Brief Bank # B-716 (Re: F 8.40 n11 Can Provocation/Heat Of Passion Reduce Unintentional Implied Malice Murder To Manslaughter?].)
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NOTE: The following document consists of two separate opening briefs, B-716a and B-716b
NOTE: The text of the footnotes appear at the end of the document.
BRIEF # B-716a
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF No. AOG9386
(San Mateo County Superior
Plaintiff/Respondent, Court No. CR33640)
APPELLANT’S OPENING BRIEF
DENNIS P. RIORDAN, ESQ. State Bar No. 69320
DYLAN L. SCHAFFER, ESQ. State Bar No. 153612
RIORDAN & ROSENTHAL
523 Octavia Street
San Francisco, California 94102
Telephone: (415) 431-3472
Attorneys for Defendant/Appellant
I. THE JURY INSTRUCTIONS WERE DEFICIENT BECAUSE THEY FAILED TO INFORM THE JURY THAT ALTHOUGH HE LACKED INTENT TO KILL, DOE COULD BE FOUND TO HAVE COMMITTED A VOLUNTARY MANSLAUGHTER
This case presents an important and surprising issue: important because it concerns a fundamental difference between the crimes of murder and voluntary manslaughter; surprising because the claim raised herein apparently never has been addressed in a published opinion, despite the fact that it is posed by the present form instruction on voluntary manslaughter found in CALJIC.
The issue is easily framed by a hypothetical. Assume a provocation or heat of passion context: a father learns his daughter has been raped by a neighbor. The father storms over to the neighbor’s house, barges in, places a gun to the rapist’s head, and pulls the trigger, blowing the offender’s brains out. There can be no doubt that under California law, a jury is entitled to return a verdict of voluntary manslaughter rather than murder, despite the father’s demonstrated intent to kill his neighbor, if they find that he acted while in the heat of passion.
Consider the same facts with this difference: the father does not arm himself, but rather intends to give the neighbor a beating with his fists. He drives to the neighbor’s house, only to see him fleeing in his automobile. The father engages in a high speed chase, then deliberately plows his car into the culprit’s car at a high rate of speed in an effort to stop the rapist, killing him. The jury finds that the father acted while under the heat of passion, as in the first hypothetical, but did not intend to kill the fleeing neighbor, rather performing a dangerous act with knowledge of, and disregard for, the danger to human life. Does that heat of passion constitute a defense to a murder charge, as it does in the above-described intentional killing? Stated differently, does provocation or heat of passion provide a defense to any charge of malice murder, or only to an accusation of express malice — i.e., an intentional killing -thereby depriving a defendant who killed unintentionally the opportunity to reduce an allegation of implied malice murder to voluntary manslaughter by reliance on a defense of provocation?
Certainly, limiting the defense of provocation to express malice situations makes no sense normatively. It is impossible to argue that an intentional killing, one of express malice, is less worthy of opprobrium than an unintentional killing committed by consciously disregarding the threat to life of a dangerous act, which meets the definition of implied malice. No doubt for that reason, as is demonstrated below, the statutory definitions of the crimes of murder and voluntary manslaughter make clear that provocation is a defense to the element of malice aforethought necessary to the commission of murder, making no distinction between the express and implied forms of such malice.
Nonetheless, the form instruction on voluntary manslaughter states that a finding of intent to kill is necessary to a voluntary manslaughter conviction. CALJIC 8.40. Under that instruction, given in this case, a jury which finds a defendant killed unintentionally cannot consider a defense of heat of passion to a charge of implied malice murder, although it could use that defense to return a verdict of voluntary manslaughter if the homicide were intentional. Because it is plainly inconsistent with the statutes it purports to summarize, CALJIC 8.40 is facially defective, and the error it contains deprived appellant of a defense provided by California law. That defect requires reversal.
B. Instructions Given.
The jury in this case received the following standard instructions on the definitions of murder, malice, and manslaughter:
Every person who unlawfully kills a human being with malice aforethought, is guilty of the crime of murder in violation of section 187 of the penal code.
In order to prove such crime, each of the following elements must be proved:
1. A human being was killed.
2. The killing was unlawful, and
3. The killing was done with malice aforethought. Malice . . . may be either express or implied.
Malice is express when there is manifested an intention unlawfully to kill a human being.
Malice is implied when:
1. The killing resulted from an intentional act.
2. The natural consequences of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.
(RT 1320-1321; CALJIC 8.10, 8.11).
Murder of the second degree is also the unlawful killing of a human being when:
1. The killing resulted from an intentional act.
2. The natural consequences of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.
(RT 1323; CALJIC 8.31).
The crime of manslaughter . . . is the unlawful killing of a human being without malice aforethought . . . .
Every person who unlawfully kills another human being without malice aforethought, but with an intent to kill, is guilty of voluntary manslaughter.
There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion.
In order to prove such crime, each of the following elements must be proved:
1. A human being was killed.
2. The killing was unlawful. And
3. The killing was done with the intent to kill.
(RT 1324; CALJIC 8.37, 8.40). [Footnote 1] The prosecutor reinforced these definitions in his closing argument. (RT 1227-1238; RT 1253: “Voluntary manslaughter requires not only intent to kill, you have to find intent to kill, unlike second degree murder.”).
Among the jury’s options in this case, therefore, were the following: it could have found appellant guilty (a) of second degree murder by finding he intended (without premeditation or deliberation) to kill Ms. S; (b) of second degree murder by finding he performed an act, the natural consequences of which are dangerous to human life, and that he acted in conscious disregard of such a danger; or (c) of voluntary manslaughter by finding he intended to kill Ms. S, but that the killing occurred upon a sudden quarrel or heat of passion.
