when asked about the rest. Given these circumstances, a reasonable jury “could conclude” there was adequate provocation” (People v. Glenn, supra, 229 Cal.App.3d at 1465, emphasis in original.)

In sum, the jury should have been given involuntary manslaughter instructions, and the court’s unjustified restriction of available guilt theories effectively undermined the reasonable doubt standard, denying appellant his constitutional due process right “‘to have the jury determine every material issue presented by the evidence.’ [Citations.]” (People v. Geiger (1984) 35 Cal.3d 510, 519-520, 530; U.S. Const., 14th Amend.; Cal. Const. , art. I, § 15.) By effectively providing the jury with an all-or-nothing choice with respect to culpability for homicide, the failure to instruct on lesser offenses enhances the risk of an unwarranted conviction . . . .” (Beck v. Alabama (1980) 447 U.S. 625, 638 [65 L.Ed.2d 392, 403, 100 S.Ct. 2382], re capital cases; Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 818-819 [federal courts split re noncapital cases].)

D. The Error Requires Reversal.

“[A]n erroneous failure to instruct on a lesser included, offense constitutes a denial of the right to have the jury determine each material issue presented by the evidence, and such error cannot be cured by weighing the evidence in an effort to determine that it would not be reasonably probable that a correctly instructed jury would have convicted defendant of the lesser included offense.” (People v. Ray, supra, 14 Cal.3d at 32.) Nevertheless,

in some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely against the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury. (People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on another point, People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.)

The Sedeno rule should not be applied to affirm a conviction where under the particular circumstances it would be inappropriate to do so. (See People v. Montiel (1985) 39 Cal.3d 910, 929-930, conc. opn. of Kaus, J.)

Applying the Sedeno test, the argument that a “first degree murder conviction was improper because the jury was not instructed on involuntary manslaughter[]” has been characterized as “normally without merit.” (People v. Polley (1983) 147 Cal.App.3d 1088, 1091, emphasis added.) To the extent that Polley’s observation is based on the difference between first and second degree murder verdicts, however, it appears to be a reflection of the typical case in which the former verdict is based on a finding that the murder was “willful, deliberate, and premeditated[.]” (§ 189; see also CALJIC No. 8.20, requiring a finding that “the killing was, preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill”; People v. Marshall, supra, 13 Cal.4th at 852, fn. 10: “Even were intent to kill required here, the jury necessarily found such intent in convicting defendant of three counts of murder in the first degree in a case tried exclusively on a theory of premeditation and deliberation.”)

In the situation described above, it is the necessary finding of intent to kill which resolves the potential involuntary manslaughter verdict against the defendant. By contrast, first degree murder by torture does not rely on such a finding. The standard instruction, given in this case, informs the jury that “[t]he crime of murder by torture does not require any proof that the perpetrator intended to kill his victim . . . .” (RT 1498; CT 439; CALJIC No. 8.24.)

Thus, Sedeno requires a determination of whether the factual issues that would have been presented by involuntary manslaughter instructions as explained above–intoxication negating implied malice, assault or battery without malice, criminal negligence, heat of passion–were “necessarily” resolved against Doe in another legally proper context. Here, the jury found an unlawful killing without the intent to kill; they should have been faced with a corollary issue: Did the defendant act with or without implied malice?

Heat of passion theory was of course never presented to the jury under any instruction and so could not have been resolved. The same result with criminal negligence and the Cameron theory of dangerous-felony manslaughter: In this unintentional homicide case, the jury found implied malice in convicting Doe of murder and not the lesser offenses of assault or battery. But the jury was unaware of another, somewhat less culpable mental state (criminal negligence) which also would have resulted in a homicide conviction. And the rejection of the non-homicide, general intent crimes of aggravated assault and battery cannot be deemed a rejection of involuntary manslaughter. “[T]he question [of implied malice] was not resolved by the jury as it did not have the full range of applicable lesser included offenses offered to it.” (People v. Webber, supra, 228 Cal.App.3d at 1165. )

Finally, the jury implicitly rejected Doe’s intoxication defense, finding him guilty of the charged specific intent/mental state crimes. But in addition to the problem just noted–a reasonable doubt grounded on intoxication evidence would have ruled out culpability for the homicide–it would have been reasonable for the jury to apply intoxication simply to resolve the murder/manslaughter issue. The other two intent elements (involving torture and murder by torture) were directed at infliction of pain and do not necessarily correspond to a conscious disregard of danger to life.

It should be noted that the jury was entitled to reach the initial finding as to implied malice murder even before considering the issue of degree. [Footnote 3] Under the circumstances of this prosecution, as outlined at issue I, supra, there were a variety of factual and legal theories available with respect to the homicide in Count 1. In both testimony and argument Doe’s position was consistent: He assaulted and beat Mr. W, with no intent to kill him; Doe accepted responsibility for his role in the death, but maintained that he neither tortured Mr. W nor aided Roe in doing so. (RT 1248, 1314, 1598, 1609.) As a logical consequence, the jury was free to determine first that Doe was guilty of implied malice murder as a perpetrator, then (using derivative liability theories) whether he was also guilty of torture and first degree murder by torture. What they could not know, unfortunately, was that there were two separate legal bases for homicide guilt which corresponded with Doe’s theory of the case. This choice was denied them, so it is logically impossible to determine whether the malice issue was at some point “necessarily” resolved against Doe. (People v. Sedeno, supra, 10 Cal.3d at 721.)

Moreover, the rule bars reversal only where the erroneously-omitted issue was necessarily resolved against the defendant under “other, properly given instructions.” (10 Cal.3d at 721, emphasis added.) In that case, reversal was required because of separate instructional error which precluded “jury consideration of the application of defendant’s diminished capacity defense to the existence of malice, the element which distinguishes murder from either voluntary or involuntary manslaughter . . . .” (Ibid.)

Here, as appellant will argue in the context of issue VIII, infra, the trial court’s instructional error with respect to the conspiracy theory of liability effectively made it easier for the jury to find Doe guilty of torture murder, independently of the underlying issue of murder. Thus, the first degree verdict should not be relied on to save the murder finding from the failure to instruct on involuntary manslaughter. The matter should be reversed and remanded for a new trial or reduction to the least offense for which Doe would have been convicted but for the error–involuntary manslaughter. (People v. Cameron, supra, 30 Cal.App.4th at 605.)

B-720a FOOTNOTES [Footnotes 1-3]:

Footnote 1: Shannon did not address the situation where the evidence arguably shows a heat-of-passion killing which was unintentional, while a reasonable doubt exists as to the implied-malice mental state otherwise required for second degree murder. Under the theory discussed in the previous section, for example, if a defendant acted both in the heat of passion and with no more than criminal negligence, involuntary manslaughter is shown. In such a case, however, the heat of passion would merely be an evidentiary concern, rather than a statutory theory against malice. (Cf. People v. Blakeley (1997) _ Cal.App.4th _ [97 Daily Journal D.A.R. 6727, 6729]: “(H]eat of passion[] has no special bearing on the crime of involuntary manslaughter. It neither allows a conviction of this crime, nor prevents one.” Appellant submits that this dictum is true only in the circumstances discussed in the present footnote. Blakeley did not address the situation where a killing was arguably committed with what would be implied malice but for the heat of passion. (Blakeley, decided May 28, 1997, is not yet. final. (Rule 24(a).))

