People v. Breverman

Aug. S058721. 1998.] [No. PEOPLE, Plaintiff and

THE Respondent, BREVERMAN,

SCOTT Defendant Appellant.

Counsel

Marcia A. for Defendant Morrissey Appellant. General, Williamson,

Daniel E. Lungren, Attorney Chief Assistant George General, Pollack, General, Carol Wendelin Assistant Attorney Attorney Richard, Fuster, T. Hamanaka, William L. Sharon Wooden Pamela C. Jaime General, Maxwell, Plaintiff E. Attorneys Harter and Margaret Deputy and Respondent.

Opinion defendant’s house got men who were BAXTER, J. walking by young Two The in the congregated driveway. of larger youths into a with fight group ended and were they bruises before the fracas sustained cuts and two returned with a at least one of the pair to leave. The next night, allowed of retaliation. Members group friends to exact some sort of group defendant, to batter bat and other implements taunted then used a baseball door. automobile, near his front in the driveway his which was parked door, then in the front shots window through pane Defendant fired several One bullet shots toward the vandals. fleeing came outside and fired further a member of the group. wounded fatally from this second volley instructions The also received with murder. Defendant was self-defense) the lesser “nec- (“reasonable” and on homicide on justifiable manslaughter. voluntary involuntary included” offenses essarily on the entirely theory instructions were voluntary manslaughter premised Flannel 25 Cal.3d (See People “unreasonable” self-defense. (Flannel).) 603 P.2d Cal.Rptr. 1] alia, conviction, trial inter that the murder urging, Defendant his appealed instruct, on a “heat of passion” theory sua failing sponte, court erred by Code, 192(a))1 (a) (section (see subd. Pen. manslaughter § voluntary It agreed. the evidence. The Court Appeal also which was supported (1974) 10 Cal.3d under v. Sedeno further found the error prejudicial because the had (Sedeno), 518 P.2d Cal.Rptr. context, resolved, the omitted the issue in another posed necessarily reversed the conviction. therefore instruction. The Court Appeal First, duty does the sua sponte consider issues: review to two We granted (Sedeno, offenses lesser necessarily to instruct on that finds rational of such an offense 715-716) extend to every theory Second, reversal should standard of appellate what evidence? support instruct, on a lesser to instruct completely, to an erroneous failure apply included offense? a trial law requires conclusions: California reach the following

We now included offenses court, all lesser necessarily to instruct fully sua sponte, are to the Penal Code. statutory references unlabeled 1 All further ruled that in a the evidence. The Court of by correctly supported Appeal to on every murder this includes the instruct obligation support- prosecution, manslaughter, able of the lesser included offense of theory voluntary or theories which have the merely theory strongest evidentiary support, Here, there substantial or on which the defendant has relied. openly to a heat of theory voluntary manslaughter, evidence support the instant trial court should therefore have instructed on this theory. conclude,

However, near-automatic we further the Sedeño standard of for this reversal form of error should be sua abrogated. sponte duty instruct on all lesser included offenses the evidence arises fully suggested by Moreover, from California not a law alone. failure to fulfill this duty structural defect in the but a form mere misdirection of the proceedings, jury, Hence, of trial error committed in the of the case. by virtue presentation Constitution, the California reversal is not warranted unless an examination cause, evidence,” of “the entire discloses that the error including pro- Const., VI, (Cal. duced a art. This test is not “miscarriage justice.” § met unless it the defendant would have appears “reasonably probable” achieved a more favorable result had the error not occurred. (People (Watson).) Watson Because the Court of standard Sedeño we now over- Appeal applied rule, and therefore reversed defendant’s murder conviction without deter- from the mining entire record whether there was a reasonable probability outcome, error affected the the Court of must be re- judgment Appeal’s circumstances, versed. Under the we will remand the cause to the Court of for an evaluation of Appeal under Watson. If the Court of prejudice Appeal standard, concludes the error was harmless it should proceed consider the numerous other claims raised defendant on appeal. Background

Facts and Procedural Defendant was charged by information with murder of Andreas (§ (a).)2 subd. The information also firearm use Suryaatmadja. alleged (§ (a).) enhancement. subd. here,

Insofar as evidence was as follows: pertinent prosecution 17, 1993, (Bill) On the of December Ju and Kim were evening Yoon Hyun in Chatsworth on their As defendant’s walking way they play pool. passed Street, residence at 21747 a larger Hiawatha words were with exchanged alleged generally willfully, unlawfully, 2 The information that defendant “did and with aforethought Suryaatmadja, being.” malice murder Andreas a human and driveway beer in the drinking garage who were young group people beaten, and received and Kim kicked and they area. A ensued. Ju were fight but stayed defendant was fight minor Kim testified injuries. present the background. and six to ten the next December Kim evening,

Between 8 and 10 p.m. friends, returned to defendant’s neighbor- victim including Suryaatmadja, cars, black Honda. Nissan and a gray hood. The was two riding group beaten Kim and Ju those who had fight The aim was have even with defendant’s around the comer from before. The night group parked knife, other and the was armed with group residence. Kim had a fishing security and of a “Club” automobile a baseball bat including parts weapons, device. it was nobody the residence alone. When appeared

Kim first approached home, in defendant’s a tire of a BMW automobile Kim slashed parked so, defendant friends. As Kim did and walked back to his driveway waiting of Kim’s friends yelled came out of the house and checked the BMW. Some Defendant saw fight. out his friends for an even to defendant bring back inside. and went group route, the other the street on

