F 570.1 Titles And Identification Of Parties

F 570 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense

TABLE OF CONTENTS
F 570.1 Titles And Identification Of Parties
F 570.1 Inst 1 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Title
F 570.1 Inst 2 Identification Of Prosecution And Defendant

F 570.2 Voluntary Manslaughter: Heat of Passion— Lesser Included Offense: Tailoring To Facts: Persons, Places, Things And Theories
F 570.2 Inst 1 CALCRIM 570 Improperly Requires Jurors To Find That A Reasonable Person Would Kill When Provoked
F 570.2 Inst 2 Insulting Words May Be Adequate Provocation

F 570.3 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Language That Is Argumentative, Confusing, Etc. [Reserved]

F 570.4 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Burden Of Proof Issues
F 570.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 570.4 Inst 2 Voluntary Manslaughter: Modification Of Burden Shifting Language

F 570.5 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Elements And Definitions
F 570.5 Inst 1 Heat Of Passion: Applicability To Aider And Abettor
F 750.5 Inst 2 (a-f) Heat Of Passion: Prior Threats Or Assaults; Battered Person Syndrome

F 570.6 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Defense Theories
F 570.6 Inst 1 Heat Of Passion: Consideration Of Defendant’s Culture

F 570.7 Voluntary Manslaughter: Heat of Passion— Lesser Included Offense: Preliminary Fact Issues [Reserved]

F 570.8 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Unanimity/Duplicity/Multiplicity [Reserved]

F 570.9 Voluntary Manslaughter: Heat of Passion— Lesser Included Offense: Lesser Offense Issues [Reserved]

Return to Series 500 Table of Contents.

F 570.1 Titles And Identification Of Parties

F 570.1 Inst 1 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Title

See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.

F 570.1 Inst 2 Identification Of Prosecution And Defendant

See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.

F 570.2 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Tailoring To Facts: Persons, Places, Things And Theories

F 570.2 Inst 1 CALCRIM 570 Improperly Requires Jurors To Find That A Reasonable Person Would Kill When Provoked

ALERT: CALCRIM HISTORY – The CALCRIM Committee addressed this defect in its December 2008 revisions.

*Modify CC 570, paragraph 5, sentence 4 as follows [added language is underlined; deleted language is stricken]:

Alternative a [delete sentence 4 which provides]:

In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.

Alternative b [CC 570, Element 3 Format]:

In deciding evaluating whether the provocation was sufficient, consider whether the provocation would have caused a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts to act rashly and without due deliberation, that is, from passion rather then judgment.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Improper To Require Finding That Person Of Average Disposition Would Kill In Response To Provocation—CALCRIM 570, paragraph 5, sentence 4, improperly suggests that a reasonable person would kill in the same situation. Most ordinary lay jurors would not believe that it is reasonable to kill in response to provocation. Accordingly, CC 570 paragraph 5, sentence 4, should be deleted or modified to conform with the correct statement of objective reasonableness in paragraph 2, Element 3.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 570.2 Inst 2 Insulting Words May Be Adequate Provocation

*Add to CC 570:

Insulting words or gestures may be adequate provocation.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Insulting Words Or GesturesC CALCRIM 570, Related Issues, cites People v. Dixon (1961) 192 CA2d 88, 91 for the proposition that insulting words or gestures can never be legally adequate provocation. In People v. Valentine (1946) 28 C2d 121, 141-44, the Supreme Court overruled the line of cases relied upon by Dixon to establish that proposition and refused to so limit the legal definition of provocation.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 570.3 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Language That Is Argumentative, Confusing, Etc. [Reserved]

F 570.4 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Burden Of Proof Issues

F 570.4 Inst 1 Relating Prosecution Burden To Enumerated Elements

See FORECITE F 400.4 Inst 1.

F 570.4 Inst 2 Voluntary Manslaughter: Modification Of Burden Shifting Language

*Replace CC 570, paragraph 1, with the following:

To prove the malice element of the murder [allegation] [charge] the prosecution must prove beyond a reasonable doubt that the defendant did not kill because of a sudden quarrel or in the heat of passion.

*Replace paragraph 2, sentence 1, and modify Elements, as follows [added language is underlined; deleted language is stricken]:

To meet this burden the prosecution must prove at least one of the following beyond a reasonable doubt:

1. The defendant was not provoked;

2. As a result of the provocation, the defendant did not acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment;

AND OR

3. The provocation to which defendant responded would not have caused a person of average disposition, in the same situation and knowing the same facts as the defendant, to act rashly and without due deliberation, that is, from passion rather than from judgment.

Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

*Modify paragraph 4, sentence 1, as follows [added language is underlined; deleted language is stricken]:

In order for the prosecution to disprove heat of passion to reduce a and prove the defendant guilty of murder to rather than voluntary manslaughter, the prosecution must prove beyond a reasonable doubt that the defendant must have did not acted under the direct and immediate influence of provocation as I have defined it.

*Modify paragraph 5, sentence 3 and 4, as follows follows [added language is underlined; deleted language is stricken]:

You must decide, if you can, whether the defendant was unprovoked and or whether the provocation was insufficient. In deciding attempting to decide whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts as the defendant, would have reacted from passion rather than from judgment.

*Modify paragraph 6 as follows [added language is underlined; deleted language is stricken]:

[If enough time passed between the provocation and the killing for a person of average disposition, the same situation and knowing the same facts as the defendant, to “cool off” and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.]

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]

The CALCRIM Deficiency: Burden Shifting – Except for the final paragraph, CALCRIM 570 uses burden shifting language and sentence structure which erroneously implies that heat of passion and provocation must be established or proven to “reduce” the killing to voluntary manslaughter. (See Mullaney v. Wilbur (1975) 421 US 684, 704 [44 LEd2d 508, 95 SCt 1881] [when a factual circumstance negates an element of the crime, as imperfect self-defense negates malice, the federal constitution’s due process guarantee requires the prosecution to bear the burden of proving the absence of that circumstance beyond a reasonable doubt]; see also Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; People v. Rios (2000) 23 CA4th 450, 461; Walker v. Endell (9th Cir. 1988) 850 F2d 470, 472.)

See also FORECITE F 570.4 Inst 2.

Incorporation Of “Same Situation” Language – In Element 3 and paragraph 6 CALCRIM refers to a person of “average disposition” without the added admonition to consider that the “average” person be in the “same circumstances” and know the “same facts” as the defendant. On the other hand, this language is included in the final paragraph of CC 570. To avoid misleading or confusing the jurors, the same situation language from the final paragraph should be added to Element 3 and paragraph 6 per the proposed modifications above. (See, e.g., Francis v. Franklin (1985) 471 US 307 [reviewing court cannot determine which of two conflicting instructions the juror followed]; see also FORECITE F 417.5 Inst 2 [elemental definition should be incorporated into the enumerated elements].)

No Reference To “The People” – The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]

Use Of The Term “Defendant” – The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.

WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities, and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added, including, but not limited to, those in FORECITE CG 13.

F 570.5 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense: Elements And Definitions

F 570.5 Inst 1 Heat Of Passion: Applicability To Aider And Abettor

(See FORECITE F 401.6 Inst 5.)

F 750.5 Inst 2 (a-f) Heat Of Passion: Prior Threats Or Assaults; Battered Person Syndrome

Alternative a:

One who has (a) received threats against her life or person, or (b) has suffered prior acts of violence from decedent, or (c) is aware of prior act of violence by decedent against others, is justified in acting more quickly and taking harsher measures for her own protection in the event of assault, either actual or threatened, than would be a person who had not received such threats, acts of violence or knew of acts of violence by the decedent against others.

If in this case you believe from the evidence that JOHN DOE (a) previously attacked JANE DOE, or (b) that JANE DOE was aware of previous acts of violence by JOHN DOE against others, and that JANE DOE as a result thereof had reasonable cause to fear greater peril from an altercation with JOHN DOE than she otherwise should have, you are to take such factors and circumstances into your consideration in determining whether JANE DOE acted in a manner in which a reasonable person would act in protecting her own life or bodily safety.

Therefore, in judging JANE DOE’s actions, you should attempt to place yourself, as a reasonable person, in her position at the time of the incident and consider the circumstances existing at the time as well as those circumstances known to her which may have occurred substantially before the incident.

[Points and Authorities: People v. Bush (1978) 84 CA3d 294, 303; People v. Pena (8194) 151 CA3d 462; State v. Allery (1984) 101 Wash.2d 591, 594, fn. 1.]

Alternative b:

In judging JANE DOE’s actions, you should attempt to place yourself in her position at the time of the incident. You should therefore consider her past and present knowledge, her beliefs, the relative size and strength of the participants, JOHN DOE’s words and actions prior to the stabbing, the history of their relationship, and all other factors bearing on the reasonableness of her actions and her apprehensions at the time as they appeared to her.