Footnote 2: Lucas, decided June 6, 1997, is not yet final. (Rule 24(a).))

Footnote 3: The court instructed the jury that while second degree murder is a lesser offense to that of first degree murder, they had “discretion to choose the order in which (they] evaluate each crime . . . .” (RT 1500; CT 441; CALJIC No. 8.75.) The court added, “if you should find the defendant guilty of murder, you must determine . . . whether you find the murder to be of the first or the second degree.” (RT 1503; CT 445; CALJIC No. 8.70.)

BRIEF # B-720b

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent, No. H00000

v. Monterey County

Superior Court

JOHN DOE, No. SC0000

Defendant and Appellant,

___________________________________/

Appeal from the judgment of the Monterey County Superior Court

Honorable Robert O’Farrell, judge

APPELLANT’S REPLY BRIEF

SIXTH DISTRICT APPELLATE PROGRAM,

in association-with

STEPHEN GREENBERG

Attorney at Law

P.O. Box 2190

Nevada City, CA 95959

Telephone: (916) 265-3696

State Bar No. 88495

Appointed by the Court of Appeal,

under the sixth District Appellate Program

Independent Case System

Attorney for Appellant

III

AN UNLAWFUL KILLING COMMITTED “UPON A SUDDEN

QUARREL OR HEAT OF PASSION” IS VOLUNTARY

MANSLAUGHTER, WHETHER THE DEFENDANT’S

HOMICIDAL INTENT IS EXPRESS OR IMPLIED.

Appellant’s argument may be summarized as follows: Under California homicide law, heat of passion/sudden quarrel with adequate provocation is a defense to the malice element of murder, whether malice is express or implied. The standard instructions given by the court limited the theory of sudden quarrel voluntary manslaughter to an intended killing, despite substantial evidence that the fatal stabbing was no more than an intentional act committed with disregard of the risk to life. Because the second degree murder verdict may have been based on a finding of implied malice, the erroneous limitation on the voluntary manslaughter theory prejudiced Doe, requiring reversal. (AOB 42-55.)

Respondent disagrees, arguing as follows: Section 192 is properly construed as identifying intent to kill as the sole mens rea of voluntary manslaughter, so provocation cannot mitigate implied malice. This position is logical and furthers sound policy. Even if error occurred, it was harmless because the evidence clearly showed express malice. (RB.26-34.)

A. This Court Is Not Bound By A Judicial “Rule” That Sudden Quarrel Voluntary Manslaughter Requires An Intent To Kill Which Cannot Be Implied

Not surprisingly, respondent relies on “the long standing rule ‘that voluntary manslaughter is an unlawful killing with an intent to kill but without malice.’ [Citations.]” (RB 26.) Respondent cites Supreme Court decisions from 1959 to 1995, but refuses to examine either the historical or precedential contexts for their typically unexplained statements of the rule (People v. Shannon, supra, 46 Cal.App.4th at 1370)–despite appellant’s placing both contexts at issue in his opening brief. Historically, the “rule” did not develop through any “thoughtful examination” of the homicide statutes; instead, it arose through a misreading of earlier case law and a construction of the term “voluntary” in section 192 as requiring “intentionality[.]” (See People v. Cameron, supra, 30 Cal.App.4th at 604, fn. 8; cf. United States v. Paul (9th Cir. 1994) 37 F.3d 496, 499, fn. 1 [construing identical federal manslaughter statute, court clarified as dicta previous description of “intent without malice” as element of voluntary manslaughter; passion/provocation equally applicable to reckless disregard killing.) [Footnote 4]

Erroneous construction or not, appellant understands respondent’s and Shannon’s concern with deference to Supreme Court authority. (46 Cal.App.4th at 1369.) But that authority is only as binding as its precedential context(s). And appellant is unaware of any case in which the Supreme Court was asked to or did examine the elements of sudden quarrel voluntary manslaughter in connection with the distinction between express and implied malice. The point of appellant’s argument is that such an examination reveals the distinction to be immaterial. But in the absence of a Supreme Court decision rejecting (or even considering) this argument, respondent’s “rule” has value only to the extent. that its logic is persuasive. (People v. Dillon (1983) 34 Cal.3d 441, 473-474 (despite “numerous opinions of this court” which “recite” a principle of homicide law without examination, -none of those opinions speaks to the constitutional is sue now raised, and their language is therefore not controlling”] (emphasis added); County of San Bernardino v. Superior Court (1994) 30 Cal.App.4th 378, 388.) And as observed in both Cameron (30 Cal.App.4th at 604-605, fn. 8) and Shannon (46 Cal.App.4th at 1370), even on its own terms the “rule”‘ is both illogical and unpersuasive. Thus, in the context of a truly “novel ‘issue’” (id. at 1368) requiring a more thorough examination of homicide law than previously undertaken, respondent’s “rule” need not be treated as controlling.

Unfortunately, Shannon–apparently the only published decision in California to have been presented with the issue raised here–failed to address it, erroneously deferring to respondent’s “rule” without analysis. Thus, not only is the First District’s opinion nonbinding on this court (Auto EquitySales., Inc. v. Superior Court, supra, 57 Cal.2d at 455); it offers no rationale for rejecting appellant’s argument that the “rule” must be seriously examined in the novel context presented here.

So that it is clear: Appellant’s construction of the homicide statutes does not require this court to ignore Supreme Court authority in this area. Indeed, even if voluntary manslaughter does require an intent to kill according to that authority, this court is free to adopt any or all of three supplementary constructions supported by additional Supreme Court- case law:

1. Additional Manslaughter Theory Based On Analysis of Statutory Context. (See also AOB 46-47.) Decisions characterizing voluntary manslaughter as requiring an intent to kill have not examined this element in connection with relationships between murder, manslaughter, express and implied malice, although the issue here requires such an analysis. The court’s explanation of those relationships in People v. Doyell (1874) 48 Cal. 85, 95-96 is thus on point and is still good law. (1 Witkin, Cal. Crim. Law (2d ed. 1988) § 503, p. 569.) Doyell held that implied malice exists in several situations, including where (a) an unlawful killing is committed without the “apparent” intent to kill, and (b) it is “not done in the heat of passion . . . .” (48 Cal. at 95, emphasis added.) It follows that there is no implied malice where the defendant intended to kill, and also where a killing is “done in the heat of passion.” Indeed, the result of passion/provocation, according to Doyell is that “intent to kill” is not even at issue. (Id. at 96.)

Theories of manslaughter are not strictly limited by the specific statutory descriptions of “voluntary” and “involuntary” manslaughter. (People v. Burroughs supra, 35 Cal.3d at 835-836.) “‘[T]he basic definition set forth at the outset of Penal Code section 192 is of controlling significance-”Manslaughter is the unlawful killing of a human being, without malice.’” [Citation.]” (Id., at 836.) The Court of Appeal is free to apply this principle where appropriate, even if it results in a manslaughter scenario not expressly stated in the statute or noted in previous cases. People v. Cameron, supra, 30 Cal.App.4th at 604-605.)