Under the instructions given this jury, however, it was precluded from finding Doe guilty of voluntary manslaughter, or even considering a defense of heat of passion, unless and until it found he had intended to kill his victim. For that reason, if it found Doe had never intended to kill Ms. S, the jury was prohibited by the trial court’s instructions from reducing the verdict, upon finding the shooting was the result of a sudden quarrel or heat of passion, from second degree murder to manslaughter. [Footnote 2]
C. The Jury Improperly Was Precluded From Finding Doe Guilty Of Voluntary Manslaughter If It Determined He Did Not Intend To Kill Ms. S.
1. The Relevant Statutes.
In California, there are no non-statutory offenses, so it is the Penal Code itself that is the dispositive source of both the elements of crimes and the defenses to them. Penal Code § 6 (“No act or omission is criminal or punishable, except as prescribed or authorized by this code . . . . “); People v. Harris (1961) 191 Cal.App. 754. In this state, “[mlurder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Penal Code § 187(a). The definition of malice, as found in the first paragraph of Penal Code § 188, has remained unchanged since its enactment in 1872:
Such malice may be express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
Section 188 could not be clearer. Provocation nullifies implied malice. The same principle is reflected in Penal Code § 192, which defines manslaughter as follows: “Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary — upon a sudden quarrel or heat of passion. . . .” Section 192 thus defines voluntary manslaughter not as an intentional killing accompanied by sudden quarrel or heat of passion, but rather as an unlawful killing accompanied by these conditions, thereby making provocation a defense to an allegation of implied malice murder as well as to one of express malice murder. Thus California provides a statutory “sudden quarrel or heat of passion,” defense to any charge of malice murder, and there is no statutory basis for the limitation presently found in CALJIC 8.40. As will be seen, none exists in the applicable caselaw either.
2. The Relevant Caselaw.
In People v. Doyell (1874) 48 Cal. 85, soon after the passage of the above cited statutes in 1872, the California Supreme Court provided an early discussion of malice murder in California, a discussion still viewed as authoritative (see Witkin, California Criminal Law (2d ed. 1988) § 503 (discussing the nature of implied malice murder and quoting Doyell at length):
Murder is the unlawful killing of a human being with malice aforethought.
* * *
The malice aforethought, which is an ingredient of murder is express or implied.
* * *
[A] large number of homicides have been adjudged murder, where the specific intent to take life does not appear or does not exist. Thus, where the killing is involuntary, but happens in the commission of an unlawful act, which, in its consequences, naturally tends to destroy life, it is murder; so if the intent to kill is not made aipparent, but the killing is unlawful, and not done in the heat of passion, or the specific intent to take life not appearing, all the circumstances show an abandoned and malignant heart. In these and like cases, the malice aforethought is implied, the law attributing to the slayer the intent to kill, although such intent is not made manifest as a fact.
48 Cal. at 94-95 (emphasis added).
The Doyell Court’s analysis is this: when one who kills does not expressly exhibit the specific intent to kill, but commits an act “which, in its consequences, naturally tends to destroy life,” the law attributes such an intent to him. Implied malice is simply an imputed form of intent to kill. That being so, there can be no logical difference between the defenses available to one form of malice as opposed to the other, and the Doyell Court makes clear that there are not: a defendant is guilty of implied-malice murder only when the killing is not committed in the heat of passion. Consistent with California’s statutory scheme, the above language of Doyell thus expressly acknowledged that both express and implied malice murder can be negated upon a finding of sudden quarrel or heat of passion.
Likewise, in People v. Lewis (1960) 186 Cal.App. 585, the defendant claimed he struck the victim after the victim threatened him; the victim died much later of his wounds. Under the defendant’s version of the facts, there was no basis for finding he intended to kill the victim. Yet the Court of Appeal found that the trial court erred in failing to instruct on manslaughter based on the defendant’s story:
[T]he trial court committed prejudicial error by failing to instruct on manslaughter. Taking the defendant’s statements as true the jury could have found that the defendant acted under the influence of fear which was not reasonably justified.
186 Cal.App.2d at 598; accord, People v. Flannel (1979) 25 Cal.3d 668, 675-76. Thus, Lewis approves the giving of manslaughter instructions based on evidence that supported a conclusion that the defendant killed unintentionally while acting under provocation.
While much has been written regarding the history both of implied malice murder and voluntary manslaughter, [Footnote 3] and while there are many cases that contain the statement that voluntary manslaughter involves an intentional killing, [Footnote 4] there appears to be no holding in California that an unintentional killing which otherwise meets the definition of implied malice cannot be reduced to a voluntary manslaughter by the existence of provocation. Indeed, no such ruling would be permitted under the statutory language defining malice and voluntary manslaughter.
One who commits a very dangerous, life-threatening act with conscious disregard for its consequences that results in death has committed a crime more grave than involuntary manslaughter because, as the jury was instructed in this case, a homicide qualifies as involuntary manslaughter only if the perpetrator acts “without realizing the risk involved.” (CT 1329; CALJIC 8.50). Yet the crime so committed cannot be murder if the defendant acted under the influence of a sudden quarrel or heat of passion, whether or not the resulting homicide was intentional. Penal Code §§ 188, 192(a); Doyell, supra.
The CALJIC instructions discussed above simply fail to reflect this critical statutory rule. CALJIC instructions do not have the force of law, and must be rejected when they fail to adequately define the statutory elements of, or defenses to, a crime. See People v. Beeman (1984) 35 Cal.3d 547, 560 (“CALJIC No. 3.01 inadequately defines aiding and abetting because it fails to insure that an aider and abettor will be found to have the required mental state with regard to his or her own act.”)
