Lead Opinion
Opinion
In the companion case of People v. Lasko (2000)
I
On October 25, 1994, defendant George John Blakeley and his friend, David Fraire, spent the early afternoon drinking brandy in a park in Vallejo, California. They then went to defendant’s home. Also there were Steven Blakeley (defendant’s brother), Tony Santiago, and Lionel Vallo (a friend of Santiago’s). Fraire passed around bottles of beer, and Vallo bought $20 worth of methamphetamine from defendant.
Vallo, who had been drinking, asked about the quality of the methamphetamine, saying that some methamphetamine he had recently bought from Santiago had been “bunk.” Santiago told Vallo, “fuck you,” and Vallo replied, “fuck you.” Defendant said to both Santiago and Vallo, “shut the fuck up”; Vallo told defendant, “you shut the fuck up.”
Defendant told Vallo to leave the house. Vallo, who was six feet tall and weighed 205 pounds, swung a beer bottle at defendant, who was five feet five inches tall and weighed 140 pounds, but missed. Defendant then hit Vallo in the head with an unopened bottle of beer. The bottle shattered, cutting Vallo’s cheek. After throwing a beer bottle at defendant, but missing him, Vallo charged at defendant. Defendant drew a large knife from a sheath on his belt and a struggle ensued. Santiago pulled Vallo off defendant. Vallo was bleeding heavily from a stab wound to the chest. Fraire told defendant “let’s go,” and defendant, weeping, drove Fraire home.
After telling his friend Vallo, “You dying, ain’t nothing I could do, you got it to the heart,” Santiago asked Steven Blakeley (who had been out of the room during the fight) to “call 911” and then left. The police and paramedics soon arrived but were unable to save Vallo, who died shortly thereafter from a single stab wound to the heart. Defendant fled, eventually turning up at his uncle’s home in San Bernardino. His uncle called the police.
At trial, eyewitness accounts of the stabbing differed. Vallo’s friend Santiago testified defendant had made a motion “like an uppercut” with the knife as Vallo charged him, and Vallo almost immediately went limp, falling on top of defendant. Fraire, defendant’s friend, testified that after Vallo attacked defendant the two struggled for “half a minute or so”; he did not see defendant stab Vallo. Defendant, who testified on his own behalf, claimed he drew his knife to defend himself when Vallo charged him, that the two of them fought and went down on the floor, and that Vallo apparently impaled himself on the knife during the struggle. He did not realize Vallo had been stabbed until after the fight was over.
The trial court instructed the jury on the charged crime of murder as well as the lesser included offenses of voluntary and involuntary manslaughter. As to voluntary manslaughter, the trial court explained: “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 in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.” (Italics added.) The court refused to give defendant’s requested instruction that a killing is involuntary manslaughter when the killer, acting in an unreasonable but good faith belief in the necessity of self-defense, unintentionally causes the victim’s death.
The Court of Appeal affirmed the conviction. The court reasoned: “[Unreasonable self-defense] has no special bearing on the crime of involuntary manslaughter. It neither allows a conviction of this crime, nor prevents one.” Because “[t]here was no instruction . . . that prevented the jury from considering involuntary manslaughter,” the Court of Appeal said, the trial court did not have to give defendant’s requested instruction. We granted review.
n
As we did in the companion case of People v. Lasko, supra,
Manslaughter is “the unlawful killing of a human being without malice.” (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter 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’—the unreasonable but good faith belief in having to act in self-defense (see In re Christian S. (1994)
A person who intentionally kills in unreasonable self-defense lacks malice and is guilty only of voluntary manslaughter, not murder. (People v. Barton, supra,
We have in the past said that in these circumstances the killer is not guilty of murder: “[I]mplied malice is shown when ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.’ ... A defendant who acts with the requisite actual belief in the necessity for self-defense does not act with the base motive required for implied malice, i.e., with ‘an abandoned and malignant heart.’ [Citation.] A contrary conclusion, 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. There is no authority to support such an incongruous rule.” (In re Christian S., supra,
Defendant here asserts that one who unintentionally and unlawfully kills in unreasonable self-defense is guilty only of involuntary manslaughter. We have never before decided whether in these circumstances a defendant is guilty of voluntary or involuntary manslaughter. As we shall explain, we conclude that when a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary, manslaughter.