Since 1978, when different punishments were enacted for the two types of manslaughter, any application of the Burroughs principle to the “basic definition” of manslaughter must also categorize the offense as either “voluntary” or “involuntary.” (People v. Cameron, supra, 30 Cal.4th at 604, & fn. 8.) Even if “voluntary” implies “with intent to kill,” the law makes it clear that a heat of passion killing is both “unlawful” and “without malice..” (§ 192.) Logically, the defendant’s “voluntary”–i.e., “intentional” and “deliberate[]” (CALJIC No. 8.1l)–act against the victim “upon a sudden quarrel or heat of passion” should be punished as voluntary manslaughter. That is so, whether the defendant specifically intended death or consciously disregarded its risk. Thus, can be reconciled with the “intent to kill” cases by recognizing a heat of passion killing in conscious disregard for life as an additional theory of voluntary manslaughter. (Cf. People v. Love (1980) 111 Cal.App.3d 98, 105-106 [describing implied malice as involving “a voluntary choice to commit a person endangering act” while “not acting in the heat of passion or on adequate provocation”] (emphasis added).)

Respondent criticizes appellant’s reliance on correctly noting that the Supreme Court “applied a statutory version of murder, the (‘Crimes and Punishment Act of 1850′) [sic), which was repealed and replaced by the Penal Code in 1872. [Citations.]” (RB 28.) But that observation hardly makes the case meaningless. On the contrary, as noted earlier, Witkin continues to quote Doyell as illustrating the nature of implied malice murder. (1 Witkin, Cal. Crim. Law, supra, § 503, p. 569.) While there were some material differences between the 1850 and 1872 homicide statutes (see, e.g., People v. Valentine (1946) 28 Cal.2d 121, 138), [Footnote 5] the basic definitions of murder, malice and manslaughter were essentially the same for purposes of the instant issue and Doyell’s discussion. (Cf. People v. 0gen (1985)168 Cal.App.3d 611, 621-622.) Indeed, those definitions were based on common law principles:

In its initial session, on April 16, 1850, the California Legislature adopted “An Act concerning crimes and Punishments,” the first statute regulating the criminal law of this state. (Stats. 1850, ch. 99, p. 229.) . . . . As at common law, murder was defined as the unlawful killing of a human being with malice aforethought (§ 19) . . . . Manslaughter, an unlawful killing without malice, was divided into voluntary and involuntary forms. (§ 22.) People v Dillon, supra, 34 Cal.3d at 465.) [Footnote 6]

Given the absence of any material difference between the two sets of homicide laws vis-a-vis the instant issue, Doyell’s analysis has continued validity. People v. Dillon, supra, 34 Cal.3d at 467-468; § 5 [“The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.”]; cf. McCartney v. State (Tex.Cr.App. 1976) 542 S.W.2d 156, 160 [cases decided under former voluntary manslaughter statute instructive in interpreting present statute].)

In any event, respondent also purports to rely on Doyell claiming that it defined voluntary manslaughter as an intentional killing. Respondent seizes on the following statement, divorced from. any context: “. . . . the law, in some cases of voluntary manslaughter, disregards the actual intent to kill, when the killing is done in a sudden passion, caused by sufficient provocation.” (RB 28, emphasis added; 48 Cal. at 96.) It should be clear that the quoted statement does not treat intent to kill as an element of voluntary manslaughter. The point is that whatever the defendant’s intent, even if to kill, the heat of passion defense is applicable. This point was clarified in the subsequent sentence: “. . . in [passion] cases (out of forbearance for the weakness of human nature) the slayer is presumed not to be actuated by an intent to kill, although such intent may in fact exist.” (Ibid. , emphasis added.) And it was clarified even further in a case decided shortly thereafter: Heat of passion law “will disregard the actual intent and will reduce the offense to manslaughter.” (People v. Freel, supra, 48 Cal. at 437, emphasis added; see AOB 51.)

Nor was this sensible construction of homicide law completely forgotten once the erroneous construction of an intent to kill element began. In People v. Slater (1943) 60 Cal.App.2d 358, the Court of Appeal relied on the heat of passion theory to reduce a judgment of second degree murder to manslaughter, despite the defendant’s consistent denial that she intended to shoot the victim. (Id. at 360, 365, 371.) Indeed, Slater affirmed the trial court’s denial of self-defense instructions based on the defendant’s claim that she was only trying to scare the victim. (Id. at 366-367.) Explaining the modified judgment, however, the court made it clear that the defendant’s specific intent was irrelevant:

“When a mortal blow is struck upon a sudden quarrel or in the heat of passion, upon adequate provocation, the actual intent is disregarded. In such case, although the intent to kill may exist, it is not that malicious intent which is an essential element in the crime of murder.” (Id. at 371, emphasis added.)

Once again, the statutory framework for homicide crimes dictates this result.

Respondent also quotes Doyell’s “use of the disjunctive” in describing malice as “’implied from the absence of considerable provocation, the wanton recklessness, or the felonious purpose . . . .’” (RB 29; 48 Cal. at 96, emphasis added by respondent.) Doyell was of course referring to the statutory definitions in the 1850 Act (§§ 21, 25), and as noted above, these were substantially the same as the definitions adopted in the Penal Code. Respondent also points to the Code, and its analysis becomes clear, if erroneous. (RB 27-28.)

The language at issue is in section 188. After defining express malice as based on a deliberate intent to kill, the statute turns to the other category of malice: “It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” Based on this sentence, and with no citation to authority, respondent offers the following:

[T]he statute sets forth the “malignant heart” murder in the disjunctive, malice being implied if the circumstances demonstrate an intentional and the defendant fails to go forward with evidence of mitigating circumstances or if the evidence shows the defendant acted with a “malignant heart.” The language of section 188 indicates that provocation will not mitigate a wanton homicide but only an intentional one. Otherwise, the disjunctive clause relating to “malignant heart- homicide would be surplusage. (RB. 28, italics in original, underscoring added.)

Respondent’s approach fails. In the first place, the purported link between “intentional killing” and absence of mitigation evidence makes no sense. The statute’s reference to intentional killing is limited to the definition of express malice. While the Legislature theoretically could have repeated the reference in defining implied malice as a killing without provocation, it did not do so. As respondent recognizes (RB 27), from the “no considerable provocation” language “the rule is derived that ‘When the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder; but in such case the verdict should be murder of the second degree . . . . ‘ [Citations.]” (Jackson v. Superior Court (1965) 62 Cal.2d 521, 525-526, italics added by court, underscoring by appellant.) “’Of that crime an actual intent to kill is not a necessary component and malice is implied from such assault in the absence of . . .mitigating circumstances.’ [Citations.]” (Id. at 526, emphasis added.)

The Supreme Court could not have been clearer: If the evidence shows only a killing without considerable provocation, malice is implied; in that context, “an intentional killing” is irrelevant. Correspondingly, nothing in section 188 suggests that where considerable provocation exists, it mitigates only an intentional killing.

Respondent claims otherwise, based on the statute’s use of the word “or” between the “no provocation” and “malignant heart” clauses. But section 188 merely describes two situations “when” malice is implied. while “or” normally has a disjunctive meaning, it should be construed otherwise if the context indicates a contrary legislative intent. (Houge v. Ford (1955) 44 Cal.2d 706, 712.) In context, the word “or” in section 188 does not alone support respondent’s argument that the two implied malice clauses are mutually exclusive. (Cf. De Sylva v. Ballentine (1955) 351 U.S. 570, 573 [100 L.Ed. 1415, 1424, 76 S.Ct. 974] [“the word or, is often used as a careless substitute for the word ‘and’”]; People v. Skinner (1985) 39 Cal.3d 765, 775-776 [vice-versa].)