As a result of a clear error in the instructions provided the jury, appellant unfairly was deprived of the possibility of a voluntary manslaughter verdict. As will appear, that error requires a retrial.
D. The Instructional Deficiency Requires A New Trial Or A Reduction Of The Offense To Voluntary Manslaughter.
Faced with the serious instructional errors described above, the attorney general will make two arguments against reversal, neither of which can overcome the error.
1. This Court Must Reach The Issue.
The state will suggest that because appellant’s trial lawyer did not object to the form of the instructions he waived any challenge to the instructions here. That argument is unavailing.
Under California Penal Code § 1259, this Court is to review the correctness of “any instruction given, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” The trial judge in this case correctly determined that instructions on heat of passion or sudden quarrel had to be given; that being so, the instructions given had to be correct, and they were not. [Footnote 5]
If ever an instructional error had an effect on the substantial rights of the defendant, it did so in this case. In a case in which the issue of heat of passion or sudden quarrel is raised, it is the state’s burden to disprove the existence of that condition beyond a reasonable doubt. Mullaney v. Wilbur (1975) 421 U.S. 684; CALJIC 8.50. The jury here in effect was told that the state did not have to meet its burden on that element in the case of a non-intentional killing. Because that statement was wrong, the prosecution was relieved of its burden of proof beyond a reasonable doubt on an element of its theory. [Footnote 6]
The jury improperly was precluded from reaching a verdict which, in view of the evidence, would have been entirely reasonable. In this case, of course, such a verdict would have meant the difference between an offense for which Doe could have received probation, and the life sentence he received. It is hard to imagine an instructional error which would affect a defendant’s substantial rights more profoundly, thus requiring review under § 1259.
2. The Error Was Prejudicial.
The state also will contend that a properly instructed jury never would have arrived at a voluntary manslaughter verdict because the evidence of heat of passion or sudden quarrel was insufficient to support such a result; for that reason the instructional error was harmless. That argument must be rejected.
First, as demonstrated above, the error deprived appellant of his constitutional right to have the jury determine the truth of every factual allegation against him. Such an instructional error cannot be harmless. People v. Kobrin (Cal. Supreme Court) 95 C.D.O.S. 8542, 8545; see also United States v. Gaudin (9th Cir. 1994) 28 F.3d 943, 951 and Harmon v. Marshall (9th Cir. 1995) 57 F.3d 763, 767.
Second, in this case the prosecutor requested CALJIC 8.37 and 8.40. (CT 35). Its agent below having requested and argued the instruction, the state cannot now claim that there was inadequate evidence to sustain a voluntary manslaughter verdict. See United States v. Solano (9th Cir. 1993) 10 F.3d 682, 683 (government cannot argue on appeal that evidence was insufficient to justify instruction on a defense where it did not object to instruction at trial).
Third, both sides recognized there was much in this record to support the inference that the shooting was the product of a struggle for the gun during a verbal altercation. The evidence in this case, as the prosecutor made clear over and over again in argument and in presentation of the case, supported the view that Doe and Ms. S both had been using large quantities of drugs and alcohol, that they had been fighting, verbally and perhaps physically, and that in the course of the altercation the gun discharged. (See e.g., RT 193: prosecutor describing possible struggle in opening argument; RT 194: describing statement by Doe to Fred Greer that he and Ms. S had been involved in a “scuffle.”; RT 1249: prosecutor argues that neighbors had heard the two fighting; RT 1250: prosecutor describes altercation as a “major, major battle”; RT 1250: animal hair on Doe’s clothes and scratches on his person indicate the pair were fighting). Indeed, one of the significant legal battles that occurred below was over the prosecution’s right introduce the rebuttal testimony of Mr. W, who claimed Doe and Ms. S had been having problems in their relationship. Having fought to introduce evidence of conflict between appellant and Ms. S, the state cannot now argue that there was no such evidence in the record. An argument that the instructional error was harmless simply ignores an abundance of evidence upon which the jury could have based an inference that the shooting was the product of a sudden quarrel or heat of passion.
Fourth, the prosecutor not only requested the instructions on voluntary manslaughter; he restated the erroneous portion of them in his closing emphasizing that unless Doe intended to kill Ms. S, the jury could not arrive at a voluntary manslaughter verdict. (RT 12S3: “Voluntary manslaughter requires not only intent to kill, you have to find intent to kill, unlike second degree murder.”)
Finally, there is evidence in the record that the jury in this case actually did consider a manslaughter verdict, but felt compelled to reject it and convict Doe of second degree murder precisely due to the instructional error asserted above: the jurors did not believe Doe intended to kill Ms. S and the instructions precluded a voluntary manslaughter verdict in that circumstance. See n.5, supra.
In view of Juror H’s statements, it simply is impossible to argue that the instructional error had no impact on the outcome of the case. Had it been entitled to do so by proper instructions, the jury in this case would have convicted Doe of voluntary manslaughter, not of second degree murder. A new trial, or a reduction of the conviction to the lesser charge, is in order.
B-716a FOOTNOTES [Footnotes 1-6]:
Footnote 1: The trial court went on to define “heat of passion” and “sudden quarrel.,.” See RT 1324-1326; CALJIC 8.42.
Footnote 2: The jury accepted the rule expressed in the instructions, and reinforced by the prosecutor, that a finding of intent to kill is a necessary element of a voluntary manslaughter conviction. Juror H. wrote the trial court after the verdict was entered and expressed her frustration regarding the outcome of the case:
I think your jury would have gone with involuntary manslaughter, if it had not been the wording of your instructions (malice of [sic] forethought and intent) and as 1 of the 12 jurors we did vote at 100% there was not intent.