Defendant’s claim that an unintentional killing in unreasonable self-defense is involuntary manslaughter is based on the assumption that intent to kill is a necessary element of voluntary manslaughter. As he points out, we have said so in a number of cases. (See, e.g., People v. Hawkins (1995)
In the companion case of People v. Lasko, supra,
Defendant invokes the well-established principle of statutory construction that when the Legislature amends a statute without changing those portions of the statute that have previously been construed by the courts, the Legislature is presumed to have known of and to have acquiesced in the previous judicial construction. (People v. Escobar (1992)
We disagree. All of the five amendments to section 192 affect only subdivision (c) of that section, which defines vehicular manslaughter. (See Stats. 1994, ch. 71, § 2; Stats. 1986, ch. 1106, § 3, p. 3881; Stats. 1984, ch. 742, § 1, p. 2703; Stats. 1983, ch. 937, § 1, p. 3387; Stats. 1945, ch. 1006, § 1, p. 1942.) The subdivisions of section 192 that define voluntary and involuntary manslaughter have remained unchanged since that section’s enactment in 1872. We do not view the Legislature’s amendments to subdivision (c), which defines vehicular manslaughter, as persuasive evidence that the Legislature intended to acquiesce in judicial decisions construing subdivision (a), which defines voluntary manslaughter. (See People v. Morante (1999)
Defendant also relies on two decisions by the Court of Appeal, People v. Glenn (1991)
Similarly, in Welch the defendant denied intending to kill the victim, who died of gunshot wounds. The Court of Appeal reversed the defendant’s conviction for voluntary manslaughter because of the trial court’s failure to instruct the jury on the lesser included offense of involuntary manslaughter. The Court of Appeal explained: “The basic distinction in California law between voluntary and involuntary manslaughter is that voluntary manslaughter requires an intent to kill whereas involuntary manslaughter does not. . . . [f] In the
In neither People v. Glenn, supra,
In his dissenting opinion in this case, Justice Mosk contends that a defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter. We have no quarrel with this view. We conclude only that a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter.
in
Does this holding apply retroactively to defendant’s case? At oral argument, the Attorney General acknowledged that retroactive application would be unconstitutional. He is right, as we explain.
“A statute '“which makes more burdensome the punishment for a crime, after its commission,” ’ violates article I, section 9, clause 3, of the United States Constitution as an ex post facto determination of criminal liability [citations], as well as its California counterpart, article I, section 9 of the state Constitution [citation]. Correspondingly, an unforseeable judicial enlargement of a criminal statute, applied retroactively, operates in the same manner as an ex post facto law.” (People v. Davis (1994)
Here, when defendant killed Vallo this court had not yet addressed the issue of whether an unintentional killing in unreasonable self-defense is voluntary or involuntary manslaughter. But three decisions by the Courts of Appeal in this state held that such a killing was only involuntary manslaughter (People v. Ceja, supra, 26 Cal.App,4th 78; People v. Glenn, supra,
The Attorney General insists, however, that the trial court did not have to grant defendant’s request to instruct the jury that an unintentional killing in unreasonable self-defense was involuntary manslaughter. He points out that although the decisions of the Courts of Appeal, which defendant cited and which we mentioned in the preceding paragraph, hold that an unintentional killing in unreasonable self-defense may constitute involuntary manslaughter, none of them expressly holds that the trial court must, upon request, tailor its instruction on involuntary manslaughter to include mention of an unintentional killing in unreasonable self-defense. We disagree. The need for such a modification is implicit in the conclusion of the Court of Appeal decisions in question that such a killing is involuntary manslaughter. (See People v. Earp (1999)
By contrast, the standard instruction on involuntary manslaughter the trial court gave here did not explain to the jury that a defendant who commits an unintentional killing in unreasonable self-defense is guilty of involuntary manslaughter. As we mentioned earlier, that instruction stated a killing is involuntary manslaughter if committed during “the commission of . . . the offense of [bjrandishing a [wjeapon; or . . . [i]n the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.” An unintentional killing in unreasonable self-defense, committed in the midst of a fight, does not fall within this definition. We therefore conclude the trial court erred by failing to instruct the jury that an unintentional killing in unreasonable self-defense is involuntary manslaughter.