By contrast, “’implied malice cannot coexist with express malice.’” (People v. Lee (1987) 43 Cal.3d 666, 670.) Analogous to the “no provocation” discussion, if nothing is shown but a “malignant heart” killing (in modern terms, a deliberate act in conscious disregard for life (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103-104)), malice is also presumed. “In such circumstances, ‘ . . . it is not necessary to establish that the defendant intended that his act would result in the death of a human being. [Citation.]” (People v. Swain, supra, 12 Cal.4th at 603.)

Thus, if the evidence shows only that the defendant stabbed the decedent, and a provocation defense is rejected, the verdict should be second degree implied malice murder. If the evidence shows that the defendant intentionally stabbed the decedent, but without the intent to kill him, the verdict should be the same. That is the significance of the two implied malice theories stated in section 188. The issue here involves evidence that the defendant, acting with provocation upon a sudden quarrel, intentionally stabbed the decedent in disregard of the risk to life but without the intent to kill. Under those circumstances, there is nothing in the language of section 188 which would prevent the provocation from mitigating the malice. (Cf. People v. Love, supra, 111 Cal.App.3d at 105-106: Implied malice exists “where a defendant, free from any mental impairment or not acting in the heat of passion or on adequate provocation, makes a voluntary choice to commit a person-endangering act. [Citation.]” (Emphasis added.) Accord, People v. Summers (1983) 147 Cal.App.3d 180, 184.)

2. Imputed Intent To Kill. (See also AOB 53.) When murder is committed with implied malice, “the law attribut[es] to the slayer the intent to kill, although such intent is not made manifest as a fact.” (People v. Doyell, supra, 48 Cal. at 95, emphasis added. on the other hand, “‘where a specific intent to kill is absolutely required,”‘ implied malice is insufficient. (People v. Lee, supra, 43 Cal.3d at 670, emphasis added.) Such an absolute requirement exists in connection with conspiracy to murder, assault with intent to commit murder, solicitation to commit murder and attempted murder. These “inchoate” offenses necessarily require an intent to kill, as the defendant’s target is logically death of the victim. (People v. Swain, supra, 12 Cal.4th at 603-607.) But to the limited extent that the judicial requirement of an intent to kill in voluntary manslaughter is based on construction of section 192, it merely holds that the word “voluntary” implies such an intent. (People v. Cameron, supra, 30 Cal.App.4th at 604, fn. 8; People v. Gorshen, supra51 Cal.2d at 732-733.) No Supreme Court decision has held that section 192’s description of voluntary manslaughter absolutely requires a specific intent to kill so as to exclude implied malice theory. (Ibid.; see fn. 7, supra at p. 25.) Thus, an “attributed” or imputed intent to kill is sufficient. (Respondent fails to address this theory.)

3. Modern View Of Implied Malice As Including Specific Intent. (See also AOB 53-54. As of the time the Supreme Court determined that “voluntary” manslaughter implies a specific intent to kill, case law apparently had recognized only one form of murder as requiring specific intent: express malice. Implied malice was not discussed in terms of specific intent. (See, e.g., People v. Doyell, supra, 48 Cal. at 95-96.) But while the manslaughter cases have only repeated the “intent to kill” formulation over the years, the Supreme Court’s homicide cases have developed the concept of implied malice so that it now includes “the specific intent to do some act dangerous to human life . . . .” (People v. Swain, supra, 12 Cal.4th at 603, emphasis added; see also cases cited at AOB. 53-54. Indeed, that specific intent, coupled with an act causing death, is the very basis for the implication of malice. (Ibid.) Thus, a Court of Appeal decision faced with the novel issue raised here must determine whether “voluntary” encompasses the modern notion of implied malice. (Respondent fails to address this theory.)

B. There Is No Reasonable Basis For Concluding That The Legislature Has Adopted A Construction Of The Homicide Statutes Which Would Preclude A Voluntary Manslaughter Verdict Under These Circumstances

Respondent adds that by amending section 192 several times without expressly addressing case law identifying intent to kill as an element of voluntary manslaughter, the Legislature “must be presumed to have adopted that construction. [Citations.]” (RB 26-27, 29.) But “[t]he doctrine concerning the implied adoption of a judicial construction by reenactment of a statute is not without exceptions. Indeed, as Justice Frankfurter observed, ‘[tlhe persuasion that lies behind that doctrine is merely one factor in the total effort to give fair meaning to language.’ [Citations.]” (I. J. Weinrot & Son., Inc, v. Jackson (1985) 40 Cal.3d 327, 336; see generally, Helvering v. Hallock (1939) 309 U.S. 106, 119-121 [84 L.Ed. 604, 612-613, 60 S.Ct. 444] .) “The weight to be given such a rule depends upon the circumstances of the case.” (American Ins. Co. v. Iaconi (Del. 1952) 89 A.2d 141, 153.)

Beyond citation of the rule, respondent offers no reason and points to no circumstances justifying its application here. Merely listing four amendments to section 192 is insufficient, with no indication of legislative purpose. (Ibid.: “No doubt the existence of legislative reports or debates, prior to re-enactment of a statute, indicating approval of prior judicial construction, might be persuasive; but nothing of that sort appears here.”) If it appears that the purpose of a statutory amendment had nothing to do with the issue which was the subject of the judicial construction, the presumption urged by respondent should not be applied. (I. J. Weinrot & Son., Inc v. Jackson, supra, 40 Cal.3d at 336.) That is the case here.

Respondent cites four post-1872 amendments to section 192. (Stats. 1945, ch. 1006, § 1; Stats. 1983, ch. 937, § 1; Stats. 1984, ch. 742, § 1; Stats. 1986, ch. 1106 § 3.) The statute was amended a fifth time in 1994. (Stats. 1994, ch. 71, § 2.) The 1945 amendment added vehicular manslaughter as a third “kind” of the offense. And the four subsequent amendments addressed only vehicular manslaughter. Thus, the legislative action had nothing to do with the statutory description of voluntary manslaughter, which has remained unchanged since 1872. (People v. Dillon, supra, 34 Cal.3d at 470, fn. 17.) For that matter, as noted above, the definition is essentially the same as that in the 1850 Act, in turn derived from common law. Given the absence of legislative attention to elements of the offense, endorsement of a rule identifying intent to kill as the exclusive mens rea should not be presumed.

Moreover, in enacting these amendments it is unlikely that the Legislature’s attention was directed to problems resulting from the unreasoned construction of voluntary manslaughter as requiring an intent to kill. (Helvering v. Hallock, supra, 309 U.S. at 120 [84 L.Ed. at 612-613].) Until last year’s Shannon decision (46 Cal.App.4th at 1370), there was no case recognizing the problem here. (Cf. People v. Cameron, supra, 30 Cal.App.4th at 604-605, fn. 8.) As this court is not bound by stare decisis to reject the novel issue raised here (see part A, above), it would be anomalous to conclude that legislative silence requires a different result. The “intent to kill” limitation has never been anything but a judicial gloss on the statute, so this court should reject respondent’s suggestion that only the Legislature may reexamine it. (RB 29.)

C. Respondent’s “Public Policy Arguments Are Inapplicable To California Law, And Other Authorities Support Appellant’s Position.

