SERIES 500 HOMICIDE
F 572 NOTES
TABLE OF CONTENTS
F 572 Note 1 Voluntary Manslaughter: Murder Not Charged—CALCRIM Cross References And Research Notes
F 572 Note 2 CC 572 Is Applicable When Murder Charge Has Been Reduced To Voluntary Manslaughter
F 572 Note 3 Mercy Killing As Voluntary Manslaughter (PC 192)
F 572 Note 4 Voluntary Manslaughter: Sua Sponte Instruction On Legal Definition Of Death (PC 192)
F 572 Note 5 Voluntary Manslaughter: Definition Of Viable Fetus (PC 192)
F 572 Note 6 Saille’s Abolition Of Non-statutory Manslaughter Is Not A “New Rule of Law” (PC 192)
F 572 Note 7 Involuntary Manslaughter Not LIO Of Voluntary Manslaughter (PC 192)
F 572 Note 8 Shooting At Person Does Not Necessarily Establish Intent To Kill (PC 192)
F 572 Note 9 Due Process Challenge To Law Of Homicide In California Based On Confusion And Ambiguity
F 572 Note 10 Intent To Kill Is An Element Of Attempted Voluntary Manslaughter
F 572 Note 11 Availability Of Intoxication/Mental Defect To Reduce Express Malice Murder To Voluntary Manslaughter (PC 192)
Return to Series 500 Table of Contents.
F 572 Note 1 Voluntary Manslaughter: Murder Not Charged—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 506B 511 [Justifiable and Excusable Homicides]
CALCRIM 3470B 3477 [Defense Instructions: Defense of Self, Another, Property]
CALCRIM 571 [Voluntary Manslaughter: Imperfect Self-Defense— Lesser Included Offense]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 572 Note 2 CC 572 Is Applicable When Murder Charge Has Been Reduced To Voluntary Manslaughter
The title of CC 572 refers to murder not being “charged.” However, the instruction also applies when the judge has reduced the charge from murder to voluntary manslaughter in response to a PC 995 or PC 1118.1 motion.
F 572 Note 3 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. (1983) 34 C3d 429, 436; People v. Matlock (1959) 51 C2d 682, 694; People v. Cleaves (1991) 229 CA3d 367, 375-76.)
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 (1958) 50 C2d 321, 324 (passion is any “violent intense, high-wrought or enthusiastic emotion” ) and the reasoning of People v. Wu DEPUBLISHED (1991) 235 CA3d 614, 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.)
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.]
CALJIC NOTE: See FORECITE F 8.40 n3.
F 572 Note 4 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 (1983) 147 CA3d 1006, 1013 [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-534for additional briefing on this issue.]
[Research Note: See FORECITE BIBLIO 8.40, et al.]
CALJIC NOTE: See FORECITE F 8.40 n4.
F 572 Note 5 Voluntary Manslaughter: Definition Of Viable Fetus (PC 192)
See FORECITE F 8.10a.
[Research Note: See FORECITE BIBLIO 8.40, et al.]
CALJIC NOTE: See FORECITE F 8.40 n5.
F 572 Note 6 Saille’s Abolition Of Non-statutory Manslaughter Is Not A “New Rule of Law” (PC 192)
In People v. Lopez (1992) 11 CA4th 1115, 1121-22, the court rejected the argument that People v. Saille (1992) 54 C3d 1103, 1120 announced a new rule which should not be applied retroactively to cases tried before Saille.
[Research Note: See FORECITE BIBLIO 8.40, et al.]
CALJIC NOTE: See FORECITE F 8.40 n6.
F 572 Note 7 Involuntary Manslaughter Not LIO Of Voluntary Manslaughter (PC 192)
In People v. Orr (1994) 22 CA4th 780, 782-85, 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.]
CALJIC NOTE: See FORECITE F 8.40 n8.
F 572 Note 8 Shooting At Person Does Not Necessarily Establish Intent To Kill (PC 192)
It should be noted that even a shooting at close range does not necessarily demonstrate an intent to kill. (See People v. Ratliff (1986) 41 C3d 675, 695; see also Braxton v. U.S. (1991) 500 US 344 [114 LEd2d 385, 392-93; 111 SCt 1854] [shooting “at a marshal” establishes “a substantial step toward [attempted murder], and perhaps the necessary intent.” [Original emphasis.]) A shooting at close range, therefore, could permit instruction upon the lesser included offense of involuntary manslaughter and/or the lesser related offense of assault with a deadly weapon. (See People v. Woods (1991) 226 CA3d 1037, 1051-52.)
[Research Note: See FORECITE BIBLIO 8.40, et al.]
CALJIC NOTE: See FORECITE F 8.40 n2.
F 572 Note 9 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. (1926) 269 US 385 [70 LEd 322; 46 SCt 126].) The latest cases from the California Supreme Court: People v. Blakeley (2000) 23 C4th 82, People v. Lasko (2000) 23 C4th 101 and People v. Rios (2000) 23 C4th 450 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: A Several alternative conclusions might be drawn form 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 requiredC 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. (1926) 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) (1988) 46 C3d 381, 390; see also City of Chicago v. Morales (1999) 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 (1983) 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 (1939) 306 US 451, 454-55 [83 LEd 888; 59 SCt 618]; Grayned v. City of Rockford (1972) 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.
CALJIC NOTE: See FORECITE F 8.40 n16.
F 572 Note 10 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.)
CALJIC NOTE: See FORECITE F 8.40 n17.
F 572 Note 11 Availability Of Intoxication/Mental Defect To Reduce Express Malice Murder To Voluntary Manslaughter (PC 192)
See FORECITE F 8.40 n1.
