Return to CALJIC Part 5-8 – Contents
F 8.40 n1 Availability Of Intoxication/Mental Defect To Reduce Express Malice Murder To Voluntary Manslaughter (PC 192).
In People v. Saille (91) 54 C3d 1103, 1115-17 [2 CR2d 364], the court held that an intentional killing may not be reduced from murder to voluntary manslaughter by defendant’s intoxication or other mental impairment. In so doing, the court concluded that a “deliberate intention unlawfully to take a life” (PC 188) requires no more than a mere intent to kill absent excuse or mitigation (e.g., heat of passion). The court concluded that the adverb “unlawfully” in the express malice definition “means simply that there is no justification, excuse, or mitigation for the killing recognized by the law. [Citation].” (Saille, 54 C3d at 1115.)
In In re Christian S. (94) 7 C4th 768 [30 CR2d 33], the attorney general argued that this language in Saille eliminated any requirement of an intent to act unlawfully for express malice. Christian S. rejected this argument: “We … reject the suggestion that we previously decided in [Saille] that Penal Code section 188’s definition of express malice does not require an intent to act unlawfully. This reads too much into Saille.” (In re Christian S., 7 C4th at 779 [emphasis in original].) Thus, after noting that the above quoted language in Saille was taken from two court of appeal decisions, the Christian S. court concluded that “the word ‘unlawfully’ modifies the word ‘intend’ so that the statute requires an intent to act unlawfully or, put in everyday language, the defendant must have a wrongful intent.” (In re Christian S., 7 C4th at 778.)
Hence, Christian S. unmistakably held that wrongful intent, i.e., a specific intent to kill unlawfully, is a requisite mental element of malice. And, because PC 22 and PC 28 permit the use of voluntary intoxication or mental condition to negate specific intent, such evidence should be available to negate the specific intent to act wrongfully or unlawfully. Even if the defendant intended to kill, the killing should be voluntary manslaughter if the specific intent to act unlawfully was negated by voluntary intoxication or a mental condition.
While Christian S. specifically purported to exclude unreasonable mistake of fact and mistake of law as means by which the intent to act unlawfully could be negated (In re Christian S., 7 C4th at 779, fn 3), it did not similarly exclude intoxication and mental condition. Nor could such an exclusion pass constitutional muster even if it had been tendered. A specific wrongful intent is an element of malice and PC 22 and PC 28 authorize the use of intoxication and mental condition evidence to negate such an element. (See also, People v. Whitfield (94) 7 C4th 437, 451 [27 CR2d 858].) To preclude a defendant from doing so would be a clear violation of settled federal constitutional principles. (See also, People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747]; but see FORECITE F 4.21 n11.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII.]
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(C).]
NOTE: Since duress may also negate wrongful intent, this may provide another basis by which to obtain voluntary manslaughter despite the defendant’s intent to kill. (See FORECITE F 4.40b.)
[Research Note: See FORECITE BIBLIO 8.40, et al.]
F 8.40 n2 Shooting At Person Does Not Necessarily Establish Intent To Kill (PC 192).
See FORECITE F 572 Note 8.
F 8.40 n3 Mercy Killing As Voluntary Manslaughter (PC 192).
When the defendant was a participant in a “mercy killing,” the current law in California provides no options between the two extremes of murder at one end and aiding and abetting suicide at the other. Thus, if the defendant merely furnishes the means of death, he is guilty of aiding a suicide but if he actually performs, or actively assists in performing, the overt act resulting in death, then he is liable for murder. (In re Joseph G. (83) 34 C3d 429, 436 [194 CR 163]; People v. Matlock (59) 51 C2d 682, 694 [336 P2d 505]; People v. Cleaves (91) 229 CA3d 367, 375-76 [280 CR 146].)
In Cleaves, the court recognized that under English law the survivor of a genuine suicide pact who actually kills the other person is guilty of manslaughter rather than murder and that the courts in other contexts have defined a crime so as to give effect to the statutory definition of manslaughter when factors render the person incapable of harboring malice. Nevertheless, the Cleaves court declined to resolve the issue, thus rendering it ripe for continued litigation.