A large portion of respondent’s argument is devoted to “practical and policy reasons” for limiting passion/quarrel manslaughter to killings committed with the specific intent to kill. (RB 30-33.) As appellant will show, respondent relies on authorities and analysis which do not aid in resolving this issue of California law. On the other hand, a closer look at the issue as viewed by commentators and other authorities reveals support for appellants argument.

Respondent’s analysis is premised on a fundamental misunderstanding of the heat of passion and implied malice doctrines in California law. That is presumably why respondent begins by citing out of state authority. (RB 30, citing State v. Grunow (N.J. 1986) 506 A.2d 708, 712-713 [102 N.J. 133]; People v. Wingate (N.Y.App. 1979) 422 N.Y.S.2d 245, 246 [72 A.D.2d 955].) Neither authority should carry persuasive weight here.

1. New Jersey

In a lengthy discussion centered on the 1978 adoption and 1979 amendment of the New Jersey Code of Criminal Justice, Grunow held that “aggravated manslaughter” may not be reduced to “manslaughter” “when committed in the heat of passion resulting from a reasonable provocation[.]” (419 A.2d at 709714.) Respondent posits an equivalence between New Jersey’s aggravated manslaughter and California’s second degree implied malice murder, as well as between New Jersey’s manslaughter and California’s voluntary manslaughter. But the differences are material in connection with the issue here.

Before examining the Code analysis, it is instructive to look at the opinion’s background references to pre-Code homicide law, which apparently was more similar to ours. “Under the common law of New Jersey, ‘extreme indifference’ homicide was second-degree murder.’ [Citation.]” (Id. at 711.) “Under pre-Code law our statutes merely provided the punishment for manslaughter [citation], leaving its definition to the common law.” (Ibid.) “The pre-Code analogue of passion/provocation manslaughter was referred to as ‘voluntary manslaughter,’ which typically involved an intentional killing rather than one committed recklessly. [Citation.]” (Id. at 714, emphasis added.) However “typical” it may have been for a passion/provocation killing to result from the intent to kill, it appears that such an intent was not essential.

In 1971 the drafters of the New Jersey Penal Code proposed four categories of murder: purposeful homicide, knowing homicide, reckless homicide with extreme indifference to life, and felony murder. Absent extreme indifference, reckless homicide was to be manslaughter. (Id. at 711.) As adopted, however, reckless homicide (which “requires personal awareness of the risk and a conscious disregard of it”) was designated only as manslaughter. But it is deemed “aggravated” if committed under “circumstances manifesting extreme indifference to human life.” (Ibid.) Like murder, aggravated manslaughter is a “crime of the first degree- for sentencing purposes; reckless manslaughter is a second degree crime. (Id. at 710.)

A third category of manslaughter, also second degree, is where “[a] homicide which would otherwise be murder under section 2C:11-3 [defining three types of murder] is committed in the heat of passion resulting from a reasonable provocation.” (N.J.S.A. § 2C:11-4, subds. (b)(2), (c), emphasis added; Grunow, supra, 506 A.2d at 710.) The issue for the court was whether aggravated manslaughter is also reduced to manslaughter based on passion/provocation. Obviously, that issue can be resolved by reference to the plain language of the statute, which is expressly limited to killings “which would otherwise be murder.” The defendant’s argument was that “it was merely a legislative oversight that passion/provocation is not explicitly available to mitigate aggravated manslaughter under the new Code . . . .” (Id. at 711.) Following a thorough analysis of legislative design, the court concluded:

In short, in rearranging the highly complex provisions of the Code, both in terms of the substantive definitions of offenses and the justification for acts that would otherwise constitute offenses, the Legislature downgraded “extreme indifference” reckless homicide from murder to aggravated manslaughter, but, at the same time, eliminated the concept of negligent homicide. The Legislature recognized a single concept of reckless homicide that constituted manslaughter, with the gradation of punishment based upon the degree of risk of death. [Citation.) Within this framework, the legislative scheme., as enacted, does not inevitably reflect an oversight with respect to the treatment of passion/provocation. The Legislature could have concluded, on the basis of common experience, that passion/provocation usually causes an intentional reaction and that it is rare for passion/ provocation to lead to recklessness. (506 A.2d at 713-714.)

Grunow does not support respondent’s position, for several reasons. First, whereas the New Jersey manslaughter statute expressly identifies murder (not aggravated manslaughter) as the only offense subject to mitigation by passion/provocation, the California version describes passion/ provocation manslaughter only as “without malice” (i.e., not murder) and “voluntary.” Given the fact that both express and implied malice are based on intentional acts (People v. Swain, supra, 12 Cal.4th at 602-603), there is no basis for concluding that only one is “voluntary.”

The second point follows from the first: Grunow speculated that the Legislature’s inclusion of murder as the sole offense subject to mitigation was based on a valid assumption that “passion/provocation usually causes an intentional reaction and [only rarely] recklessness.” (Emphasis added.) That assumption may be equally valid in California, but here the intentional reaction is an aspect of both express and implied malice: In the former, the intent is to kill the provoking victim; in the latter, the intent is “to do some act dangerous to [the victim’s] life . . . .” (People v. Swain, supra, 12 Cal.4th at 603.)

Third, the New Jersey approach represented a conscious, carefully crafted change from the pre-Code, common law understanding of manslaughter. In California, the statutory definitions of malice and manslaughter are essentially unchanged since 19th Century common law.

Fourth, noted that the Legislature presumably was aware that the practical difference between aggravated manslaughter committed with passion/provocation and the lesser degree offense of passion/provocation manslaughter was just in the sentencing range. “[A]nd presumably the sentencing judge will consider the mitigating factors under the Code, specifically the following two factors: whether ‘[t]he defendant acted under a strong provocation’ and whether ‘[t]here were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense.’ [Citations.]” (506 A. 2d at 713. In California, the analogous difference is not one which can be worked out at sentencing. When passion/provocation mitigates express malice, the crime is voluntary manslaughter with a determinate sentence of 3, 6 or 11 years. (§ 193.) According to respondent, passion/provocation does not mitigate implied malice, the crime is second degree murder, and the penalty is 15 years to life. (§ 190, subd. (a).)

Worse, far from ameliorating the difference, the sentencing rules only exacerbate it. The intentional killing defendant could be aided by California Rules of Court, rule 414(a)(7)10 [Footnote 7] [criterion favoring probation: “Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur”], rule 423(a)(3) [same factor as circumstance in mitigation, supporting lower term], and arguably rule 423(a)(4) [mitigating circumstance: “ . . . the criminal conduct was partially excusable for some . . . reason not amounting to a defense”]. These determinate sentencing rules are not even applicable to the intentional dangerous act defendant (rule 403; People v. Arviso (1988) 201 Cal.App.3d 1055, 1058), and in any event the 15 to lif e term is set by statute; a mitigated term is not an option.

2. New York

Like Grunow respondent’s New York case, People v. Wingate, supra, 422 N.Y.S.2d 245 has only superficial value for respondent’s position. But the one-paragraph memorandum opinion (id. at 246) deserves equally careful scrutiny, as it relied on New York homicide principles fundamentally different from those applicable here. In fact, assuming appellant’s conviction was based on implied malice, the equivalent finding in New York may well have resulted in a verdict of first degree manslaughter–with or without passion/provocation.