[Points and Authorities: People v. Bush (1978) 84 CA3d 294, 303; People v. Pena (1984) 151 CA3d 462; State v. Allery (1984) 101 Wash.2d 591, 594, fn. 1.]

Alternative c:

Imminent danger, as used in these instructions, means that the danger had existed at the very time the fatal wound was inflicted. In other words, the danger must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent danger is one that, from appearances, must be instantly dealt with. In determining whether a victim presents an imminent danger, the defendant is entitled to consider all of the circumstances, including the victim’s prior assaults on and threats to the defendant.

[Points and Authorities: People v.Aris (1989) 215 CA3d 1178.]

Alternative d:

Evidence of assaultive, aggressive, or violent acts committed by JOHN DOE upon JANE DOE may be considered by you for two purposes:

(1) To prove that JOHN DOE had an assaultive, aggressive, or violent character and that he acted in conformity with such character on October 24, 1989;

(2) As relevant to JANE DOE’s honest and reasonable belief in the necessity to defend herself against death or great bodily injury at the hands of JOHN DOE.

[Points and Authorities: Evidence Code section 1103(a); People v. Thomas (1969) 269 CA2d 327; People v. Rowland (1968) 262 CA2d 790.]

Alternative e:

The burden is on the state to prove beyond a reasonable doubt that JANE DOE did not act in self-defense. You must be satisfied beyond a reasonable doubt that she was not acting in self-defense before you may convict her. If, from all the circumstances of the case, you have a reasonable doubt whether JANE DOE was acting in self-defense, you must give her the benefit of the doubt and find her not guilty.

[Points and Authorities: People v. Banks (1977) 67 CA3d 379; People v. Sears (1970) 2 C3d 180.]

Alternative f:

Evidence of the character trait for violence of JOHN DOE in the form of the opinion of people who knew him may be considered by you relevant to the issue of whether JOHN DOE was acting in conformity with his character trait for violence on ___________ <insert date>.

[Points and Authorities: People v. Thomas (1969) 269 CA2d 327; People v. Rowland (1968) 262 CA2d 790.]

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Relevance Of Prior Threats Or Assaults; Battered Person Syndrome—PC 192 must be read together with PC 188, which implies malice “when no considerable provocation appears.” California Supreme Court cases have long and continuously held that whether the provocation is considerable enough to negate malice must be judged objectively. (E.g., People v. Wickersham (1992) 32 C3d 307, 326; People v. Logan (1917) 175 C 45, 49; People v. Valentine (1946) 28 C2d 121, 136-44 [reaffirming the objective standard after a thorough review of PC 192 and its history]; see also People v. Steele (2002) 27 C4th 1230, 1251-55.) However, “although the ultimate test of reasonableness is objective, in determining [what] a reasonable person in defendant’s position would have [done], the jury must consider all of the relevant circumstances in which defendant found [himself].” (People v. Humphrey (1996) 13 C4th 1073, 1083.) In other words, the experiences of the individual defendant should be considered by the jurors. (Ibid.)

Hence, battered woman syndrome evidence should be considered by the jury to determine “whether the defendant had reasonable grounds for an honest belief that she was in imminent danger when considering the issue of self-defense.” (State v. Koss (1990) 551 N.E.2nd 970, 973-74; see also State v. Kelly (N.J. Supreme Ct. 1984) 478 A.2d 364, 375-78; State v. Leidholm (N.D. 1983) 334 NW3d 811; State v. Hennum (Minn. 1989) 441 NW2d 793.)

Moreover, the California Supreme Court has recognized the relevance of “subjective state of mind evidence” to proof of an objective standard. In People v. Ochoa (1993) 6 C4th 1199, the court first noted that the offense of gross vehicular manslaughter while intoxicated requires proof under an ” ‘objective’ ” standard: “‘whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citations].’ ” (Id. at 1204.) However, in satisfying this objective test, the prosecutor is entitled to introduce evidence of the defendant’s “subjective state of mind ….” (Id. at 1205.) This rule is justified on the theory that subjective knowledge is relevant to the objective question of “whether a reasonable person in defendant’s position would have been aware of the risks ….” (Ibid., emphasis in original.)

In light of this reasoning, it necessarily follows that evidence of battered woman syndrome is admissible to prove the objective reasonableness of the defendant’s conduct. To the extent that the subjective knowledge of the defendant is relevant to a determination under a reasonable person standard, Ochoa compels this result.