NOTE: Although California provides no technical options between the two extremes of murder and aiding and abetting suicide in a “mercy killing” situation, there may be a basis for obtaining a heat of passion voluntary manslaughter instruction in such a case. Based on the well known case of People v. Borchers (58) 50 C2d 321, 324 [325 P2d 97] (passion is any “violent intense, high-wrought or enthusiastic emotion”) and the reasoning of People v. Wu DEPUBLISHED (91) 235 CA3d 614 [286 CR 868], a special instruction could be requested making it clear that passion need not necessarily be anger or rage. (See California Lawyer September 1991 pages 42-48 describing a case in which a court trial of a mercy killing resulted in a verdict of voluntary manslaughter.) [FORECITE subscribers may obtain a free copy of this article. Ask for Article Bank # A-21.]
In order to obtain an instruction upon aiding and abetting suicide, the evidence must be susceptible of an interpretation that the defendant merely furnished the means of the suicide and did not actually perform or actively assist in performing the overt act resulting in death. (Cleaves 229 CA3d at 374-76.)
(See also FORECITE F 18.55 n1 [Aiding in Suicide (PC 401)].)
[Research Note: See FORECITE BIBLIO 8.40, et al.]
F 8.40 n4 Voluntary Manslaughter: Sua Sponte Instruction On Legal Definition Of Death (PC 192).
In common usage, a person is killed only when he or she is totally lifeless, i.e., when both heart and brain have ceased to operate. (See Barber v. Superior Court (83) 147 CA3d 1006, 1013 [195 CR 484] [noting that death has historically been defined to require cessation of heart as well as respiratory functions].) But because California law now defines death as cessation of brain or cardiac activity (see “definition of viable fetus” above), the term “killing” has a technical meaning different from the common usage upon which the trial court must instruct sua sponte when appropriate. For example, when the acts which are relied upon to prove the defendant’s mental state (e.g., premeditation, deliberation, torture, malice) may have occurred after the cessation of the heart or respiratory system then there is a danger that the jury will not make a proper determination of concurrence of act and intent without an adequate definition of “death.” [See Brief Bank # B-534 for additional briefing on this issue.]
[Research Note: See FORECITE BIBLIO 8.40, et al.]
F 8.40 n5 Voluntary Manslaughter: Definition Of Viable Fetus (PC 192).
See FORECITE F 8.10a.
[Research Note: See FORECITE BIBLIO 8.40, et al.]
F 8.40 n6 Saille‘s Abolition Of Non-statutory Manslaughter Is Not A “New Rule of Law” (PC 192).
In People v. Lopez (92) 11 CA4th 1115, 1121-22 [14 CR2d 692], the court rejected the argument that People v. Saille (92) 54 C3d 1103, 1120 [2 CR 364] announced a new rule which should not be applied retroactively to cases tried before Saille.
[Research Note: See FORECITE BIBLIO 8.40, et al.]
F 8.40 n7 Voluntary Manslaughter: Battered Woman/Child Syndrome (PC 192).
See FORECITE F 9.35.1.
[Research Note: See FORECITE BIBLIO 8.40, et al.]
F 8.40 n8 Involuntary Manslaughter Not LIO Of Voluntary Manslaughter (PC 192).
In People v. Orr (94) 22 CA4th 780, 782-85 [27 CR2d 553], the court concluded that because voluntary manslaughter can be committed without committing involuntary manslaughter, “the latter is not a lesser included offense of voluntary manslaughter.”
[Re: Lesser Related Offenses see FORECITE LRO I and LRO II.]
[Research Note: See FORECITE BIBLIO 8.40, et al.]
F 8.40 n9 Unlawful Act Manslaughter As Lesser-Included Of Murder.
[A brief arguing that the trial court has a sua sponte duty to instruct on the LIO of unlawful act manslaughter, in a murder prosecution is available to FORECITE subscribers; ask for Brief Bank # B-698.]
F 8.40 n10 Voluntary Manslaughter: Consecutive Terms For Multiple Offenses During Single Transaction.
Use Note: Assembly Bill 1137, effective January 1, 1997, added PC 1170.16 which authorizes imposition of a full, separate, and consecutive term for each voluntary manslaughter offense (PC 192(a)), whether or not the offenses were committed during a single transaction.
F 8.40 n11 Provocation/Heat Of Passion Can Reduce Unintentional Implied Malice Murder To Manslaughter.