New York Penal Law section 125.20 defines four types of first degree manslaughter. The mental elements of the first two types are relevant to the issue here: (1) the “intent to cause serious physical injury” and (2) an intent to kill while “under the influence of “extreme emotional disturbance[.]” The former category would appear to fulfill the test for California’s implied malice second degree murder as currently understood by the courts. A homicide defendant who acted with the purpose of inflicting serious injury has arguably done so in conscious disregard of mortal danger to the victim.

As to heat of passion/sudden quarrel and provocation, they do not exist as such in modern New York statutory law. The “extreme emotional disturbance” which is an element of the first type of first degree manslaughter is a different concept from the former “heat of passion” theory. (People v. Fardan

(N.Y. 1993) 628 N.E.2d 41, 43-44 [82 N.Y.2d 638, 607 N.Y.S.2d 220].) The modern defense mitigates murder to first degree manslaughter, but–by its terms–only when the defendant acts with the intent to kill. Not only is intent to kill an element of extreme emotional disturbance manslaughter, as noted above; the murder statutes include extreme emotional disturbance as a defense only to intentional murder. (N.Y. Pen. Law, § 125.25, subd. (1) [second degree], § 125.27, subds. (1), (2) [first degree].)

There are two other types of murder, both second degree. In one, “[u]nder circumstances evincing a depraved indifference to human life, [the defendant) recklessly engages in conduct which creates a grave risk of death to another person[.]” (N.Y. Pen. Law, § 125.25, subd. (2).) The other is felony murder. (N.Y. Pen. Law, § 125.25, subd. (3).) “The three forms of murder grouped together in section 125.25 are historically distinct crimes.” (People v. Wingate, supra, 422 N.Y.S.2d at 246.) But the definitions of the latter two forms do not include any reference to the emotional disturbance defense.

The issue in Wingate concerned a defendant convicted of depraved/reckless murder under subdivision (2) who argued that the limited application of the extreme emotional disturbance defense violated his right to equal protection. This was the context for the conclusion quoted by respondent: “Since the ‘heat of passion’ killer ordinarily focuses on one person and the depraved and reckless murderer usually acts more indiscriminately, . . . we cannot say that the legislative prerogative to authorize a mitigation-type defense to one crime and not the other is without a rational relationship to the purpose to be served.” (Ibid.)

Wingate’s characterization of the typically indiscriminate nature of depraved/reckless murder appears to be accurate. “Examples of depraved indifference are: firing a gun three times in a packed barroom, continually beating a young child over a five-day period, placing a time bomb in a public place, opening the door of a lion’s cage in a zoo. [Citation.]” (39 McKinney’s Consol. Laws of N.Y., Art. 125–Homicide, etc., Practice Commentaries, p. 491.) While in California these examples would presumably be treated as implied malice, they cannot be deemed “typical.” As noted above, unlike New York, California also treats an intentional violent act against a victim–such as the stabbing here–as implied malice. [Footnote 8]

In short, Wingate and New York homicide law do not aid respondent. Based on the facts and argument at the trial below, a New York prosecutor making the same alternative mens rea argument-stabbing in back showed intent to kill, but if not, at least disregard of danger to life (see fn. 11 below)-would have been seeking a verdict of either second degree intentional killing murder or first degree intentional serious injury manslaughter. Assuming factual applicability of the extreme emotional disturbance defense, the defendant would have offered a second theory of equivalent manslaughter in mitigation of the murder theory. Thus, the prosecution could not have used the implied malice analogy, in this type of case, to obtain a murder verdict.

Fourteen years after Wingate’s rejection of a constitutional challenge, the New York Court of Appeal relied on statutory language and legislative intent in concluding that extreme emotional disturbance defense “can[not] be used to mitigate a charge of depraved mind murder . . . .” (People v. Fardan, supra, 628 N.E.2d at 42.) Once again, the court’s reasoning demonstrates the meaninglessness of respondent’s attempt to analogize New York and California law on this issue. The court noted the “clear statutory language” which limits the defense to only one of three murder theories. (Id. ,at 42-43.) Respondent does not even attempt to point to any equivalent clarity in section 192, despite its supposed

limitation of passion/quarrel mitigation to express malice murder. The court then rejected a historical argument, noting that “heat of passion was never an affirmative defense to depraved mind murder under prior New York statutory schemes.” (Id. at 43.) And in any event, the two defenses are sufficiently different so that “the law applicable to heat of passion need not be, nor should it be, used to give meaning to extreme emotional disturbance.” (Id. at 43-44.)

3. Other Authorities

a. Model Penal Code

Respondent observes that “heat of passion contains both an objective [sufficient provocation] and subjective [under influence of passion] component.” (RB 31.) Appellant has no quarrel with this statement. But respondent’s followup assertion is purely wishful thinking: “The ‘intent to kill’ requirement of voluntary manslaughter helps ensure that the provocation in any given case was both objectively and subjectively sufficient to ‘negate malice’ under a ‘heat of passion’ theory.” (RB 31.) Respondent quotes a passage from a Comment in the Model Penal Code as purportedly “explain[ing]” this point. (RB 31-32, quoting II American Law Institute, Model Penal Code (1980), § 210.3, pp. 54-55.) It is true that this particular discussion refers to intent to kill. But nowhere does it indicate that this is a prerequisite for passion/provocation manslaughter.

The Comment’s focus on the provocation rule itself begins with the paragraph following respondent’s quoted passage. (Id. at 55.) Recognizing that “statements of the rule vary slightly,[]” (fn. omitted), one example is offered, stating the English common law of provocation as of 1883:

Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation. Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control may be provocation, if the offender acts upon it on the sudden and before there has been time for his passion to cool. [Citation.] (Ibid., fn. 31, quoting Draft Code of The Criminal Code Commission of 1878-1879, § 176, and 3 J. Stephen, History of the Criminal Law of England, ch. 26 (1883).)

Obviously, this statement of the rule does not incorporate an intent to kill as a necessary element.

The Comment then identifies and discusses the “two essential requirements” of common law provocation (the objective and subjective elements discussed above), again without reference to an intent to kill. (Id. at 55-65.) And turning to the very beginning of the Comment, [Footnote 9] the “Common Law Background” includes the following statement of the initial English recognition of passion/provocation manslaughter as a discrete theory of that offense: “[H]omicide, even if intentional, was said to be without malice and hence manslaughter if committed in the heat of passion upon adequate provocation.” (Id. at 44, emphasis added.) This is virtually the same description as the one offered by the Supreme Court in 1874 (Doyell and Freel) and misread years later: The very point of passion/provocation was to make the issue of intent to kill meaningless.

Respondent follows the Model Penal Code quotation with one from a California case which directly supports appellant’s argument. Where passion/provocation exists, the law “‘will disregard the actual deliberate and maliciousintent and reduce the crime to manslaughter.'” (RB 32, quoting People v. Van Ronk (1985) 171 Cal.App.3d 818, 823, italics added by respondent, underscoring by appellant.) That is precisely appellant’s point: It is malice, express or implied–not the intent to kill–which is disregarded in such a case.

b. Other Authorities

As far as appellant can discern, the leading commentators who have addressed the issue here support his position. The Model Penal Code, as noted above, does not directly examine this issue. But its discussion of provocation is essentially background for comment with respect to section 210.3, which eliminates passion/provocation manslaughter in favor of extreme emotional disturbance.

