SERIES 500 HOMICIDE
F 570 NOTES
TABLE OF CONTENTS
F 570 Note 1 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense—CALCRIM Cross References And Research Notes
F 570 Note 2 Cultural Background Relevant As To Heat Of Passion (PC 192(a))
F 570 Note 3 Heat Of Passion: Evidence Necessary—Lapse Of Time
F 570 Note 4 Heat Of Passion: Defense Theory Of Accident Does Not Preclude Instruction On Provocation
F 570 Note 5 Heat Of Passion: Provocation From A Party Other Than The Victim
F 570 Note 6 Improper To Instruct On “Homicidal Reaction”
F 550 Note 7 Duty To Instruct On Heat Of Passion When Defendant Has Not Testified
F 570 Note 8 Failure To Instruct On Heat Of Passion In A Voluntary Manslaughter Case Is Not Prejudicial
F 570 Note 9 Voluntary Manslaughter: Battered Woman/Child Syndrome (PC 192)
F 570 Note 10 Provocation/Heat Of Passion Can Reduce Unintentional Implied Malice Murder To Manslaughter
F 570 Note 11 No Right To Voluntary Manslaughter Instruction When Defendant Denies Killing Under Oath
F 570 Note 12 Voluntary Manslaughter: Where Only Voluntary Manslaughter Is Charged Prosecution Need Not Disprove Heat Of Passion Or Imperfect Self-Defense
F 570 Note 13 Retroactivity: Blakeley And Lasko
F 570 Note 14 Heat Of Passion: Not Available When Defendant Intentionally Caused The Provoking Conduct By The Victim
F 570 Note 15 Provocation May Be Established By A Long Period Of Minor Events
F 570 Note 16 Passion Aroused May Be Fear And Panic
Return to Series 500 Table of Contents.
F 570 Note 1 Voluntary Manslaughter: Heat of Passion—Lesser Included Offense—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 511 [Excusable Homicide: Accident In The Heat Of Passion]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 570 Note 2 Cultural Background Relevant As To Heat Of Passion (PC 192(a))
(See FORECITE F 4.031 n1.)
RESEARCH NOTE: Cultural Defense of False Stereotype? What Happens When Latina Defendants Collide With the Federal Sentencing Guidelines, K.L. Holmquist, 12 Berkely Women’s L.J. 45-72, 1997.
CALJIC NOTE: See FORECITE F 8.42 n1.
F 570 Note 3 Heat Of Passion: Evidence Necessary—Lapse Of Time
In order to obtain an instruction on heat of passion, the defendant must present evidence as to the lapse of time between the provocative act and the killing. (People v. Dixon (1995) 32 CA4th 1547, 1550-58.
CALJIC NOTE: See FORECITE F 8.42 n4.
F 570 Note 4 Heat Of Passion: Defense Theory Of Accident Does Not Preclude Instruction On Provocation
It is well settled that the defendant has a right to instruction on inconsistent defenses. (See FORECITE PG V(K).) Hence, a defense theory of accident “does not free the court from the duty of instructing on the partial defense of provocation….” (People v. Middleton (1997) 52 CA4th 19, 34; see also People v. Wickersham (1982) 32 C3d 307, 328 [“the jury was entitled to reject that portion of appellant’s testimony which sought to explain the shooting as an accident and still find that appellant had not acted with malice”]; People v. Villanueva (2008) 169 CA4th 41, 54-55 [right to instruction on self-defense despite defendant’s assertion of accident].)
CALJIC NOTE: See FORECITE F 8.42 n5.
F 570 Note 5 Heat Of Passion: Provocation From A Party Other Than The Victim
The comment to CJ 8.42 states that provocation can only serve to reduce murder to manslaughter when the victim actually initiated the provocation in reliance upon People v. Spurlin (1984) 156 CA3d 119, 126, People v. Superior Court (Henderson) (1986) 178 CA3d 516, 524; In re Thomas C. (1986) 183 CA3d 786, 798. However, subsequent cases have made it clear that the defendant’s state of mind, not the conduct of the victim, determines whether a particular defense or mitigation may be applicable. (See People v. Lee (1999) 20 C4th 47, 59 [the provocation “must be caused by the victim . . . or be conduct reasonably believed by the defendant to have been engaged in by the victim”]; see also People v. Brooks (1986) 185 CA3d 687, 694 [defendant’s belief, even if mistaken, that victim had killed defendant’s brother is adequate provocation]; cf. People v. Humphrey (1996) 13 C4th 1073; People v. Minifie (1996) 13 C4th 1055.) [See Brief Bank # B-714 for pre-Lee briefing on this issue.]
CALJIC NOTE: See FORECITE F 8.42 n6.
F 570 Note 6 Improper To Instruct On “Homicidal Reaction”
In People v. Lee (1997) 54 CA4th 559, 562 the court gave the following instruction at the request of the prosecution:
“The concept of ‘sudden quarrel or heat of passion’ allows a defendant to reduce a killing from murder to manslaughter only in those situations where the provocation would trigger a homicidal reaction in the mind of an ordinarily reasonable person under the same facts and circumstances. [Citations.]”