People v. Lasko (2000) 23 C4th 101, 109-110 [96 CR2d 441] held that voluntary manslaughter does not require intent to kill. “Thus, a killer who acts in a sudden quarrel or heat of passion lacks malice and is therefore not guilty of murder, irrespective of the presence or absence of an intent to kill. Just as an unlawful killing with malice is murder regardless of whether there was an intent to kill, an unlawful killing without malice (because of a sudden quarrel or heat of passion) is voluntary manslaughter, regardless of whether there was an intent to kill. In short, the presence or absence of an intent to kill is not dispositive of whether the crime committed is murder or the lesser offense of voluntary manslaughter.“ (Lasko, 23 C4th at 109-110, emphasis in original.) In so doing, the court emphasized the absurdity of the contrary view. “Under the Attorney General‘s approach, one who shoots and kills another in the heat of passion and with the intent to kill is guilty only of voluntary manslaughter, yet one who shoots and kills another in the heat of passion and with conscious disregard for life but with the intent merely to injure, a less culpable mental state than intent to kill, is guilty of murder. This cannot be, and is not, the law. [¶] We drew a similar comparison in In re Christian S. (94) 7 C4th 768 [30 CR2d 33]. There, we held that a defendant who unintentionally kills in the actual but unreasonable belief in the necessity of self defense (“imperfect self-defense“) is not guilty of murder. ‘A contrary conclusion,‘ we reasoned, ‘namely, that imperfect self-defense applies only in cases of express, but not implied, malice would lead to a totally anomalous and absurd result, in which a defendant, who unreasonably believes that his life is in imminent danger, would be guilty only of manslaughter if he acts with the intent to kill his perceived assailant, but would be guilty of murder if he does not intent to kill, but only to seriously injure, the assailant.‘ [Citation].“ (Emphasis in original.)
The Lasko Court concluded that the erroneous instruction requiring an intent to kill for voluntary manslaughter was an error of state law in the context of that case. However, the court failed to consider whether the error violated equal protection and other constitutional provisions, as explained below.
A statutory scheme which punishes a lesser offense more seriously than a greater offense may violate the state (Art. I, § 16) and federal (8th and 14th Amendment) prohibitions against cruel and unusual punishment. (See People v. Schueren (73) 10 C3d 553, 558-561 [111 CR 129]; see also Hobbs v. State (69) 252 NE2d 498 [253 Ind. 195] [defendant cannot receive a greater punishment for unlawful entering, a necessarily included offense of second-degree burglary, than he would receive for the greater offense of second-degree burglary]; Dembrowski v. State (68) 240 NE2d 815 [251 Ind. 250] [Eighth Amendment violation to impose on a defendant a greater punishment for robbery than for armed robbery, when robbery is a necessarily included lesser offense of armed robbery]; Robert v. Collins (4th Cir., 1976) 544 F2d 168, 169-70 [Eighth Amendment violation to impose a greater sentence for simple assault than could have been imposed for assault with intent to commit murder, when simple assault is a necessarily included offense]; Cannon v. Gladden (55) 281 P2d 233 [203 Or. 629] [statutory scheme punishing rape with a sentence of up to 20 years, and assault with intent to commit rape with a sentence of up to life, violative of due process to extent it punishes greater offense less than lesser-included offense].)
Additionally, such a scheme may be a violation of substantive due process principles under 14th Amendment (see e.g., Gray v. Whitmore (71) 17 CA3d 1, 21 [94 CR 904].) Further, the equal protection clause of the 14th Amendment could also be implicated. [See Brief Bank # B-716 for additional briefing on these issues.]
Furthermore, to the extent that such an error misleads the jury on an intent element of the charge it may violate the federal constitutional rights to trial by jury and due process. (See People v. Lasko (2000) 23 C4th 101, 113 [96 CR2d 441] [recognizing that inadequate instruction on elements may violate the federal constitution but holding that Lasko‘s jury was not misled under the instructions “taken as a whole“]; see also People v. Breverman (98) 19 C4th 142, 187-95 [77 CR2d 870] (dis. opn. of Kennard, J.) cited in Lasko.)
Additionally, if the heat of passion is viewed as a defense to the malice element of murder, “a defendant has a constitutional right to have the jury consider defenses permitted under applicable law to negate an element of the defense.“ (United States v. Sayetsitty (9th Cir. 1997) 107 F3d 1045, 1414.)