We were very confused and felt because of those words we could not go with manslaughter, so we went reluctantly with the 2nd degree as your instructions said we had to follow them even if we didn’t like them.
(CT 181) (emphasis added).
Footnote 3: See People v. Whitfield (1994) 7 Cal.4th 437, 450; People v. Nieto-Benitez (1992) 4 Cal.4th 91, 103-104; People v. Cleaves (1991) 229 Cal.App.3d 367, 381; People v. Dellinger (1989) 49 Cal.3d 1212; People v. Orr (1994) 22 Cal.App.4th 780, 784; People v. Saille (1991) 54 Cal.3d 1103, 1114.
Footnote 4: See, e.g., People v, Saille (1991) 54 Cal.3d 1103, 1114 (“Section 192, however, negates malice when the intentional killing results from a sudden quarrel or heat of passion induced by adequate provocation.”).
Footnote 5: Alternatively, a trial court has a sua sponte duty to instruct on all elements of the offenses which the jury must consider, and its failure to do so constitutes reversible error. People v. Mouton (1993) 15 Cal.App.4th 1313, 1319.
Footnote 6: Blackstone described “trial by jury” as requiring that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of (the defendants’] equals and neighbors . . . “ 4 W Blackstone, Commentaries On the Laws Of England 343 (1769) United States v. Gaudin, 95 C.D.O.S. 4634, 4635 (June 20,1995) (emphasis in Justice Scalia’s opinion).
BRIEF # B-716b
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
v. No. 000000
JOHN DOE and
Defendants and Appellants.
Appeal from the Judgment of the Yolo County Superior Court
Honorable Stephen L. Mock, Judge
APPELLANT DOE’S OPENING BRIEF
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
Attorney for Appellant
THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT WHERE A HOMICIDE IS COMMITTED WITH THE MENS REA REQUIRED FOR IMPLIED MALICE BUT IN THE HEAT OF PASSION, A FINDING OF MURDER MUST BE MITIGATED TO THE LESSER OFFENSE OF VOLUNTARY MANSLAUGHTER.
As noted in the previous section, the trial court denied Doe’s request for instructions on the lesser included offense of voluntary manslaughter in the heat of passion. The request was supported by substantial evidence, as argued above (section V-C-4). (People v. Barton, supra, 12 Cal.4th at 202.) The court gave a single reason for its ruling: “ . . . I don’t construe the evidence as indicating that at any time your client intended to kill Mr. W. . . . . [¶] So I cannot see how the jury could find voluntary manslaughter . . . .” (RT 1461-1462.) Indeed, the standard instructions define voluntary manslaughter as requiring the “intent to kill” as an element of the offense. (CALJIC No. 8.40.) Doe did not ask for this instruction, however (RT 1459); his requested instructions included the following:
The crime of manslaughter is the unlawful killing of a human being without malice aforethought. It is not divided into degrees but is of two kinds, namely, voluntary manslaughter and involuntary manslaughter. (CT 620, emphasis added; CALJIC No. 8.37.)
To reduce an intentional felonious homicide from the offense of murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such character and degree as naturally would excite and arouse such passion, and the assailant must act under the influence of that sudden quarrel or heat of passion.
The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. Legally adequate provocation may occur in a short, or over a considerable, period of time.
The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.
If there was provocation, [whether of short or long duration,] but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed such provocation and had all the elements of murder, as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to manslaughter. (CT 621, emphasis added; CALJIC No. 8.42.)
[CALJIC No. 8.44 further described .the heat of passion. (CT 622.)]
The distinction between murder and manslaughter is that murder requires malice while manslaughter does not.
When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel such as amounts to adequate provocation the offense is manslaughter. In such a case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent.
To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel.
(CT 623, emphasis added; CALJIC No. 8.50.)
If you are satisfied beyond a reasonable doubt that the killing was unlawful, but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the benefit of such doubt and find it to be manslaughter rather than murder. (CT 625; CALJIC No-. 8.72.)
If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for such bearing as it may have on whether the defendant killed with or without deliberation and premeditation. (CT 626; CALJIC No. 8.73.) [Footnote 7]
[CALJIC No. 8.74 required unanimity as to the offense for a guilty verdict.]
Based on the above instructions, the jury reasonably could have applied heat of passion to negate malice and mitigate the homicide to voluntary manslaughter, without finding a specific intent to kill. As appellant will explain, the instructions were generally faithful to the statutory scheme which focuses on whether malice is mitigated, not whether death was intended. In context, the sole reference to “an intentional felonious homicide” which may be reduced from murder to manslaughter (CT 621; CALJIC No. 8.42) does not state an element of the latter offense. The jury learned that implied malice was necessary for murder, and they reasonably could understand the quoted phrase to refer to the required mens rea. (CF. People v. Cameron, supra, 30 Cal.App.4th at 599-600 [implied malice is a specific intent, requiring subjective knowledge of danger and conscious disregard. for life].) Additionally, they would have learned that heat of passion negates malice “even if an intent to kill exists” and that the prosecution must prove “the elements of murder” and the absence of heat of passion. (CT 623, emphasis added; CALJIC No. 8.50.)
But because of the court’s ruling, the instructions prevented reduction of the murder verdict to manslaughter even if the jury might have believed the killing resulted from Doe’s acts committed in the heat of passion. This is wrong.