The then a back parked up drove group house, defendant’s residence. toward began walking side of defendant’s at an intersection. have back may hung and another Suryaatmadja person house, or of defendant’s four five the main arrived in front Once group bat, the the car with the came to the BMW and began hitting individuals up The have been shouting and a broken broomstick. group may Club pieces, that hit the car. was not in group epithets. Suryaatmadja off, later, came from the front and moments shots alarm went BMW’s to run as the began residence. The shots continued group door of defendant’s Kim looked back saw of two volleys, second away. During separate sidewalk. When from his neár driveway public defendant firing street, unconscious and in the lying Suryaatmadja gunfire stopped, The cause hours later. He died at a several hospital from the head. bleeding head and rear of victim’s right a bullet that entered of death was his right eye. exited above at “armed” Asians officer that he fired told a police

Defendant responding car,” car, and that he feared his vandalizing on his “beating who were metal rods pipes house. The officer saw two come into his would people in the street. interview,

In a stated as follows:3 During defendant tape-recorded police house, of December he inside the sick and On the fight was asleep. market, he car to to the a December as entered his evening go group alarm, him, of unknown men came toward He reactivated his car ran yelling. inside, back told his to call but then if he was being mother wondered friend, Defendant a too for five minutes. and Nothing “paranoid.” happened Beck, then the back fence. did not anybody over observe Kyle peered They in the area had been but when defendant where group previously spotted, turned his he saw the from the gaze, again group approaching opposite direction, still Defendant ran back inside to tell his mother yelling. “they’re He then heard the alarm off as his car. coming.” go they began “bashing” Defendant saw at least 12 and were He they “mobbing[,] basically.” people, broke the in the and glass front door fired three or four rounds “kind of . . . car, like The intruders but came downward.” his defendant stopped hitting and outside shot six or seven more times as the fled. He was not group and did not intend to hit He was to them to “aiming” anybody.4 “trying get car,” because had “done a lot they to and he wanted to stop” damage [his] “hold until the came” so would be “arrested or whatever.” cops they [them] rounds, When his semiautomatic which held 13 ran out of ammu- weapon, nition, he ran back inside. His mother was already making emergency He call. locked the door and for the waited police. inside,

Defendant also insisted that he when fired from it looked like the was at me” and the door.” Defendant group “coming declared that “rushing he we were to killed.” “thought going get

The recovered four shell from the house police casings inside and another BMW, ten from the There was bullet to the and to driveway. damage two street, vehicles in the and level parked heights angles suggested One bullet firing. the third of a townhome over a passed through story wall Street, block of blood away. where the victim fell was on Hiawatha pool 182 feet from where shell in defendant’s were found. casings driveway Reuser, Beck,

The defense case included Chad and testimony by Kyle mother, (Janet). defendant’s Janet Breverman Reuser corroborated defend- ant’s claim that he was not at the of December 17. Beck and fight present Janet described events inside on the defendant’s house December night 18.

Beck testified as follows: He and defendant were television in watching room, defendant’s bedroom defendant left the he stating going when testify recording did tape police played 3 Defendant trial. The of his interview was part prosecution’s as case-in-chief. interview, point, according present 4 Atthis to the at the defendant demonstrated detective level, position, ground. that he fired with arm in a locked to the parallel his almost sore throat. Defendant returned lozenges the store for his get his Defendant said someone holding immediately, already gun. apparently “bats chains and should call because “15 to 20 armed with and guys,” stuff,” Beck defendant had him” as tried to into his car. get “rushed he window, feared slowly, looked out the front saw a white Honda pass minutes, outside and looked After few two went drive-by shooting. “four five heads.” Defendant asked Beck gate; guard over Beck saw front. then heard the rear of the house while defendant ran back to the Beck caused think the had forced their way sounds that him to intruders smashing thereafter, Within Beck heard window. seconds through gunfire. the December she was Janet testified as follows: On of evening alarm in her The of defendant’s car television room. watching chirping house, he the then Defendant reported indicated had left returned. quickly the house. guys” walking “there were a of Oriental toward group whole house, Defendant, Beck, rear of while and went to check the the perhaps bathroom, to the where driveway Janet went to the which was adjacent bathroom, car alarm as she exited the the defendant’s car was Just parked. off, The to the and she heard and “blows” vehicle. breaking glass went car. of least three were the blows suggested pounding frequency people to be through She to the ground,” “things coming “dropped expecting time, “fear.” that defendant yelled window.” She was in About “absolutely” 911,” to the family By “call and she crawled into room telephone. call, shots fired. time she made the had been case, no court ruled there was At the close of the trial prosecution deliberation, thus be or and the verdict would evidence premeditation The instructed on both express limited second murder. degree also instruc- theories of that offense. The court provided malice implied tions, or others as as on reasonable defense self agreed by parties, homicide, a violent on the use of force resist justifiable permissible intruder, arising an intentional manslaughter killing domestic on as voluntary self-defense, and on belief in the need for from an honest but unreasonable an, as the reckless killing by unintentional involuntary manslaughter act. Defendant was highly commission of a dangerous grossly negligent murder, The was found true. firearm-use enhancement convicted to life. years sentenced defendant a term of court alia, failing, court erred by defendant inter that the argued, On appeal, motion, theory voluntary manslaughter, to instruct on a second its own or heat of a sudden killing passion.” unlawful intentional “upon quarrel Justice concurred in (§ 192(a).) In an Justice Armstrong, opinion District, The Division Five agreed. the Court of Second Appeal, Grignon, reasoned, essence, of threat and fear of same evidence majority a claim of unreasonable self-defense also harm which supported permitted based on heat of concluded manslaughter majority verdict passion. Sedeno, the instructional error reversal under required the heat of issue because the had not resolved necessarily defendant in another context. against concurrence, us to Justice Turner reconsider separate Presiding urged sua on lesser included rule instructions scope requiring

offenses, as under this of error category well as circumstances which should for review. granted reversal. We require People’s petition