And even if a lesser offense instruction issue arguably doesn’t present a federal constitutional question in a non-capital case, “[t]his general statement may not apply to every habeas corpus review, because the criminal defendant is also entitled to adequate instructions on his or her theory of defense. [Citations.]“ (Bashor v. Risley (9th Cir. 1984) 730 F2d 1228, 1240. Accord, United States v. Unruh (9th Cir. 1987) 855 F2d 1363, 1372, citing Sixth Amendment; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739; Barker v. Yukins (6th Cir. 1999) 199 F3d 867 [due process violation; habeas petitioner had no “meaningful opportunity to present a complete defense when the jury was so plainly misinstructed on a matter critical to her defense“].)
Moreover, to the extent denial of or erroneous manslaughter instructions prevent trial counsel from arguing a crucial defense theory (passion/quarrel) to the jury, the defendant is effectively denied his Sixth Amendment right to effective assistance. (Conde v. Henry, supra, 198 F3d at 739.)
Finally, in the context of the record as a whole, erroneous or denied manslaughter instructions may “‘so infect [] the entire trial that the resulting conviction violates due process.‘ [Citations.]“ (Estelle v. McGuire (91) 502 US 62, 72 [116 LEd2d 385; 112 SCt 475].)
Retroactivity Note: (See People v. Crowe (2001) 87 CA4th 86, 94-95 [104 CR2d 319] [Supreme Court case was applicable retroactively to render error any jury instruction that included intent to kill as element of voluntary manslaughter]; see also FORECITE F 8.40 n15.)
F 8.40 n12 No Right To Voluntary Manslaughter Instruction When Defendant Denies Killing Under Oath.
People v. Sinclair (98) 64 CA4th 1012 [75 CR2d 626] held that when the defendant completely denies shooting the victim under oath, voluntary manslaughter instructions based on heat of passion or imperfect self-defense are not required even on request. (Compare People v. Barton (95 12 C4th 186, 200-01 [47 CR2d 569].) However, the rule enunciated in Sinclair applies only where the sworn testimony of the accused “completely obviates any basis for finding a lesser included offense.” (98 DAR at 6160.) Moreover, Sinclair‘s conclusion is questionable in light of the well-settled principle that “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. [Citation.]” (Mathews v. U.S. (88) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883].)
NOTE: This decision may violate the defendant’s federal constitutional rights to testify and to present a defense (e.g., Rock v. Arkansas (87) 483 US 44 [97 LEd2d 37; 107 SCt 2704]) and against self-incrimination (e.g., Griffin v. California (65) 380 US 609 [14 LEd2d 106; 85 SCt 1229].) (5th and 14th Amendments.) This so because the defendant must choose between the right to testify and the right to advance a defense theory. (See PG VII(C)(22) [Exercise Of One Constitutional Right Cannot Be Conditioned Upon The Denial Of Another.)
F 8.40 n13 Unreasonable Self-Defense With No Intent To Kill Is Voluntary Manslaughter (PC 192(b)).
See FORECITE F 8.45 n3.
F 8.40 n14 Voluntary Manslaughter: Where Only Voluntary Manslaughter Is Charged Prosecution Need Not Disprove Heat Of Passion Or Imperfect Self-Defense.
(See People v. Rios (2000) 23 C4th 450, 468 [97 CR2d 512] [state need not prove malice was lacking by reason of provocation or a belief in the need for self-defense to obtain voluntary manslaughter conviction].)
F 8.40 n15 Retroactivity: Blakeley and Lasko.
In People v. Lasko (2000) 23 C4th 101 [96 CR2d 441], the Supreme Court held that both intentional and unintentional killings that are a result of provocation upon sudden quarrel or heat of passion constitute manslaughter rather than murder because the provocation and heat of passion negate the element of malice. In People v. Blakeley (2000) 23 C4th 82 [96 CR2d 451], the companion case to Lasko, the court, relying on the analysis at the core of Lasko, concluded that a defendant who with intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter. (Blakeley, 23 C4th at 91.)