B. Nature Of The Error
1. The Statutory Scheme: Murder and Manslaughter
In California, there are no non-statutory offenses, so the Penal Code is the dispositive source of both the elements of and defenses to crimes. (§ 6: “No act or omission . . . is criminal or punishable, except as prescribed or authorized by this Code . . . . : See Keeler v. Superior Court (1970) 2 Cal.3d 619, 631-632.) Section 187, subdivision (a) provides: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” The subsequent statute defines malice, and its first paragraph has remained unchanged since its enactment in 1872:
Such malice may be express or implied. it is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (§ 188, emphasis added.)
The Legislature could not have been clearer. Legally adequate provocation nullifies implied malice. The same principle is reflected in section 192’s manslaughter definition, which addresses only the mitigation theory and ignores the express/implied malice distinction: “Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [¶] (a) Voluntary-upon a sudden quarrel or heat of passion. . . . .” (Emphasis added.) The statute thus defines voluntary manslaughter not as an intentional killing accompanied by sudden quarrel or heat of passion, but rather as an “unlawful,, killing under those conditions. Moreover, its “without malice” element is clearly set up as a counterpart to section 187’s definition of murder as an “unlawful killing . . . with malice aforethought.” (Emphasis added.) “The crime of manslaughter complements the crime of murder. Thus, if a killing is unlawful it must constitute either a murder or manslaughter, the defining boundary being malice; if the homicide is unlawful and malice is lacking the offense is manslaughter.” (People v. Cameron, supra, 30 Cal.App.4th at 604.)
It necessarily follows that provocation is a defense to murder–more specifically, to the malice element of murder. In that context, the distinction between express malice and implied malice–equally culpable mental states (People v. Brown (1995) 35 Cal.App.4th 708, 715)–is meaningless. Indeed, “[rlather than defining different mens reas, . . .express and implied malice are really a shorthand way of denoting the requisite mental state for murder known as malice aforethought. [Citations. ]” [Ibid.) Thus, there is nothing in the relevant statutory provisions which would justify a determination that only one of the two malice forms is subject to the mitigating element of voluntary manslaughter.
In People v. Doyell (1874) 48 Cal. 85, soon after the enactment of the above-quoted homicide statutes, the Supreme Court provided an early discussion of malice murder in California, a discussion still viewed as authoritative (see 1 Witkin, Cal. Crim. Law (2d ed. 1988) § 503, p. 569 [explaining the nature of implied malice murder and quoting Doyell as “illustrative”]I ):
[A] large number of homicides have been adjudged murder, where the specific intent to take life does not appear or does not exist. Thus, where the killing is involuntary, but happens in the commission of an unlawful act, which, in its consequences, naturally tends to destroy life, it is murder; so if the intent to kill is not made apparent, but the killing is unlawful, and not done in the heat of passion, or the specific intent to take life not appearing, all the circumstances show an abandoned and malignant heart. In these and like cases, the malice aforethought is implied, the law attributing to the slayer the intent to kill, although such intent is not made manifest as a fact.
On the other hand, 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.
In the former cases the slayer is presumed to be actuated by an intent which may not exist; in the latter (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.
Thus the presence or absence of “malice aforethought” has come to be determined by artificial or technical reasoning, and not always by a simple reference to the actual intent to kill, as made manifest by the circumstances proved in each case. (48 Cal. at 95-96, emphasis added.)
Doyell’s analysis is straightforward: When one who kills does not expressly exhibit the specific intent to kill, but commits an act “which, in its consequences, naturally tends to destroy life,” the law attributes to the defendant that very intent. Implied malice is simply an imputed legal form of the intent to kill, and it is defined as excluding heat of passion. (§§ 188, 192; see People v. Cole (1956) 7 Cal.2d 99, 106 [where record shows no provocation or justification for defendant’s killing, malice is implied].) It follows that there is no functional difference between the defenses available to one form of malice as opposed to the other. Doyell makes this clear: Provocation and sudden passion negate malice; that is, the law “disregards the actual intent to kill, . . . [¶] . . . although such intent may in fact exist.” (Emphasis added.) Thus, a defendant is not guilty of implied-malice murder when the killing is committed in the heat of passion.
Likewise, in People v. Lewis (1960) 186 Cal.App.2d 585, the defendant claimed that he struck the victim who had threatened him; the victim died much later of his wounds. Under the defendant’s version of the facts as told to the police, he did not act with the intent to kill. (Id. at 593-595.) Yet the Court of Appeal held that the defendant’s story should have triggered a manslaughter instruction: “[T]he trial court committed prejudicial error by failing to instruct on manslaughter. Taking the defendant’s statements as true the jury could have found that the defendant acted under the influence of fear which was not reasonably justified.” (Id. at 598; accord, People v. Flannel, supra, 25 Cal.3d at 675-676. ) The fact that the defendant “acted under the influence of fear,” and not the details of his specific intent, was the focus of the court’s concern. Thus, Lewis approved manslaughter instructions based on evidence that the defendant killed unintentionally while acting in the heat of passion.
Similarly, 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.