Discussion to instruct on all theories Duty supportable lesser offense. below,

As defendant the trial court’s urges voluntary manslaughter instructions were because the heat defective did not include of they passion omission, for that in the The defend theory evidence. despite support theory ant him of his “constitutional to have the suggests, right deprived determine material issue the evidence.” v. every by (People presented 722, 225, (1963) Modesto 59 Cal.2d 730 382 P.2d Cal.Rptr. [31 33] 307, (Modesto); (1982) see also v. Wickersham 32 Cal.3d 335 People [185 436, (Wickersham).) 650 P.2d Cal.Rptr. 311] hand,

The on the other that the to instruct sua People, argue duty on a lesser included offense is satisfied the court instructs on the when of that offense most and the line of theory consistent with evidence court, defense at trial. The need not further pursued urge, People provide, additional, in the absence of a defense instructions on and request, perhaps conflicting, theories of the lesser offense. We find defendant’s more position persuasive.

“Murder is the unlawful of a human with malice killing being 187, (§ (a).) subd. A defendant commits an intentional aforethought. who and but of . . . voluntary unlawful who lacks malice killing guilty 186, (§ 192.)” (1995) v. Barton 12 Cal.4th 199 manslaughter. (People [47 569, (Barton).) P.2d the intent to unlawfully 906 Cal.Rptr.2d Generally, 531] 188; 1103, (§ (1991) kill constitutes 1113 malice. v. Saille People 364, 588]; (1994) P.2d see In re Christian S. 7 Cal.4th 820 Cal.Rptr.2d [2 768, 33, (Christian S.).) “But a 872 P.2d Cal.Rptr.2d [30 defendant kills lacks malice ... in lim- who intentionally unlawfully ited, acts in a defined circumstances: either when the defendant explicitly

154 192, (§ (a)), ‘sudden or heat of subd. when quarrel passion’ defendant unreasonable but faith belief kills in ‘unreasonable self-defense’—the good 768; (see S.[, supra,] act in self-defense having []Christian []Flannel, 668).” (Barton, Cal.3d 12 Cal.4th at 25 intentional, heat of and unreasonable self-defense reduce an Because murder to manslaughter negating unlawful from killing voluntary (ibid.), a homicide voluntary element malice that otherwise inheres in such of these forms is considered a lesser manslaughter necessarily two 201-202).5 (id. murder offense intentional pp.

“ cases, ‘It is that in criminal in the absence of a request, settled even to the general the trial court must instruct on the law relevant principles raised of law general issues evidence. principles [Citations.] connected with closely openly case are those governing principles court, the facts before the and which are understand- necessary jury’s 524, Martin Cal.3d (1970) case.’ v. St. 531 ing (People Cal.Rptr. [83 been held 463 P.2d That has to include giving obligation the evidence raises a instructions lesser included offenses when question (see, offense as to whether all of the elements were present 370]), 1 Cal.3d 444 462 P.2d People Hood e.g., Cal.Rptr. but not when no evidence that the offense was less than that charged. there is 1009]; Cal.3d 487 P.2d v. Noah (People Cal.Rptr. (1969) 70 Cal.2d Cal.Rptr. v. Osuna exists even 678].) The to instruct on lesser included offenses obligation as a tactics a fails to request when matter of defendant trial (1969) its (People but to v. Mosher objects being given. instruction expressly law, greater necessarily in a if either 5“Under a lesser offense is offense California offense, alleged accusatory actually the statutory greater the or the facts the elements of offense, be greater the such that cannot include the elements of lesser the pleading, all 108, (1998) 117 committing (People without the v. Birks Cal.4th committed also lesser.” 19 848, (Birks).) was the bench Though question raised from Cal.Rptr.2d 960 P.2d 1073] [77 Mosk, argued has that argument, by party Justice no here otherwise at oral and is addressed (§ 192(a)) passion” is not voluntary manslaughter quarrel a sudden or heat of “upon dispute prosecution’s did necessarily included of intentional murder. Defendant offense kill, involuntary manslaughter instructions he and defendant received claim that intended to However, killing. as theory grossly negligent particularly but on the of an unintentional appellate argument that he originally presented Appeal, the Court of defendant’s voluntary manslaughter has assumed as a entitled to an instruction on heat form case to killing. thus have no occasion in this theory applies only this to an intentional We that 780, S., (But 4 invariably supra, p. 1 Cal.4th at fn. so. see Christian decide whether that is voluntary malice may implied reduce murder [suggesting that unreasonable self-defense murder, manslaughter, may but manslaughter].) reference to Justice Mosk’s the fact too, theory, been raised This has not upon committed a fetus is also irrelevant in this case. be where, concede, event, bearing as it has appears Justice Mosk no by parties. any as (Birks, here, supra, being. a human 19 specifically charged murder accusatory pleading 394, 117; 456].) (1957) Cal.2d p. People Cal.4th at v. Marshall 48

155 379, 379, 659]; 461 P.2d v. Graham People 1 Cal.3d Cal.Rptr. 303, 217, 455 P.2d Just as the 71 Cal.2d Cal.Rptr. of a greater have no interest conviction legitimate obtaining evidence, than that a defendant has no to an right offense established by is sufficient to establish a lesser included when evidence acquittal Martin, 524, 533.)” (Sedeno, offense. supra, v. St. 1 Cal.3d (People supra, 703, 715-716, omitted; Barton, Cal.3d fn. see 12 Cal.4th at supra, pp. 194-198.)