Other writers are directly on point. Perkins first addresses the issue indirectly, explaining a theory of malice which would be treated as implied malice in California: “An intent to inflict great bodily injury is sufficient for malice aforethought if there is no justification, excuse, or mitigation. [] . . . . Mitigation most frequently arises under the so-called ‘rule of provocation’–to be considered in connection with manslaughter.” (Perkins & Boyce, Criminal Law (3d ed. 1982), p. 59, emphasis added, fn. omitted.) Perkins later undertakes that consideration, describing an area of some confusion in the law:

Many statements can be found to the effect that voluntary manslaughter requires an intentional killing;[] but the tendency has been to give the phrase a meaning broad enough to cover any killing with a person-endangering-state-of-mind that is neither murder nor innocent homicide. [] This latter usage has the advantage of simplicity because unlawful homicide with a person-endangering-state-of-mind is murder in the absence of mitigation, whereas unlawful homicide without such a state of mind is only manslaughter [i.e., involuntary] in any event. (Id. at 83.)

LaFave and Scott offer a more thorough analysis, in explaining the state of mind aspect of heat-of-passion voluntary manslaughter:

Although the killing of another person–when accompanied by an intent to kill, or by an intent to do serious bodily injury short of death, or when resulting from such unreasonable and highly reckless conduct as to “evince a depraved heart”–often amounts to murder, yet it may under certain circumstances amount only to voluntary manslaughter. [] Most killings which constitute voluntary manslaughter are of the intent-to-kill sort–so much so that voluntary manslaughter is often defined in the cases[] (and, sometimes, by statute[]) as if intent to kill were a required ingredient. But, theoretically at least, they might be of the intent-to-do-serious-bodily-injury, or of the depraved-heart, types. Thus–to take the most common sort of voluntary manslaughter, a killing while in a reasonable “heat of passion”–in most cases the defendant intentionally kills the one who has aroused this passion in him. But if, in the throes of such a passion, he should intend instead. to do his tormentor serious bodily injury short of death, or if he should, without intending to kill him, endanger his life by very reckless (depraved heart) conduct, the resulting death ought equally to be voluntary manslaughter rather than murder or no crime.[] Thus, the great majority of modern statutes, either by a reference to all cases which would otherwise be murder or by similar general language, take this broad view.[] (2 LaFave & Scott, Substantive Criminal Law (1986), § 7.10(a), p. 253, fns. omitted.)

California is of course a state whose manslaughter statute does indeed describe voluntary manslaughter in “general language” reflecting the “broad view” suggested by the authors. (By contrast, the New York statute discussed in the previous section is by its terms limited to intent to kill. (Ibid., fn. 4, citing N.Y. Pen. Law, § 125.15.)) Unfortunately, California case law has thus far failed to fully and properly address the issue.

Other jurisdictions have addressed the issue, and at least where the statutes do not clearly limit application of passion/provocation manslaughter (cf. discussion of New Jersey and New York above), there is ample authority for appellant’s construction of the law. A Louisiana decision was straightforward:

The text writers all agree that an actual intention to kill or to inflict great bodily harm is an essential element in the crime of voluntary manslaughter. [Citations.] The difference between murder and manslaughter is not in the existence or absence of an intent to kill, but in the existence or absence of malice aforethought. (State v. Adams (1946) 28 So.2d 269, 271 [210 La. 782], emphasis added.)

Both demonstrating and apparently resolving the confusion which remains unresolved in this state, the Pennsylvania Supreme Court reviewed its own decisions describing voluntary manslaughter as including “an intentional or voluntary act[,]” “’a specific intent either to kill or seriously injure,’” “‘an intentional killing[,]”‘ and “the specific intent to kill.” (Com. v. Mason (Pa. 1977) 378 A.2d 807, 808, italics omitted.) But even the state conceded that “either an ‘intent to kill’ or an intent to inflict serious bodily injury, would suffice at 809; see also conc. opn. of Roberts, J.: “Although voluntary manslaughter is usually committed with an intent to kill, it is at least theoretically possible that it may be committed with an intent to do serious bodily injury or if the defendant has been extremely reckless. [Citation.]” (Ibid.))

Recently, the Ninth Circuit interpreted a federal statute (18 U.S.C. § 1112(a)) whose definition of voluntary manslaughter is identical to California’s section 192. [Footnote 10] The court noted that the distinction between murder and manslaughter was the presence or absence of malice, that malice was of two kinds (corresponding to California’s express and implied malice), then reached the logical conclusion that the mitigation defense was equally applicable to both types of malice: “If the defendant killed with the mental state required for murder (intent to kill or recklessness with extreme disregard for human life), but the killing occurred in the ‘heat of passion’ caused by adequate provocation, then the defendant is guilty of voluntary manslaughter. [Citations.]” (United States v. Paul, supra, 37 F.3d at 4 9.) In a footnote, the court recognized and eliminated any confusion stemming from the offhand equation of voluntary manslaughter with the concept of “intent”:

In [United States v. Quintero [(9th Cir. 1994) 21 F.3d 885, 890], the court described “intent without malice” as “the defining characteristic of voluntary manslaughter.” (Citation.) Any suggestion in Quintero that intent to kill is a necessary element of voluntary manslaughter is dicta. While most voluntary manslaughter cases involve intent to kill, it is possible that a defendant who killed unintentionally but recklessly with extreme disregard for human life may have acted in the heat of passion with adequate provocation. [Citations.] . . . . (Ibid., fn. 1, emphasis in original.)

Appellant urges this court to follow the reasoned authorities cited above in examining the true meaning of section 192.

4. California Public Policy

Criticizing appellant for the absence of case law directly on point, respondent argues that “the concept of heat of passion necessarily requires that the defendant harbor a specific intent to kill. [Citations.]” (RB 30-31.) But of course there are no California cases which directly support respondent’s argument, either. Respondent cites one case which merely repeats the usual incomplete, unexamined characterization of voluntary manslaughter as an intentional killing. (People v. Hawkins (1995) 10 Cal.4th 920, 959 [affirming but not explaining “the doctrine of earlier case law,”].) The other case does little more than recreate the issue here: If “provocation must be sufficient to excite the passions of a reasonable person to kill” (People v. Ogen, supra, 168 Cal.App.3d at 621), why is it inapplicable to excite the passions of a reasonable person to kill through an intentional act in conscious disregard for the victim’s life?

On the contrary, a long line of Supreme Court cases have explained the very point of the heat of passion doctrine in terms thoroughly inconsistent with its strict limitation to an intent to kill. As early as Doyell, the court spoke of “forbearance for the weakness of human nature . . . . “ (48 Cal. at 95-96.) The forbearance is based on a recognition that under some circumstances (provoked passion/quarrel), a person might understandably react by killing the other party-unlawfully, although not maliciously, thereby lessening culpability. The mitigation doctrine addresses the fact that the defendant killed, not whether he or she had homicidal thoughts at the time. That is, the “human nature” issue arises where a defendant, in the heat of passion provoked by the victim, attacks him and causes death–intended or not. The Supreme Court’s time-honored analysis makes this point clear:

[T]he fundamental of the inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion . . . to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. [Citation.] People v. Logan (1917) 175 Cal. 45, 49, emphasis added; quoted in People v. Valentine, supra, 28 Cal.2d at 139, and People v. Wickersham (1982) 32 Cal.3d 307, 326; see also People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [issue is whether defendant’s “reason was so disturbed by anger or outrage that he acted impulsively.” (Emphasis added.)].)