The Court of Appeal held this to be reversible error because the jury could have construed the term “homicidal reaction” to mean “murderous reaction” which would necessarily have precluded a finding of manslaughter due to the presence of malice.
CALJIC NOTE: See FORECITE F 8.42 n7.
F 550 Note 7 Duty To Instruct On Heat Of Passion When Defendant Has Not Testified
In People v. McKelvey (1987) 194 CA3d 694, 701-07, the lead opinion of Kline, P.J. declared that an actual, but unreasonable belief in the need for self-defense negated the malice required for a conviction of mayhem (PC 203), mitigating the crime to assault or battery. The opinion concluded that a Flannel-type instruction (People v. Flannel (1979) 25 C3d 668) should be given sua sponte in mayhem cases where there was more than minimal evidence of self-defense. (People v. Castillo (1987) 193 CA3d 119, 126.) Hence, even if the defendant did not testify, the trial court has a sua sponte duty to give heat-of-passion instruction if there is substantial evidence in support of such a theory notwithstanding the absence of the defendant’s testimony. (See People v. Brooks (1986) 185 CA3d 687, 696.)
CALJIC NOTE: See FORECITE F 8.42 n8.
F 570 Note 8 Failure To Instruct On Heat Of Passion In A Voluntary Manslaughter Case Is Not Prejudicial
Provocation is a matter which usually is raised by a defendant and which functions to mitigate an intentional killing from murder to manslaughter. In a voluntary manslaughter case, the failure to instruct on heat of passion actually adds to the prosecution’s burden by requiring the prosecutor to prove the greater offense of murder, i.e., a wholly unmitigated killing. Hence, the failure to instruct on provocation was not prejudicial error. (People v. Rios (2000) 23 C4th 450, 470.)
CALJIC NOTE: See FORECITE F 8.42 n9.
F 570 Note 9 Voluntary Manslaughter: Battered Woman/Child Syndrome (PC 192)
See FORECITE F 9.35.1.
[Research Note: See FORECITE BIBLIO 8.40, et al.]
CALJIC NOTE: See FORECITE F 8.40 n7.
F 570 Note 10 Provocation/Heat Of Passion Can Reduce Unintentional Implied Malice Murder To Manslaughter
People v. Lasko (2000) 23 C4th 101, 109-110 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. (1994) 7 C4th 768. 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 intend 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 (1973) 10 C3d 553, 558-561; see also Hobbs v. State (1969) 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 (1968) 240 NE2d 815 [251 Ind. 250] [8th 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 [8th 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 (1955) 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 (1971) 17 CA3d 1, 21). Further, the equal protection clause of the 14th Amendment could also be implicated. [See Brief Bank # B-716for 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 [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 (1998) 19 C4th 142, 187-95 (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 6th 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 (1991) 502 US 62, 72 [116 LEd2d 385; 112 SCt 475].)
Retroactivity Note: (See People v. Crowe (2001) 87 CA4th 86, 94-95 [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.)
CALJIC NOTE: See FORECITE F 8.40 n11.
F 570 Note 11 No Right To Voluntary Manslaughter Instruction When Defendant Denies Killing Under Oath
People v. Sinclair (1998) 64 CA4th 1012 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 (1995) 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. (1988) 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 (1987) 483 US 44 [97 LEd2d 37; 107 SCt 2704]) and against self-incrimination (e.g., Griffin v. California (1965) 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].)
CALJIC NOTE: See FORECITE F 8.40 n12.
F 570 Note 12 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 [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].)
CALJIC NOTE: See FORECITE F 8.40 n14.
F 570 Note 13 Retroactivity: Blakeley And Lasko
In People v. Lasko (2000) 23 C4th 101, 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, 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, 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, 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 1603 [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].)
CALJIC NOTE: See FORECITE F 8.40 n15.
F 570 Note 14 Heat Of Passion: Not Available When Defendant Intentionally Caused The Provoking Conduct By The Victim
(See People v. Johnston (2003) 113 CA4th 1299.)
CALJIC NOTE: See FORECITE F 8.40 n18.
F 570 Note 15 Provocation May Be Established By A Long Period Of Minor Events
See People v. Wharton (1991) 53 C3d 522, 569; People v. Berry (1976) 18 C3d 509; People v. Borchers (1958) 50 C2d 321; People v. Le (2007) 158 CA4th 516.
For sample instructions see FORECITE F 8.42 a.
F 570 Note 16 Passion Aroused May Be Fear And Panic
What distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation. (People v. Lee (1999) 20 C4th 47, 59.) Although the provocation that “incites the defendant to homicidal conduct in the heat of passion” must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim (ibid.), it may be physical or verbal (ibid.) and can arise from a series of events over a period of time (People v. Kanawyer (2003) 113 CA4th 1233, 1245). The passion aroused need not be rage or anger, but can be any intense, high-wrought, violent, or enthusiastic emotion other than revenge. (People v. Breverman (1998) 19 C4th 142, 163; People v. Berry (1976) 18 C3d 509, 515.) Fear and panic are such emotions. (See People v. Breverman, supra, 19 C4th at pp. 163-164.)