Cases have that the of sua instructions suggested requirement sponte arises, other from the defendant’s under the California among things, right Constitution “to have determine material issue every presented evidence.” 35 Cal.3d (E.g., People Geiger 519 [199 674 P.2d 50 A.L.R.4th overruled on Cal.Rptr. (Geiger), Birles, 108; Wickersham, other Cal.4th see also grounds, supra, 19 supra, 307, 335; Sedeno, 703, 720; Modesto, Cal.3d supra, supra, However, 730.) Cal.2d we have stressed the broader consistently said, interests served the sua instructional rule. As we have insofar sponte as the to instruct duty or applies regardless requests objec- parties’ tions, it or of either prevents “strategy, ignorance, mistakes” from party choice,” jury with “unwarranted presenting all-or-nothing encourages “a (Wick- verdict ... no harsher or more lenient than the evidence merits” ersham, supra, added), 32 Cal.3d at italics and thus p. protects (Barton, “truth-ascertainment function” jury’s 196). “These reflect concern for the accused policies only] rights persons [not of crimes (Wickersham, for the overall administration of justice.” [but also] 32 Cal.3d at

We have noted the verdict choices as a basis for danger all-or-nothing However, the instructional rule. we have never intimated that the rule is satisfied once the has some lesser offense so that the court may option, limit its sua instructions to those offenses theories which seem evidence, on the or on which the strongest have relied. On the parties openly indicated, as contrary, we have the rule seeks the most accurate expressly that the possible judgment by “ensur[ing] will consider the range full verdicts” included in the possible of the wishes or charge, regardless parties’ 307, 324, (Wickersham, added.) tactics. italics infer- supra, The offense, thereof, ence is that lesser included which is every theory the evidence must be to the by jury. supported presented The concede that the rule is not consistent effectively they suggest People that should “reexamine” the sua existing argue with law. we They only a matter the limit as and should impose proposed to that extent duty sponte of first impression.6 contravene the advocate would to do so. The rule the People

We decline of the existing in our cases have consistently expressed support policies reason no persuasive People present instructional requirement. from these well-established principles. departing Barton, and Indeed, considered recently 12 Cal.4th we supra, in rule for sua instructional contention that the sponte rejected defendant's akin to closely be narrowed in a fashion included offenses should lesser sponte dissent, requiring rule sua urges length that the California 6 In Justice Brown entirely abrogated in favor of a be necessarily included offenses should instructions on lesser However, that broader issue is not only request. a party’s requiring rule such instructions us, argument, At oral made no such contention. People because the themselves have before People agreed purpose. Counsel for the any disclaimed such People’s explicitly the counsel that the court’s only specifying the “limited extent” of they of the rule seek modification beyond single theory of a lesser included not extend duty on its own motion does to instruct by at trial. strategies pursued parties and the that most conforms to evidence offense us, “single theory” consider whether Accordingly, resolving the case before we in general requiring sua rule is consistent with the established corollary advocated offenses, be general rule itself should' not whether the on lesser included sponte instructions abolished. today inconsistently, because in Birks we overturn act implies Justice Brown we offenses on lesser related allowing to demand instructions rule defendants ill-considered 510; supra, Cal.3d see also (Birks, overruling Geiger, to that extent lesser instructional rule for sponte to reexamine the sua post), but we decline here fn. Birks, however, offenses, the issue equally deems ill-conceived. a doctrine she directly vigorously and abrogated be related offenses should the rule for lesser whether Birks, question received granted and principal reason we review advanced. It is the Birks, Hence, exceptional briefing parties. attention of the complete and focused fully No explored. law were a decision to settled justify must overrule circumstances which imply general distaste Though arguments of their here. several presented situation is similar (see post), People do fn. included offenses instructional rule for lesser sponte for the sua and constitutional part, the fundamental objections to that end. For the most pursue their any parties’ briefs. In not addressed in the by Justice Brown are arguments raised policy Birks, event, significant reasons to logical there are length here and in note at both as we aban- included offenses while respect to lesser precedent California with follow established Birks, 154-155; (Ante, at pp. offenses. case of lesser related doning precedent in the such 112, 117-119.) pp. Cal.4th at reversibility observes, modify by which herein the standard we do As Justice Brown has heretofore been included offenses sponte on lesser to instruct sua erroneous failures raised, addressed at 165-178.) directly (Post, that is an issue But pp. determined. actual for its henceforth be examined concluding that such error must length, By in this court. outcome, prejudice of reversible the uniform standard simply adopt on the trial we effect “miscarriage justice” clause trial error virtue forms of state law applicable to most assertion, VI, do not (art. 13). Contrary we to Justice Brown’s § the California Constitution on the denigrating importance its on the one hand while thereby cling to the sua rule (See post.) fn. other. also here. A brief discussion is by necessary suggested background the context in which the Barton issue arose. explain Sedeño, we noted that the sua supra, duty sponte instruct on all material issues evidence extends to presented by defenses (id. 716), as well as to lesser included at but a we drew p. sharp offenses concluded, distinction between the two situations. In the case of we defenses, a sua instructional arises if it that the defendant is sponte duty “only appears defense, on a such or if there is substantial evidence relying supportive such a defense and the defense is not inconsistent with the defendant’s (Ibid., Thus, added.) of the case.” italics the trial theory when court believes “there is substantial evidence that a would inconsistent with support defense defendant, that advanced the court should ascertain from the defendant he (Id. whether wishes instructions on the alternative fn. theory.” p. contrast, added.) italics By offense is one that is “[w]hen divided into degrees lesser and there is evidence encompasses offenses, from which could conclude that the lesser offense had been com- mitted, the court must instruct on the alternate even it is inconsistent theory if with the (Ibid., added.) elected . . italics defense defendant.