Respondent identifies a policy purportedly justifying its construction of the law: Essentially, proof of intent to kill is “some evidence” that the provocation was objectively sufficient and resulted in a subjective heat of passion. (RB 30, 32-33.) And the “depraved or indifferent killer” is justifiably more culpable than the intentional killer in this context. (RB 33.) There are problems with both parts of respondent’s theory.

The first point simply begs the question. That is, whatever types of malice may be mitigated under section 192, at least one of them is present while the defendant acts in the heat of passion. That is the very theory of provocation: A killing which otherwise would be murder is mitigated by treating it as without malice. (§§ 188, 192.) Otherwise, the offense presumably would be involuntary manslaughter. (Perkins & Boyce, Criminal Law, supra, p. 83.) But proof of either express or implied malice is a fortiori “some evidence” of the defendant’s passion and the sufficiency of the provocation. In Doe’s case, for example, the stabbing provided evidence which could support a finding of either express or implied malice. (See prosecutor’s argument at fn. 11, supra, at p. 44. ) But neither finding provides more or less evidence than the other with respect to passion or provocation. Section 188 treats the two types of malice as equivalent for purposes of murder.

More fundamentally, respondent errs by characterizing the implied malice killer as one who is “simply . . . indifferent to the outcome” and therefore not sufficiently provoked into passion. (RB 33.) The law requires a deliberate act, with a conscious disregard for the danger to human life. Choosing to attack a victim and choosing to risk killing her are hardly acts of “indifference.”

Respondent’s comparative culpability theory, purportedly an answer to Shannon’s concern with misinterpretation of section 192, suffers from the same reliance on the “indifferent” killer as opposed to the intentional one. Additionally, the argument is stated so as to defy logic: “Although [the implied malice killer] harbors no specific intent to kill, his indifference is more culpable than one who intentionally kills in a fit of ‘human weakness.’” (RB 33.) Given the issue here, respondent’s comparison is materially incomplete. The proper statement would attempt to contrast the culpabilities of (a) the defendant who, in a fit of weakness, deliberately kills in conscious disregard of life, and (b) one who, in a fit of weakness, kills intentionally. Because respondent cannot show that defendant (a) is more culpable than defendant (b), its point is not made.

In a last policy argument, respondent suggests that reducing implied malice murder through passion/provocation would “compromise” a limitation on this mitigation defense: “There is no such defense unless [the] defendant intended to kill the person who provoked the killing. [Citation.]” (RB

33.) Appellant fails to grasp the significance of this argument, and respondent provides no explanation. It may derive from respondent’s inappropriate analogy to New York’s .typically indiscriminate depraved/reckless murder, which is not mitigated by extreme emotional disturbance. But the California law of implied malice typically operates as it did here, providing the prosecutor with an alternate murder theory closely related to express malice: The defendant deliberately attacked and killed the victim, circumstantially proving either an intent to kill or a conscious disregard of the risk of death. Under those circumstances, any provocation-by-victim defense relevant to the first theory will be equally relevant to the second.

If, on the other hand, the prosecution were to charge implied malice on the theory that the defendant acted indiscriminately (by, for example, “firing a gun three times in a packed barroom, continually beating a young child over a five-day period, placing a time bomb in a public place, opening the door of a lion’s cage in a zoo,” as noted in the comments to McKinney’s New York Code, supra, at p. 43), then a provocation-by-victim defense would not appear to be relevant.

D. The Error Requires Reversal

Respondent adds that if instructional error occurred, it was harmless. (RB 34.) Respondent reiterates its argument that the evidence clearly established intent to kill, and appellant reiterates his reply.

B-720b FOOTNOTES [Footnote 4-10]:

Footnote 4: As noted in appellant’s opening brief, traced the intent to kill – doctrine to an “offhand misreading” of People v. Freel (1874) 48 Cal. 436, 437. (See AOB 50-51, including quotation and analysis of Freel. Cameron cited Drown v. New Amsterdam Casualty Co. (1917) 175 Cal. 21, 24, which set a pattern by simply asserting a never-before stated rule with no explanation other than citation to Freel: “In order to constitute voluntary manslaughter there must be an intent to kill, though it is not that deliberate and malicious intent which is an essential element in the crime of murder. (People v. Freel, 48 Cal. 436, 437.)”

As Cameron noted, People v. Gorshen (1959) 51 Cal.2d 716, 732-733 actually stated the intent element by reference to section 192, but with no analysis that would aid in resolving the issue presented here: “Specific intent to kill is not a ‘necessary [statutorily prescribed] element, of second degree murder but is a necessary element of the kind of first degree murder which we are here considering (a ‘willful, deliberate, and premeditated killing’; Pen. Cod, S 189) and is implicit in the statutory description of the kind of manslaughter which we are here discussing (‘the unlawful killing of a human being . . . Voluntary’; Pen. Code, S 192).” (Brackets in original.) Even if this reading was correct, the point was to find in section 192 an indication that a voluntary manslaughter includes a specific intent–not that it excludes the mens rea of implied malice. On that point, is mere dictum.

Footnote 5: Valentine was concerned, not with the definition of manslaughter (Act Concerning Crimes and Punishments (1850), § 22; Pen. Code (1872), § 192), but with the earlier statute’s express limitation on what could be adequate provocation. That limitation was expressed in the 1872 Code Commissioners, notes, but it was not included in section 192. (28 Cal.2d at 138.)

Footnote 6: Sections 19 through 22 of the 1850 Act are materially equivalent to Penal Code sections 187, 188 and 192 with respect to the issue and analysis raised here. Appellant quotes the earlier statutes for comparison:

“Section 19. Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned.

“Sec. 20. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof.

“Sec. 21. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart. The punishment of any person convicted of the crime of murder shall be death.

“Sec. 22. Manslaughter is the unlawful killing of a human being without malice expressed or implied, and without any mixture of deliberation. It must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible; or involuntary in the commission of an unlawful act, or a lawful act without due caution or circumspection.”

Section 25 provided a more detailed definition of involuntary manslaughter and effectively codified the common law felony-murder rule. (People v. Dillon, supra, 34 Cal.3d at 465.)

Footnote 7: Further references to rules are to the California Rules of Court.

Footnote 8: The prosecutor’s closing argument illustrates appellant’s point. He first argued express malice, based on circumstantial evidence that someone stabbed Mr. C in the back twice.” (RT 364.) Moments later, he made precisely the same argument in suggesting an alternative implied malice theory: “And that certainly is the kind of conclusion you would make from someone who plunges a knife into someone’s back: They may not have been thinking, ‘I want the person to die.’ But they did it in conscious disregard of the inordinate, extreme danger from plunging a knife in someone’s back twice.” (RT 365.) For that matter, see also respondent’s arguments, at issue I, that the same evidence showed both express and implied malice. (RB 14, 16.)

Footnote 9: The entire comment is related to section 210.3 of the Model Penal Code, defining manslaughter.

Footnote 10: “Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

“Voluntary–Upon a sudden quarrel or heat of passion.

”. . . .”