The Lasko court applied its holding to the appellant before it but did not provide any further guidance with respect to retroactive application of its ruling. People v. Crowe (2001) 87 CA4th 86, 94-95 [104 CR2d 319], held that Lasko applies in all cases not yet final as of the date of decision because the Supreme Court did not establish a new rule of law but had simply given effect to a statutory rule that the courts had previously misconstrued. Nothing in Crowe suggests the “retroactivity” of the Lasko definition of voluntary manslaughter is limited to cases in which the defense is predicated on a claim of heat of passion or sudden quarrel rather than imperfect self-defense.
In Blakeley, unlike Lasko, the Supreme Court specifically addressed the issue of retroactivity and held its decision may not be applied either to the defendant before it or others whose offense occurred prior to June 2, 2000, the date of the decision. (Blakeley, 23 C3d at 92.)
People v. Johnson (2002) 98 CA4th 566, 569 [119 CR2d 802], resolved this conflict as follows:
“Regardless of the date of the offense, it is error to instruct the jury that voluntary manslaughter requires a finding that ‘the killing was done with the intent to kill‘ if the defendant claims the killing was done in the heat of passion or sudden quarrel. [Citations to Lasko, 23 C4th at 111; Crowe, 87 CA4th at 93.] If the defendant asserts the killing was done in an honest but mistaken belief in the need to act in self-defense, however, and the offense occurred prior to June 2, 2000, the jury must be instructed that unintentional killing in unreasonable self-defense is involuntary manslaughter. [Citation to Blakeley, 23 C4th at 93.] Under these circumstances, the Lasko instruction as to the definition of voluntary manslaughter cannot be given; simply put, the constitutionally mandated rule of non-retroactivity of Blakeley overrides the general applicability of the Lasko definition of voluntary manslaughter recognized in Crowe. [Footnote omitted.]” (See also People v. Parras (2005) 128 CA4th 1602 [Blakeley, which held that a killing in unreasonable self-defense is voluntary manslaughter and does not require an intent to kill, is not retroactive, but Lasko, which held a heat-of-passion killing does not require intent to kill, is retroactive].)
F 8.40 n16 Due Process Challenge To Law Of Homicide In California Based On Confusion And Ambiguity.
The law of homicide in California is so irreconcilably contradictory and confusing that persons of “common intelligence must necessarily guess as to its meaning and differ as to its application.” Connolly v. General Construction Co. (26) 269 US 385 [70 LEd 322; 46 SCt 126].) The latest cases from the California Supreme Court: People v. Blakeley (2000) 23 C4th 82 [96 CR2d 451], People v. Lasko (2000) 23 C4th 101 [96 CR2d 441] and People v. Rios (2000) 23 C4th 450 [97 CR2d 512] have left the law in a state of uncertainty.
Some of the contradictions and unanswered questions are well analyzed in two articles on the subject: Madeline McDowell, Blakeley/Lasko/Rios/Cox – California’s “New” Homicide Law, (2000 Central California Appellate Program) and Laura Schaefer, The State of the Law of Manslaughter, California Criminal Defense Practice Reporter (February, 2001).
As to the elements of voluntary manslaughter, Linda Schaefer discusses several possible interpretations of the law, none of which are fully consistent with all the cases: “Several alternative conclusions might be drawn from Blakeley, Lasko, and Rios concerning the law of voluntary manslaughter. First, it is clear that if voluntary manslaughter is considered in conjunction with murder, the prosecution will have to prove the absence of provocation or imperfect self-defense beyond a reasonable doubt to establish malice. The requisite mental state is malice aforethought, mitigated by the circumstances of provocation or imperfect self-defense.
“But if the prosecution charges only voluntary manslaughter, what is the culpable mental state for the defense? Under the reasoning of Blakeley and Lasko, the prosecution should be required to prove beyond a reasonable doubt express or implied malice. Requiring the prosecution to prove malice, however, is contrary to Rios, which states that, by charging voluntary manslaughter, the absence of malice is conceded.” (Schaefer, The State of the Law of Manslaughter, California Criminal Defense Practice Reporter, p. 51.)
In this regard, it may be argued that, when murder is not charged, voluntary manslaughter requires either intent to kill or conscious disregard (implied malice) even in situations where there is no evidence of provocation and/or imperfect self-defense. (See FORECITE F 8.40e.) However, this solution raises the question, why shouldn’t these elements also be required for voluntary manslaughter when it is charged as a lesser included offense of murder. Of course, the problem in that situation is that there would be no elemental distinction between the voluntary manslaughter and second degree murder charges.