Wickersham later concluded that the unreasonable self-defense theory voluntary “comes within manslaughter Sedeno’’s of ‘defenses’ for category purposes (Wickersham, to instruct sua obligation sponte.” Hence, reasoned, 329.) Cal.3d Wickersham sua instructions evidence, even if theory, by the were not supported unless necessary hand, consistent (Ibid.) with defendant’s trial On the other theory. Wickersham confirmed that where evidence in a murder case would a heat of support passion “the trial court theory voluntary manslaughter, (Id. to instruct on the obligated theory.” The instructional distinction between and lesser included defenses offenses Barton, There,

arose again 186. defendant fatally heated, shot the victim during lot The defendant had parking argument. was, usual, extensive firearms military training as legally carrying semiautomatic The exact circumstances of the pistol. were in shooting substantial The defendant claimed he saw a knife in the dispute. victim’s hand, brandished his to hold the gun victim for the but then fired police, while reflexively backward to avoid the victim’s move- stepping threatening ment. The defendant the omission of instructions on requested voluntary murder, as a lesser offense included manslaughter because such instruc- tions would contravene his that he killed theory trial court accidentally. denied the and instructed on both heat of request unreasonable self-defense theories of In their voluntary manslaughter. jury arguments, murder, adhered to defense counsel claimed an intentional while

prosecution excusable, accidental, killing. an and thus the premise conviction, that we the defendant urged manslaughter On from his appeal defenses, treatment of offenses and instructional differing Sedeño’s abrogate defenses, him, on lesser to veto instructions as in the case of thus allowing the We declined invi- his trial strategy. included offenses inconsistent with sound, and in this reasoning respect tation. We concluded Sedeño’s on lesser included instructions that the rule sua sponte requiring offenses be retained. the should strategies regardless parties’ defenses not asserted to . . . instruct allure Barton explained [on “[f] consider the to not the jury opportunity the will by deprive defendant] is the the evidence. Nor offenses established by full of criminal range all offenses in- to seek conviction on denied the opportunity prosecution Moreover, to ferret to trial courts the charged. require cluded within crime evidence, the even when be shown by all defenses that might possibly out trial, only place would theory the defendant’s inconsistent with create a but would also potential on the trial courts undue burden Sedeño, pages the defendant. As we said to prejudice ‘ [concerning instructions sua sponte insistence upon 716-717: “Appellate or not clearly defense trial theory are inconsistent with which defenses] trial defense attorneys put the would hamper demanded evidence by the evidence theories and winnow to glean legal under judges pressure ’ ” (Barton, supra, instructions.” tenable and remotely sophistical 186, 197.) concluded, inform hand, court’s failure to trial Barton

On the other “[a] lesser guilty to find the defendant [included] of its [a] jury option truth-ascertain- jury’s would impair [supported evidence] offense choice nothing’ an ‘all or “to make function” by forcing ment thereby acquittal, the crime charged complete conviction of between defendant is guilty decide whether the to denying opportunity (Barton, the evidence.” included offense established a lesser added, italics fn. Cal.4th self- and unreasonable heat of whether Barton then analyzed mere are defense, to voluntary manslaughter, reduce a murder insofar as they preclude on lesser instructions allowing the defendant 7 Barton also observed that a rule unfair to the theory ... be defense trial “would with the included offenses inconsistent argue if the that even deny opportunity prosecution it prosecution,” because would offenses, guilty of the lesser at least he or she was guilty of the defendant was not are not 186, 196.) fairness considerations argue that similar (12 Cal.4th offense. objection that led to here, of instructions omission not a defense because it was presented is further theory jury. This contention party and neither argued that passion, on heat of discussed below.

defenses the defendant which control under Sedeño. Barton answered may that in the question negative.

We in Barton that because “it is the defendant acknowledged [ordinarily] theories, who offers evidence” on these and reduce because they operate murder to the lesser offense of resemble traditional manslaughter, they issue, affirmative defenses. Mindful of Wickersham’s on the we also holding noted in the close particular similarities between unreasonable conceptual (Barton, self-defense and the “actual” of defense “true” self-defense. supra, Nonetheless, 12 Cal.4th 199-200.) we explained, voluntary manslaugh- i.e., ter is itself an offense, unlawful from murder killing distinguished (§ 192). (Barton, because it is “without malice” only 12 Cal.4th at supra, 199.) self-defense, observed, Heat of and unreasonable we passion merely the establish malice” that the one offense from the distinguishes “lack[] [of] (Ibid.) other.

