F 8.43

F 8.43a

Heat Of Passion: No Presumption Of Murder

(PC 192(a))

*Modify lines 1 & 2 and the last two lines of ¶ 1 of CJ 8.43 to provide as follows [added language is capitalized; deleted language is between <<>>]:

To <<reduce a killing>> NEGATE MALICE upon a sudden quarrel or heat of passion <<from murder to manslaughter>> the killing must have occurred while the slayer was acting under the direct and immediate influence of such quarrel or heat of passion. Where the influence of the sudden quarrel or heat of passion has ceased to obscure the mind of the accused and sufficient time has elapsed for angry passion to end and for reason to control his conduct, it will no longer <<reduce an intentional killing to manslaughter>> NEGATE MALICE. ….

Points and Authorities

The current language of the CJ heat of passion instructions are phrased in terms of reducing the homicide from murder to manslaughter. Use of this language is a problem for two reasons.

First, the jury is effectively advised that it should presume the offense was murder unless it is convinced to “reduce” it. This impermissibly slants the issue towards the prosecution in much the same way as the defect noted in CJ 10.46.2 in People v. Owens (94) 27 CA4th 1155, 1158-59 [33 CR2d 354]. In Owens, the court agreed that the phrasing, “The people have introduced evidence tending to prove …” in CJ 10.46.2 conveyed to the jury the impression that the court believed that evidence. In effect, the defect noted by the Owens court created an inference that a certain aspect of the case had been proved to the satisfaction of the court, and that kind of impact on the prosecution’s burden to prove every essential element is much the same as the impact of an instruction which infers the jury should presume the case is murder unless convinced otherwise. The fact that this concept is an accurate statement of the law is no answer to the problem. Instructions which accurately state the law but pose the risk of confusing or misleading the jury are improper. (See e.g., People v. Lasero (88) 44 C3d 1006, 1021 [245 CR 185]; Delos v. Farmers Insurance (79) 93 CA3d 642, 656 [155 CR 843] [judicial opinions are not written to be jury instructions and are notoriously unreliable as such].) These instructional defects create an impermissible inference in favor of the prosecution in violation of settled constitutional principles.

Second, the CJ language has the likely effect of setting an order of deliberations for the jury. By suggesting that they should presume the killing was murder unless convinced otherwise, the logical starting point for the deliberations would be on the question of whether the killing was murder. This is precisely the kind of extrinsic ordering of deliberations which has been condemned by the California Supreme Court. (See People v. Kurtzman (88) 46 C3d 322, 329-31 [250 CR 244].) For this reason as well the CJ instruction should be modified as set forth above.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-636.]