IV
Did defendant suffer prejudice from the trial court’s failure to instruct the jury that an unintentional killing in unreasonable self-defense is involuntary manslaughter? A majority of this court recently held that when, as in this case, a trial court violates state law by failing to properly instruct the jury on a lesser included offense, the following test applies: “[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956)
Here, although the trial court did not instruct the jury that an unintentional killing in unreasonable self-defense is involuntary manslaughter, it did instruct on these two theories of involuntary manslaughter, neither of which requires an intent to kill: that an unlawful killing is involuntary
In their closing arguments to the jury, both the prosecutor and defense counsel told the jury that an unintentional killing in unreasonable self-defense was involuntary, not voluntary, manslaughter. The prosecutor said: “Then [the trial court] described to you a middle ground, which is sometimes called imperfect self-defense, but as presented to you was honest and reasonable, reasonable, self-defense. This is a situation where the killer thinks he’s in danger of death or great bodily injury, but he’s unreasonable in that. And that leads to the manslaughter alternative which is either voluntary if it’s an intentional killing or involuntary if it’s not.” (Italics added.) Defense counsel appeared to make the same point: “Did [defendant] have an intent to kill? That’s the difference between voluntary and involuntary manslaughter, and the answer there is you have to look at the timing of this and the intoxication of [defendant]. And I submit to you that there was no intent other than the intent to save his life.” (Italics added.)
People v. Watson, supra,
Disposition
The judgment of the Court of Appeal is affirmed.
George, C. I., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
Notes
Defendant’s requested instruction read: “Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of Penal Code § 192(b). [10 In order to prove such crime, each of the following elements must be proved: [IQ 1. A human being was killed; and [IQ 2. The killing was unlawful. [10 A killing is unlawful within the meaning of this instruction when the accused actually but unreasonably believes in the necessity to defend himself and, having such mental state, unintentionally causes the death of a human being.”
The court instructed the jury: “Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192(b). [fl] In order to prove such crime, each of the following elements must be proved: H 1. A human being was killed, and flO 2. The killing was unlawful. [H A killing is unlawful within the meaning of this instruction if it occurred: [H] 1. During the commission of a misdemeanor which is inherently dangerous to human life, namely, the offense of [b]randishing a [w]eapon; or HD 2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.”
All further statutory references are to the Penal Code.
We express no view as to whether the trial court would have been required, in the absence of a request from defendant, to instruct the jury that an unintentional killing in unreasonable self-defense is involuntary manslaughter.
As previously explained, in the companion case of People v. Lasko, supra,
Dissenting Opinion
I dissent.
I address an “important” question (People v. Breverman (1998)
A crime generally comprises elements of mental state and also conduct or consequences or both.
Murder is defined by statute as the “unlawful killing of a human being . . . with malice aforethought.” (Pen. Code, § 187, subd. (a).) A killing is unlawful when it is not justified (see id., §§ 196-198.5, 199), as by self-defense (id., §§ 197-198.5), or excused (see id., §§ 195, 199), as by accident or misfortune (id., § 195). (People v.
Manslaughter is defined by statute as the “unlawful killing of a human being without malice [aforethought].” (Pen. Code, § 192.) It is “[v]oluntary” when it is perpetrated “upon a sudden quarrel or heat of passion” (id., § 192, subd. (a)) following provocation adequate to arouse a reasonable person (e.g., People v. Valentine (1946)
Thus, murder includes among its elements malice aforethought, which is the requisite mental state.
By contrast, in both its voluntary and involuntary forms, manslaughter excludes malice aforethought.
For voluntary manslaughter, however, the requisite mental state is not clear from its definition. But it becomes so when voluntary manslaughter is considered in conjunction with murder: It is the state of mind that amounts in fact to malice aforethought, but is deemed in law not to because of provocation. (See People v. Doyell (1874)
It follows that provocation may be treated as an “element” of voluntary manslaughter, but only—against my former view (see People v. Lee, supra,
That nonprovocation may thus be treated as an “element” of murder does not make it one in any proper sense. An element is a legal requirement of a crime. Nonprovocation is not such. Rather, it is a fact that may or may be not raised by the particular evidence admitted at any individual trial. Provocation does not quite function as an affirmative defense to murder, in the sense of constituting a fact that is separate and independent from its elements. But it functions not dissimilarly, albeit with the prosecution bearing the burden of disproof (People v. Bloyd (1987)
To my mind, the so-called doctrine of imperfect self-defense—which, as we held in Christian S. and People v. Flannel (1979)
Unlike provocation, the doctrine of imperfect self-defense does not find its origin in the statutory definitions of murder and voluntary manslaughter. The fact is plain, and calls for no elaboration. Hence, there is no warrant in statute for any assertion that, for voluntary manslaughter, the requisite mental state is that which amounts in fact to malice aforethought, but is deemed in law not to because of imperfect self-defense.
Also unlike provocation, the doctrine of imperfect self-defense does not allow the
By its terms, the doctrine of imperfect self-defense, as we held in Christian S. and Flannel, prohibits an actor’s “convict[ion] of’ any “crime greater than voluntary manslaughter.” (In re Christian S., supra, 1 Cal.4th at p. 771, italics added; see People v. Flannel, supra, 25 Cal.3d at pp. 672, 674-680 (lead opn. of Tobriner, J.); id. at pp. 686-687 (cone. opn. of Richardson, J.).) It does not, however, mandate his conviction of voluntary manslaughter itself. The reason is easy to discern.