Unfortunately, the trial court’s ruling–as well as the standard form definition of voluntary manslaughter–prohibited the same result. Standard or not, this was error. CALJIC instructions do not have the force of law and are “not sacrosanct[.]” People v. Vargas (1988) 204 Cal.App.3d 1455, 1464.) Where they inadequately define the statutory elements of or defenses to a crime, the courts must reject or modify them. (See, e.g., People v. Beeman (1984) 35 Cal.3d 547, 560.) In any event, as shown above, Doe’s requested instructions would have protected his right to argue heat of passion. In a trial presenting substantial questions of fact regarding both implied malice and heat of passion, the court’s ruling was error. [Footnote 8]
2. Voluntary Manslaughter, The Intent To Kill, And People v. Shannon’s Inappropriate Deference to Stare Decisis
Despite the above analysis derived directly from well-established statutory law on point, a recent Court of Appeal decision rejected it as unauthorized by prior Supreme Court decisions holding that voluntary manslaughter requires an intent to kill. (People v. Shannon, supra, 46 Cal.App.4th at 1368-1370.) Reviewing the statutory framework discussed above, the First District panel agreed with the premise of the defendant’s argument, but determined that the court was bound by principles of stare decisis:
The crux of appellant’s argument is that if the’ jury found an unintentional killing committed with adequate provocation to negate malice, the court’s instructions gave the jury no choice but to convict appellant of second degree murder. Appellant’s argument does make sense. How can a conviction of second degree murder not require an intent to kill while voluntary manslaughter, a less serious crime, requires an intent to kill? Nowhere in section 192, which defines voluntary manslaughter, is an intent to kill mentioned. This element, missing from the statutory definition, is stated in decisional law, often without analysis. As an inferior court we are bound by the Supreme Court’s decision that an intent to kill is an element of voluntary manslaughter. We are limited to recommending to the Supreme Court that this case justifies a reexamination of their previous decisions on this issue. (46 Cal.App.4th at 1369-1370, fn. omitted.)
The problem with Shannon’s surrender to purportedly controlling authority is an inadequate identification of “this issue” for stare decisis purposes. Within the quoted paragraph, there are really two issues stated. The specific issue raised by the defendant was described in the first sentence, and Doe raises it here: Essentially, where the evidence would support findings of both implied malice and heat of passion, may the trial court’s instructions preclude the jury from reaching a verdict of voluntary manslaughter? As to this specific issue, the Shannon court undertook virtually no analysis–other than suggesting that the defendant was logically correct. Nowhere in the opinion is there discussion of the legislatively-constructed relationship between the heat of passion defense and express or implied malice, although that statutory relationship dictates the resolution of the issue. Nor does the opinion acknowledge the Supreme Court’s venerable Doyall decision, although as appellant has shown, its discussion of the relevant statutory principles is directly on point and also would resolve the issue in the defendant’s favor.
Instead of dealing with the issue as actually framed, Shannon stumbled over a related sub-issue, essentially this: Does voluntary manslaughter require an intent to kill as a necessary element? The Court of Appeal acknowledged that this element is “missing from the statutory definition” and is merely “stated in decisional law, often without analysis.” (Ibid.; see id. at 1368-1369: “[O]ur Supreme Court has defined voluntary manslaughter as a specific intent crime requiring an intent to kill (People v. Gorshen (1959) 51 Cal.2d 716, 732-733, disapproved on another point in People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5).”) But the court failed to examine those judicial statements in their proper contexts–which, as far as appellant has determined, have not addressed the specific issue presented here. Indeed, the Supreme Court progenitor for what referred to as an under-analyzed rule appears to have been a case which, ironically, was perfectly consistent with Doyell’s and appellant’s reading of the homicide statutes. As this court recently explained, the “analytically unfortunate” developments went downhill from there:
This doctrine [holding that voluntary manslaughter requires an intent to kill] early on became deeply seated in the case law without thoughtful examination. it stems from the offhand misreading of People v. Freel (1874) 48 Cal. 436, which only holds, correctly, that even if there were an intent to kill the offense could be manslaughter under the heat of passion doctrine. [Citations.] Thereafter the statement often appears without analysis or with a brief reference to the statute or earlier cases. (Citations, including People v. Gorshen, supra, “predicating intentionality on the statutory term ‘voluntary’ . . . .”]
This casual attitude toward reading the manslaughter statute may stem from the fact that the distinction was of little real significance in the criminal law until 1978, when different penalties for the two kinds of manslaughter were first enacted. [Citation.] This well-entrenched doctrine is analytically unfortunate, for an unlawful killing that results from a voluntary battery using force likely to cause great bodily harm but without malice is more sensibly classified, for purposes of culpability, as voluntary manslaughter, regardless of the absence of intent to kill. (People v. Cameron , supra, 30 Cal. App.4th at 604-605, fn. 8, emphasis added.)
Thus, in the same year that Doyell understood heat of passion to be a partial defense to implied malice murder, the Supreme Court in People v. Freel understood that express malice did not prevent a manslaughter conviction under the heat of passion doctrine; indeed, the identification of an intent to kill was not even a necessary step in the analysis:
Whether the homicide amounts to murder or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. In either case there may be a present intention to kill at the moment of the commission of the act. But when 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. (48 Cal. at 437, emphasis added.)
In context, the phrase “although the intent to kill exists” obviously did not state an element of voluntary manslaughter; Freel’s point was simply that even if an intent to kill exists, malice is negated by heat of passion. But a finding of intent to kill was certainly not a prerequisite to a manslaughter verdict; on the contrary, the defendant’s actual intent could be disregarded.
Of course, neither Doyell nor Freel addressed the specific instructional issue raised here–but neither have subsequent Supreme Court cases. Unfortunately, as observed in Shannon and Cameron, supra, the Supreme court later referred. to a specific intent to kill element of voluntary manslaughter without adequate analysis and without reexamining the earlier authorities. For example, in People v. Gorshen, supra, 51 Cal.2d at 732-733, the court characterized a specific intent to kill as “implicit” in section 192’s description of quarrel/ passion manslaughter as “voluntary.” Effectively, this court may choose between authority which actually addresses the relationship between express/implied malice and the heat of passion defense, and authority which construes the voluntary manslaughter statute to include an intent to kill, but does so in an analytical vacuum vis-A-vis the instant issue.