Hence, concluded, we Wickersham had not been correct in characterizing unreasonable self-defense as a mere of the sua purposes sponte defense “ ” instructional rule self-defense,’ of Sedeño. we ‘[U]nreasonable stated, defense; rather, “is . . . not a true it is a shorthand of one description form of voluntary And manslaughter. whether it voluntary manslaughter, arises unreasonable or killing during sudden from self-defense from crime; or quarrel heat passion, is not a defense but a more it is precisely, of a lesser offense included in the crime of murder. Accordingly, when defendant is charged with murder the trial court’s to instruct sua duty sponte, initiative, or on its own on unreasonable self-defense is the same as its duty to instruct on other lesser included any offense: this duty arises whenever the evidence is such that a could conclude that the reasonably defendant killed the victim in the unreasonable but faith belief good to act in having (Barton, self-defense.” 200-201, 12 Cal.4th supra, added.) italics Thus, concluded, Barton the trial court did not err in that case instruct- ing both heat of passion unreasonable self-defense as theories of voluntary manslaughter, even the defendant though to such instruc- objected tions and both had relied on parties inconsistent theories. As ex- Barton trial plained, court must instruct on lesser included “[t]he offenses . . . , the . [supported by . . the regardless of theories of the case evidence] (Barton, the proffered by parties.” 12 Cal.4th supra, Barton confirmed at that there length was substantial for both heat of support passion unreasonable self-defense in the confused circumstances sur- the (Id. rounding shooting 201-203.) issue. at pp. Barton,

Under self-defense, heat of and unreasonable as forms of murder, a lesser offense included in thus come within the broadest version of all material sua instructions on the duty California provide 703, 715.) In the (Sedeno, presented by supra, issues the evidence. rule the evidence suggests interests of this demands when justice, offense, but some lesser defendant be may guilty offense, range must be allowed to “consider full or mistakes of ignorance, limited strategy, verdicts—not possible than no harsher or more lenient so as “ensure the verdict is parties,” added; 307, 324, (Wickersham, Cal.3d italics the evidence merits.” Barton, 196.) The also inference inescapable see that, relative tactics or objections parties, regardless theories, the the on alternate offenses or rule strength requires evidence offenses, theories all lesser included any sua instruction and sponte case, thereof, a murder this means are the evidence. In which supported by self-defense, and as forms of volun- that both heat of unreasonable if must be to the both have substantial presented jury tary manslaughter, evidentiary support. to fails to limit the sua

The raise several a rule which objections People obviously to or theories most those lesser offenses duty instructional sponte the are arguments the record. None of and trial openly presented by People’s convincing.

First, to the of Barton by distinguishing the seek diminish force People with Barton was concerned suggest solely that case in several respects. They unfairness, if the to that would arise the the prosecution particular, the prosecution lesser offense instructions which preclude could defendant here, to unfairness arose the People No similar actually wished present. defense, assert, on a the like the relied exclusively because prosecution, neither instruc- sought than voluntary manslaughter other theory party tions on heat of passion.

Moreover, on his a defendant’s attack the Barton involved urge, People Barton, assert, over his objection. they of a lesser included conviction offense be challenged the offense charged may did not that a conviction of establish every for conviction on was denied the because the defendant opportunity latent, of a lesser included offense. Such theory if technically plausible, rule, about instruc- a defendant to remain silent the allows suggest, People defense, tions, that the court’s gamble line of strongest the pursue only or convic- will an acquittal lesser offense instructions produce “incomplete” offense, the if convicted of on appeal tion of the lesser then complain offense. charged Barton, are contend that Sedeño’s policies the

Aside from People all court, the with present the sua sponte, furthered by requiring offense, theories of a lesser included even those on supportable which defendant has not relied. So as the long consider least one may theory offense, reason, a lesser included there is no unfair all-or- People Indeed, choice nothing between offense and acquittal. People aver, lesser offense instructions harm more than the defendant may help evidence, when advance that are they theories obscure in the were not case, in the defense pursued actually contradict defense presented. stemmed Finally, the sua rule of Sedeño People suggest, significant from concern that counsel’s part inadvertence might prejudice the defendant lesser included by causing offense to be withheld pertinent However, assert, from the jury. doctrine of People constitutionally ineffective counsel has since Sedeño was decided. developed substantially insist, Today, mistaken failures lesser offense instruc- request tions are best handled through which such procedures by ineffective assistance bemay remedied. general answer these is the arguments one we have already given.

The California rule sua requiring instructions on all lesser included offenses, evidence, insofar as the supported by addresses concerns simply broader seen, than those the here. People identify As we have the rule both the defendant and the protects a prosecution against verdict to contrary evidence, the regardless own parties’ of their perceptions strongest lines of attack or defense. The rule’s is not to purpose guarantee some simply third choice plausible between conviction of the offense or acquittal, assure, but to in the interest of the justice, most accurate verdict possible encompassed charge the evidence.8 supported by These case, considerations exist in overriding every regardless its undermined procedural posture. They would be substantially if a trial court were to limit its permitted instructions on lesser included offenses to those theories the court believes have merit or conform to the greatest defense single 8 A option may actually third be arbitrarily of little value to either if side chosen and jury’s no closer to the rational view of the evidence. We realize that the United States Supreme “single Court has endorsed option” third idea purposes for of the somewhat anologous federal right constitutional to capital consideration of lesser included in offenses 2491, 2504-2505, (1991) cases. In Schad v. 501 U.S. 624 S.Ct. 115 L.Ed.2d [111 Arizona (Schad), the guarantee court held that the limited federal prevent seeks the state coercing judgment a eligibility by from of death preventing jury considering from a lesser included noncapital charge as an setting majority alternative to the defendant free. The Schad guarantee reasoned that long jury given single this is fulfilled so as capital noncapital is third option, even if the noncapital was not instructed on other lesser included offenses (Id. supported by 2504-2506.) also pp. evidence. pp. S.Ct. at We have [111 adopted analysis never such a restrictive purposes of California law. 162 while other theories also ignoring supported

actually presented, evidence.9 instruct, trial court it fails to

We therefore affirm that a errs if which find sua on all theories of a lesser included offense sponte, hand, the court is not substantial the evidence. On other support instruct on theories that have no evidentiary support, such obliged we next consider whether there substantial evidence Accordingly, based on heat of In manslaughter passion. this case verdict support view, evidence here. our such existed evidence, no “any