As to the definition of malice, the cases are no longer clear as to whether a “bare” intent to kill is sufficient or whether a further wrongful intent is required – which may be negated by intoxication and/or mental impairment. (See Madeline McDowell, Blakeley/Lasko/Rios/Cox – California’s “New” Homicide Law, pp. 32-33; see also FORECITE F 3.32 n11.)
Given the above state of confusion, the law of homicide is not sufficiently clear to provide adequate notice. Moreover, the ambiguity and vagueness in the law of homicide prevents the fair and reliable imposition of criminal liability required by the Due Process and Equal Protection Clauses of the federal constitution.
The vagueness doctrine under the Due Process Clause of the 5th and 14th Amendments to the U.S. Constitution requires that all persons be given fair notice of what conduct is against the law and may subject them to criminal liability. This doctrine provides that a statute is void if the conduct forbidden by it is so poorly defined that persons of “common intelligence must necessarily guess at its meaning and differ as to its application.” (Connolly v. General Construction Co. (26) 269 US 385, 391 [70 LEd 322; 46 SCt 126].) Not only do vague statutes fail to provide adequate notice but they also result in arbitrary enforcement of statutes. “`A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant danger of arbitrary and discriminatory application.’ [Citation.]” (People v. Superior Court (Caswell) (88) 46 C3d 381, 390 [250 CR 515]; see also City of Chicago v. Morales (99) 527 US 21 [144 LEd2d 67; 119 SCt 1849].) Additionally, a vague statute offends fundamental notions of fairness by failing to give adequate warning to persons of ordinary intelligence of what is prohibited, and by giving impermissible discretion to governmental authorities to enforce the law arbitrarily and subjectively. (Kolender v. Lawson (83) 461 US 352 [75 LEd2d 903; 103 SCt 1855].)
In determining a vagueness challenge, a court will look to whether the terms of the statute, although undefined or uncertain in the statute, have established canons of construction that provide sufficient guidance as to their meaning. (See e.g. Connolly, 269 US at 394.) In particular, the courts look for well-established common law definitions of questionable terms or other state case law demonstrating that the judiciary has sufficiently interpreted the questionable language. (Lanzetta v. New Jersey (39) 306 US 451, 454-55 [83 LEd 888; 59 SCt 618]; Grayned v. City of Rockford (72) 408 US 104, 111 [33 LEd2d 222; 92 SCt 2294].)
As set forth above, the law of homicide in California is in a massive state of confusion and, therefore, fails to meet the constitutional obligation of providing fair notice and guidance.
F 8.40 n17 Intent To Kill Is An Element Of Attempted Voluntary Manslaughter.
Intent to kill is an element of the crime of attempted voluntary manslaughter. (See People v. Montes (2003) 112 CA4th 1543, 1546.)
If the crime of attempted murder requires a specific intent to bring about a desired result (the killing of a human being), then the crime of attempted voluntary manslaughter must also require a specific intent to bring about that same desired result (the killing of a human being). (Montes, 112 CA4th at 1549-50.)
F 8.40 n18 Heat Of Passion: Not Available When Defendant Intentionally Caused The Provoking Conduct By The Victim.
(See People v. Johnston (2003) 113 CA4th 1299.)
F 8.40a Homicide: Causation
*Re: CJ 8.40:
(See FORECITE F 8.55a.)
F 8.40b
Voluntary Manslaughter–Defined
*Modify 3rd ¶ of CJ 8.40 as follows [Added language is capitalized]:
There is no malice aforethought if the killing occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in the necessity to defend oneself [AND] [OR] [ANOTHER] against imminent peril to life or great bodily injury].
Points and Authorities
(See FORECITE F 5.17d.)
F 8.40c
Modification When Crime Involves Fetal Victim
*Modify CJ 8.40 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
F 8.40d
Heat Of Passion: Types Of Emotion
*Add to CJ 8.40:
The passion necessary to constitute heat of passion need not mean rage or anger but may be any violent, intense, overwrought or enthusiastic emotion which causes a person to act rashly and without deliberation and reflection.