If the requisite mental state for voluntary manslaughter is a state of mind that amounts in fact to malice aforethought, an actual, but unreasonable, belief in imminent danger of death or great bodily injury may prove to be preclusive.
For an actor who entertains an actual, but unreasonable, belief in imminent danger of death or great bodily injury may happen not to harbor malice aforethought express in a deliberate and wrongful intent to kill. Deliberation or wrongfulness or both may be lacking. To quote Flannel, which is categorical in this regard: “[Mjalice [aforethought],” including, of course, express malice aforethought, “cannot coexist with such [a] . . . belief . . . .” (People v. Flannel, supra, 25 Cal.3d at p. 675 (lead opn. of Tobriner, J.); see id. at pp. 686-687 (cone. opn. of Richardson, J.).) To quote Christian S., which is similarly categorical: A person “who acts with” an “actual belief in the necessity for self-defense” does not act with the required wrongful intent to kill because he “necessarily believes he is acting lawfully.” (In re Christian S., supra, 7 Cal.4th at pp. 778, 780, fn. 4.) That an actor who entertains an actual, but unreasonable, belief in imminent danger of death or great bodily injury may happen to possess a bare intent to kill is, of course, not enough. Intent to kill simpliciter does not amount to express malice aforethought, since it is neither deliberate nor wrongful. It scarcely needs mention that intent to kill is not morally culpable in and of itself. In self-defense, it is at least morally neutral. In defense of others, it is perhaps even morally praiseworthy.
Similarly, an actor who entertains an actual, but unreasonable, belief in imminent danger of death or great bodily injury may happen not to harbor malice aforethought implied in a wanton disregard for human life. Wantonness, at least, may be lacking. To quote Flannel’s categorical statement a second time: “[Mjalice [aforethought],” including, of course, implied malice aforethought, “cannot coexist with such [a] . . . belief . . . .” (People v. Flannel, supra, 25 Cal.3d at p. 675 (lead opn. of Tobriner, J.); see id. at pp. 686-687 (cone. opn. of Richardson, J.).) To quote Christian S., which is categorical as well: A person “who acts with” an “actual belief in the necessity for self-defense does not act with the . . . required” wantonness. (In re Christian S., supra,
That an actual, but unreasonable, belief in imminent danger of death or great bodily injury may prove to be preclusive with respect to the mental state required for voluntary manslaughter, namely, a state of mind that amounts in fact to malice aforethought, leads to no untenable result. Surely, it does not grant any immunity to any actor who commits an unlawful killing. For practically by definition, an actor who entertains such a belief acts “without due caution and circumspection” (Pen. Code, § 192, subd. (b)). Hence, if he is guilty of nothing else, he must be guilty of involuntary manslaughter.
One might perhaps argue that an actor who entertains an actual, but unreasonable, belief in imminent danger of death or
In the case at bar, the superior court erred by refusing to instruct the jury at appellant’s request to the effect that the doctrine of imperfect self-defense allowed a verdict finding him guilty of involuntary manslaughter. It did so reversibly. Reversal is required under People v. Watson (1956)
Appellant’s petition for a rehearing was denied July 26, 2000.
In subdivision (a) of section 189.5 of the Penal Code, whose predecessor was section 1105 of the same code as originally enacted in 1872, it is stated that, “[u]pon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances . . . that justify or excuse it. . . devolves upon the defendant, unless the proof on the part of the prosecution tends to show . . . that the defendant was justifiable or excusable.” Contrary to appearances (People v. Frye, supra,
The majority state that they “have no quarrel with” my “view” that an actor who entertains an actual, but unreasonable, belief in imminent danger of death or great bodily injury may be guilty of involuntary manslaughter. (Maj. opn., ante, at p. 91.) They go on to state that such an actor, however, is “guilty of voluntary manslaughter” when he acts “with the intent to kill or with conscious disregard for life.” {Ibid., italics in original.) For my part, I have no quarrel with their view. So long as the actor is not precluded by his belief from possessing a state of mind that amounts in fact to malice aforethought, and does indeed possess a state of mind of that sort. I understand the majority to refer to implied malice aforethought when they use the phrase “conscious disregard for life.” And I understand them to refer to express malice aforethought when they use the phrase “intent to kill.” As I have explained in the text, bare intent to kill is not enough for express malice aforethought, since it is neither deliberate nor wrongful.