As our decisions existence prior explain, offense, matter how weak” will not instructions on a lesser justify are that the defendant is but such instructions whenever evidence required the lesser “substantial to merit consider- offense is guilty only enough 684, 12, (Flannel, 668, original 25 Cal.3d fn. jury. supra, ation” by 103, italics; (1991) also 1 Cal.4th People Bacigalupo see v. 553, 559]; v. Ramos People 820 P.2d Cal.Rptr.2d in this context 639 P.2d “Substantial evidence” Cal.Rptr. “ could . . from which reasonable . [persons] ‘evidence jury composed ” offense, that the but not the was committed. lesser greater, concluded (Flannel, Cal.3d Carr quoting accord, 513]; Barton, Cal.Rptr. 201, fn. 8 that a reasonable could find persuasive”].) [“evidence offense, substantial evidence of a lesser whether there is deciding witnesses, of a task for the not evaluate the credibility jury. courts should 668, 684; Wickersham, (Flannel, see also 32 Cal.3d supra, Cal.3d supra, 307, Moreover, noted, the sua to instruct on 324.) duty as have we sponte defenses, offenses, unlike the to instruct on mere arises duty lesser included wishes, the trial theories or and of regardless even defendant’s against Hence, has evidence to the defendant substantial actually tactics pursued. to People’s the sua rule allows defendant arguments—that 9 Several instructions, the defend- “gamble” by remaining silent that instructions inconsistent with request appropriate theory given, should not and that counsel’s failure ant’s trial be only in the apply ineffective of counsel issue—do not narrow instructions is an assistance us, applications. all its Of but instead the heart of the Sedeño rule in situation before attack indicated, course, per do not overrule Sedeño se. previously People ask that we as we have decisions, Indeed, arguments in our their length prior discussed above and for reasons convincing in People’s are not such an Insofar as the contentions justify would not action. context, limited issue in greater they respect with to the more this equally unpersuasive are case. instructions on a lesser offense exist even in the face

support may of inconsistencies the defense by itself.10 presented intentional,

An unlawful homicide is a sudden or heat “upon quarrel (§ 192(a)), (ibid.), and is thus if passion” voluntary manslaughter killer’s reason was obscured as the actually result of a strong passion “ aroused sufficient to cause an “provocation” ‘ordinary [person] ... to act or average without due deliberation and disposition rashly ” reflection, and from this rather than passion from v. judgment.’ (People (1976) Berry 777], 18 Cal.3d 556 P.2d Cal.Rptr. quoting 1]; v. Valentine People 28 Cal.2d P.2d v. “ Borchers 50 Cal.2d specific ‘[N]o (Wickersham, ....’” type provocation required supra, [is] 307, 326, Moreover, v. quoting People Berry, 515.) 18 Cal.3d at supra, p. “ ‘ aroused need be passion “[v]iolent, but can be anger rage, any ’ ” intense, (Wickersham, or enthusiastic emotion” high-wrought supra, p. v. quoting People Berry, 515) 18 Cal.3d at other than supra, p. revenge Valentine, “However, (People 139). 28 Cal.2d at supra, if sufficient p. time has elapsed between and the provocation fatal blow for return, subside and reason to is not killing voluntary manslaughter (Wickersham, . . . .” 32 Cal.3d at

Here, there men, was evidence that a sizeable armed group young intent, with dangerous weapons harboring hostile specific trespassed domestic upon property by defendant and acted in a occupied menacing manner. This conduct included intimidating to the defendant challenges followed fight, use of the to batter and smash weapons defendant’s residence, vehicle in the of his parked driveway within a short distance from the front door. Defendant and the other in the house all indicated persons intruders, that the number and behavior of the defendant which characterized “mob,” as a caused circumstances, immediate fear and Under these panic. reasonable could infer that defendant was aroused to and his passion, 10 Thismeans that substantial evidence of heat of passion and unreasonable self-defense exist, arise, may duty to instruct sponte may sua therefore even when the defendant accidental, killing claims that the or that the states of mind on which these theories Barton, depend were absent. example, For we concluded that when killing a during occurred argument, shortly a heated “upsetfting]” which itself followed an traffic incident daughter, between the victim and the defendant’s there was substantial evidence passion of heat of despite sought only the defendant’s insistence that he to detain the 202.) victim and fired weapon accidentally. his at p. Insofar as Sedeno and {Id. Wickersham Wickersham, (see 327-329; Sedeno, stated implied contrary or a rule supra, 32 Cal.3d 719), analyses (see their stemmed from the assumption, since corrected Barton, 186, 199-201), supra, 12 Cal.4th that voluntary manslaughter these theories of are mere on which the openly rely defendant must before the entitlement to instructions defenses arises. obscured, a sufficient such

reason was thus to by provocation produce in a effects of person average disposition.11 emotions A rational could also find that the intense and high-wrought jury time time threat had not had to cool or the by aroused initial subside by house, and fired shots then emerged defendant the first few from inside At in his fired the fatal second after intruders. one volley fleeing point continuous, statement, he acted in defendant that one suggested police his even chaotic to the riotous events outside door.12 Finally, response he in his that did not defendant insisted statement though police “aim[]” conclude, them,” that and fire “at could disbelieve claim reasonably evidence, his all the that defendant killed but while from intentionally, due to aroused sufficient passion by obscured judgment provocation. therefore that the erred in this it failed We conclude trial court case when instruct, a defense on heat of as a theory to even absent request, rever- The issue remains whether error warrants voluntary manslaughter. conviction, Court of concluded. sal of defendant’s murder as the Appeal issue, do this are that the standard While we resolve we finally persuaded existing of reversal the Court of in accordance with employed Appeal, law, below, As can and California is too strict. we standard explain determined should be with a rule under which actual replaced prejudice the Court of from the whole record. We will therefore remand cause to for a under correct determination Appeal prejudice principles. Standard reversal. have traditionally