Points and Authorities
The instruction above is derived from language in the California Supreme Court decisions People v. Berry (76) 18 C3d 509, 515 [134 CR 415] and People v. Borchers (58) 50 C2d 321, 329 [325 P2d 97]. The Courts of Appeal have divided on whether the trial court could, or should, give this instruction on request. (Cf. People v. Rupe (88) 206 CA3d 1537, 1540-42 [256 CR 126] [court should not give the instruction even if requested], with People v. Thompkins (87) 195 CA3d 244, 256-57 [240 CR 516] [the court should give some such “pinpoint“ instruction on request]; see also People v. Steele (2002) 27 C4th 1230, 1251-54 [120 CR2d 432]; but see People v. Kanawyer (2003) 113 CA4th 1233 [long history of criticism, reproach, and ridicule at the hands of his grandparents not sufficient provocation].)
F 8.40e
Voluntary Manslaughter When Murder Not Charged:
Requirement Of Intent To Kill Or Conscious Disregard
*Add to CJ 8.40 as follows:
The accused is charged with voluntary manslaughter. [He] [She] may not be convicted of voluntary manslaughter unless if the prosecution proves beyond a reasonable doubt that:
1. The defendant killed another person [or fetus] [and]
2. [He] [She] committed the killing with the intent to kill [and]
3. The killing was committed without excuse or justification.
The crime is voluntary manslaughter if either:
a. (He/She) acted deliberately and wrongfully intended to kill or
b. The prosecutor proves each of the following requirements beyond a reasonable doubt:
1. The accused killed ______________ (name of person killed);
2. The killing was committed without excuse or justification; AND
3. The accused either:
a. Committed the killing with an intent to kill _____________ (name of person killed) OR
b. Committed the killing by:
i. Committing an intentional act which caused ___________’s (name of victim) death; AND
ii. The natural consequences of the intentional act were highly dangerous to human life AND
iii. The accused knew that the act was highly dangerous to human life and deliberately performed that act with conscious disregard for that danger to life.
Points and Authorities
Until the year 2000, voluntary manslaughter was said to require an intent to kill. (See e.g., CJ 8.40, Element # 3 (1996 ed.).) However, People v. Lasko (2000) 23 C4th 101 [96 CR2d 441] and People v. Blakeley (2000) 23 C4th 82 [96 CR2d 451] held that voluntary manslaughter can be committed without an intent to kill if the defendant unintentionally killed in the heat of passion or with imperfect self-defense. Subsequently, People v. Rios (2000) 23 C4th 450 [97 CR2d 512] appeared to contradict Lasko and Blakeley by suggesting that in a case where murder is not charged: “[A] conviction of voluntary manslaughter is supported by proof and findings, as here, that the homicide was unlawful and intentional.” (People v. Rios, 23 C4th at 450.) These contradicting messages from the state’s highest court as to the elements of homicide raise federal constitutional concerns. (See FORECITE F 8.40 n16.)
However, until the confusion is clarified, the prosecution should be required to prove either an intent to kill or implied malice when voluntary manslaughter is charged. The intent to kill element is suggested by the above passage from Rios. The implied malice element is suggested by the following language, also from Rios:
“In Blakeley and Lasko, we recently stated that specific intent to kill is not a necessary element of voluntary manslaughter. [Blakeley, at 88; Lasko, at 108.] However, we meant only to make clear that voluntary manslaughter, but no lesser offense, is also committed when one kills unlawfully, and with conscious disregard for life, but lacks malice because of provocation or imperfect self-defense. [Blakeley, at 90-91; Lasko, at 90-92.]
NOTE: The above instruction was adapted from the recommended instruction in Madeline McDowell’s Blakeley/Lasko/Rios/Cox – California’s “New” Homicide Law, (2000 Central California Appellate Program).
CAVEAT: CJ 8.40 (2001 Revision) includes an alternative to intent to kill voluntary manslaughter based on “conscious indifference.” However, CJ 8.40 fails to further explain or define this term. To the extent that “conscious indifference” is intended to correspond with implied malice, it should be so defined.
However, there is a conceptual problem with making implied malice an element of both voluntary manslaughter and murder since there would be no difference between the two crimes. On the other hand, as discussed above, and as apparently concluded by the CALJIC Committee, Blakeley, Lasko and Rios seem to call for such a result.