In analyzing the instructional issue not specifically considered by the Supreme Court, this court should also consider other Supreme Court pronouncements which provide an important framework for that consideration: Murder requires a showing of malice; “[i]n contrast, manslaughter is the unlawful killing of a human being without malice [Citations. ]” (People v. Nieto Benito (1992) 4 Cal.4th 91, 102, emphasis in original.) The malice requisite for murder may be either express (i.e., with intent to kill) or implied. “Implied malice is present ‘when no considerable provocation appears . . . .’ [Citations.]” (Ibid., emphasis added, quoting § 188.) Provocation is addressed in the Penal Code’s definition of voluntary manslaughter. (People v. Wickersham, supra;)32 Cal.3d at 326.) “[T]hat definition has not changed since section 192 was first enacted in 1872. Section 192 defines voluntary manslaughter as the unlawful killing of a human being without malice . . . [¶] . . . upon a sudden quarrel or heat of passion.’” (People v. Saille, supra, 54 Cal.3d at 1114, emphasis added.) A passion/quarrel killing is therefore committed without malice.
Thus, the Supreme Court recognizes (as the Penal Code has declared since 1872) that a finding of implied malice is dependent on an absence of provocation; provocation includes the passion/quarrel element of voluntary manslaughter; and a finding of that element negates malice. The conclusion should be inescapable to any court facing this issue never directly examined by the Supreme Court: A finding of heat of passion means that the defendant is not guilty of implied malice murder.
Moreover, 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), a person
might understandably react by killing the other party–unlawfully, though not maliciously, 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 (1946) 28 Cal.2d 121, 139, and People v. Wickersham (1982) 32 Cal.3d 307, 326; see also People v. Fenenbock, supra, 46 Cal. App.4th at 1704 [issue is whether defendant’s “reason was so disturbed by anger or outrage that he acted impulsively.” (Emphasis added.)].)
Regarding the criticized reading of “voluntary” in section 192 as stating an “intent to kill” element of voluntary manslaughter (e.g., People v. Gorshen, supra, 51 Cal. 2d at 732-733), this court is faced with other Supreme Court authority which further undermines that construction. First, implied malice is an imputed intent to kill (Doyell), so even if “voluntary” means “with intent to kill,” nothing should prevent that intent from being imputed in a similar fashion–a , point not addressed in Gorshen, supra–or any other Supreme Court case, for that matter. (See People v. Brown, supra, 35 Cal.App.4th at 714-715 [citing Doyell and discussing express and implied malice as functionally equivalent mental states].) [Footnote 9]
Second, to the extent that the mens rea of implied malice at one time might have been deemed inconsistent with “voluntariness,” the Supreme Court’s current understanding of the concept must be taken into account: “[T]he element of implied malice that requires that the defendant act with knowledge of the danger to, and in conscious disregard of, human life, is closely akin to [a] definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.” (People v. Whitfield, supra, 7 Cal. 4th at 450.) Indeed, the very notion of “intent” is now considered common to both forms of malice: “When it is established that the killing was the result of an intentional act committed with express or implied malice, no other mental state need be shown in order to establish malice aforethought. (§ 188.)” People v. Nieto Benitez, supra, 4 Cal.4th at 103, emphasis added; see also People v. Shannon, supra, 30 Cal.App.4th at 599-600.) Because intentionality is treated as an element of malice, whether express or implied, even a construction of section 192’s “voluntary” as requiring intentionality supports appellant’s position.
In sum, it should be unnecessary to follow Shannon’s lead and defer to Supreme Court precedent which does not fully address the issue here. There is ample authority to support this court in holding that California law does not prevent passion/quarrel mitigation of implied malice murder to voluntary manslaughter.
C. The Error Requires Reversal.
“[I]t is reversible error to refuse a manslaughter instruction in a case where murder is charged, and the evidence would warrant a conviction for manslaughter.;” [Citation.] However, even where the error would be otherwise reversible, the error is harmless when the factual question posed by the omitted instructions was necessarily resolved adversely to the defendant under other, properly given instructions. [Citation.] People v. Brooks (1986) 185 Cal.App.3d 687, 696-697.)
In this case, the jury was instructed only on first degree torture murder and second degree implied malice murder. There were no other possible homicide verdicts, and no instruction required consideration of provocation and heat of passion. The finding of malice was therefore entirely independent of whatever effect the requested instructions might have had. Doe’s conviction for first degree murder must be reversed. at 697. Moreover, the court’s ruling deprived Doe of a valid defense to the premeditation element of first degree murder, equally unidentified in any other instruction: Even where provocation is deemed insufficient to reduce murder to manslaughter, it may nevertheless raise a reasonable doubt as to whether the defendant acted with premeditation and deliberation, an element of murder by torture. (§ 189; People v. Wickersham, supra, 32 Cal.3d at 329,- People v. Middleton (1997) 52 Cal.App. 4th 19, § I-B [defendant must request instruction]; CT 626 [Doe’s requested instruction].)
Thus, the matter should be reversed and remanded. for a new trial in Count 1 or reduction to the least offense for which appellant would have been convicted but for the error, voluntary manslaughter.
TO THE EXTENT THAT THE HOMICIDE STATUTES AS INTERPRETED BY THE COURTS AND EXPLAINED IN THE STANDARD JURY INSTRUCTIONS PRECLUDE A VERDICT OF MANSLAUGHTER WHERE AN UNINTENTIONAL KILLING WAS COMMITTED IN THE HEAT OF PASSION, APPELLANT WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAWS.
Appellant has argued above that the jury should have been given the option of finding that an unintentional killing committed in the heat of passion was manslaughter, whether involuntary (issue V-C-4) or voluntary (issue VI). The present issue concerns California law, as applied in. the standard CALJIC instructions and by the trial court here, to the extent that it requires a verdict of murder where the defendant kills “with knowledge of the danger to, and in conscious disregard of, human life” (People v. Whitfield, supra, 7 Cal.4th at 450), but with adequate provocation which would otherwise result in a verdict of manslaughter. As a result of the trial court’s ruling, purportedly consistent with state law, appellant was unfairly deprived of the possibility of a manslaughter verdict and ensured one of either second degree murder or first degree murder by torture. Such an approach violates a defendant’s federal and state constitutional rights to equal protection and due process. (U.S. Const., Amend. 14; Cal. Const., art. I, § 7, art. IV, § 16.)
In making voluntary manslaughter in the heat of passion, but not implied malice murder, dependent on an intent to kill, the law cannot withstand scrutiny. It unjustifiably imposes significantly harsher treatment on a defendant who killed under provocation, based solely on whether the intent to kill was express or implied (i.e., whether it was proved or legally imputed; see People v. Doyell, supra, 48 Cal. at 95). In the latter case, the defendant would be much more culpable, as he or she would be convicted of at least second degree murder. A defendant who actually intended to kill, by contrast, would be convicted of voluntary manslaughter.
Under the alternative interpretations of the homicide statutes suggested in appellant’s issues V and VI, this problem is removed: The defendant whose intent to kill was merely implied is either guilty of involuntary manslaughter or voluntary manslaughter. [Footnote 10]
Because the issue involves the state’s deprivation of Doe’s personal liberty–he was subject to at least 15 years to life in prison (§ 190 . subd. (a)), as opposed to a term of two to eleven years (§ 193, subds. (a) & (b))–the appropriate standard of review is strict scrutiny. People v. Jacobs (1984) 157 Cal.App.3d 797, 801. “[T]he state must establish that a compelling interest justifies the law and that the distinctions drawn are necessary to further that purpose. [Citations.]” (Ibid.)
Appellant acknowledges he must show that he is “similarly situated” to passion/quarrel defendants who would be convicted of voluntary manslaughter, as opposed to murder, because of the intent to kill. (Ibid.) And as a general matter “‘[p]ersons convicted of different crimes are not similarly situated for equal protection purposes.’ [Citations.]” (Id. at 803, emphasis in original.) But implied malice murder and voluntary manslaughter are functionally identical, as far as the determination of this issue is concerned. In both cases, the defendant acted with adequate provocation in killing a victim. The only difference is in the defendants’ mens rea-i.e., the difference between express malice and implied malice (in the absence of provocation). “Rather than defining different mens reas, however, express and implied malice are really a shorthand way of denoting the requisite mental state for murder known as malice aforethought. [Citations.]” (People v. Brown, supra, 35 Cal.App.4th at 715.)
Thus, in the context of the issue here, the two offenses are of intrinsically the same quality” (Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [86 L.Ed. 1655, 1660, 62 S.Ct. 1110]). The state may have a compelling interest in imposing increased punishment because of an absence of provocation, and because of an intentional as opposed to unintentional killing. But there is no corresponding interest in providing for increased punishment where provocation is shown, simply because the defendant’s intent to kill is implied instead of proved. To paraphrase the Supreme Court:
the state has no legitimate interest in obtaining a conviction of murder when, by virtue of defendant’s [act in sudden quarrel or heat of passion], the jury entertains a reasonable doubt whether defendant harbored malice. . . . . The vice is the element of malice; in its absence the level of guilt must decline. (People v. Flannel, supra 25 Cal.3d at 680.)
Indeed, such an inexplicably disparate approach is neither “procedurally fair” nor “reasonably related to a proper legislative goal” and therefore violates due process as well. (People v. Cooper (1996) 43 Cal.App.4th 815, 829.)
If the trial court’s denial of manslaughter instructions was correct, then Doe was unconstitutionally convicted of murder, and his conviction must be reversed.
B-716b FOOTNOTES [Footnotes 7-10]
Footnote 7: Although Doe was not charged with first degree premeditated murder, the prosecution’s torture murder theory required a finding of deliberation and premeditation with respect to the intent to inflict torturous pain. (§ 189; CALJIC No. 8.24; CT 439.)
Footnote 8: Appellant’s counsel thanks appellate attorney Dennis Riordan for assistance with this argument.
Footnote 9: As an example of Supreme Court language which arguably leaves room for the above construction: “A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. (§ 192.) But a defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a ‘sudden quarrel or heat- of passion, (§ 192, subd. (a)), or when the defendant kills in ‘unreasonable self-defense’ . . . .” (People. v. Barton, supra,12 Cal.4th at 199, case citations omitted.)
Although Barton cited the manslaughter statute as authority, the word “intentional” was of course added by the court without analysis. Not facing the issue raised here, the Supreme Court did not say that if the same intent to kill could have been imputed to the defendant through the implied malice doctrine (per Doyell), the manslaughter statute was inapplicable. “Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a Proposition not therein considered. [Citation.]” (People v. Superior Court (Marks)(1991) 1 Cal.4th 56, 65-66, emphasis added.)
Footnote 10: Appellant asks this court to consider the constitutional impact when construing the homicide statutes in connection with issues V and VI. When possible, a statute must be interpreted so as to avoid a constitutional problem. People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509.)