Under the so-called Sedeño standard we applied offenses, the of instructions on lesser included erroneous omission omitted “the error reversal unless factual requires question posed by other, to the defendant under instruction was resolved necessarily adversely to an public policy rule as a matter mere vandalism 11 The ask us to instructions on provocation automobile is warrant lesser offense never sufficient Indeed, S., (See Cal.4th voluntary manslaughter. suggested. have so Christian we 768, 779, However, infer issue. Here the could presents fn. this case no such isolated home, vehicle, his attack on his within feet of entrance to that defendant observed an armed, who, suspect, had were clearly group and of men defendant reason to large, hostile previous evening, and that defendant feared seeking revenge the incident of grounds way their into the residence. Such scenario raises intruders intended to force beyond property. the “mere” destruction of provocation door, 12 Thus, rushing the the front they’re that “it looks like so I break defendant stated later, shooting gun Moments my just with . . . with the and I start out.” window hand continued, they going they going kept . . and I shot out and kept then . like defendant “[a]nd going like this again going just ran out and I’m like they I shot out like started then I shooting just shooting, shooting, trying get em to and I’m yelling—I’m stop and I’m . . . and that’s it.” Here, (Sedeno, instructions.” 10 Cal.3d given supra,

properly did not a heat of under other instruc- jury necessarily reject passion theory tions, and the do not otherwise. People suggest

However, us to reconsider in this urge Sedeño People respect. standard, insist, Sedeño is too a.test whether the error is People stringent of federal constitutional or is a matter of state magnitude, law. simply case, either reversal is not if an suggest, evaluation required the entire record demonstrates that the error was harmless. Defend- actually ant insists that the failure to instruct sua on all lesser included sponte offenses the evidence is error under both the state and federal supported by form, claims, Constitutions. In its federal he the error is reversible se. per contends, he Alternatively, Sedeño states the minimum level of “prejudice” under either state or federal scrutiny law. permitted conclude We that the failure to instruct sua on a lesser included sponte is, most, alone, offense in a case an error of California noncapital law determine, is thus subject to state standards of We further reversibility. in line with recent that such authority, misdirection of the is not jury subject to reversal unless an examination of the entire record establishes a reason- Const., VI, able (Cal. that the error affected the probability outcome. art. 13; Watson, 818, 836.) 46 Cal.2d supra, § we overrule the Accordingly, Sedeño standard of reversal this context. outset,

At the we reject that the error at issue in any implication alleged this case—the failure to instruct sua on an lesser included uncharged offense, or thereof—is one any aspect which arises under the United States Modesto, Sedeño, Constitution. In concluded that again we the right issue was “a constitutional right have determine material every 722, 730; issue (Modesto, evidence” presented by 59 Cal.2d Sedeno, decisions, 720), but neither those nor any since, other of our authorities before or that we were specified relying any degree constitutional principles. federal

Meanwhile, the United States Court has refrained from Supreme expressly recognizing federal constitutional to instructions on right lesser offenses in cases. In Keeble v. United States 412 U.S. 205 noncapital S.Ct. confirmed (Keeble), 36 L.Ed.2d the court that under 31(c) U.S.C.) rule of the Federal (18 (rule Rules of Criminal Procedure actions, 31(c)), in federal criminal defendant is entitled applicable only find instructions on a lesser included offense if the could rationally of the lesser guilt (412 offense but U.S. at acquit greater. pp. 166 31(c) 1995-1996].)13 at concluded the rule S.Ct. The court that pp.

[93 under Act (MCA), entitlement to trials the Crimes the federal applied Major land, criminal law offenses Native Americans on reservation by governing the sought even where lesser included offense on which instructions were MCA, under the under was one otherwise not but subject prosecution (Keeble, 412 supra, tribal law. U.S. at S.Ct. at 1995- pp. pp. [93 the the analysis While constitutional concerns influenced court’s MCA, 31(c) and have between rule the the decision noted “we relationship that the Due Clause of the Fifth Amendment never held Process explicitly a lesser the of a defendant to have the instructed on guarantees jury right [MCA], those are included offense .... In view our interpetation (Keeble, that face.” at at p. supra, we need not 213 S.Ct. p. questions [93 1998], omitted.)14 fn. circum- the court that in acknowledged

Subsequently, high particular in a capital stances, included the denial of instructions on lesser offenses However, case the violate the federal Constitution. court emphasized would Moreover, strict that it to the context. the holding its limiting capital the trials limitations the court has since even on rule for placed capital constitutional to instruc- any right reluctance to formulate suggest general tions on lesser offenses.

Thus, 65 Beck v. Alabama in 447 U.S. 625 S.Ct. [100 (Beck), Alabama not constitu- L.Ed.2d the court concluded that could statute, a state limited to a death sentence after tionally impose applying 31(c) may guilty be of an offense provides part: 13 Rule in relevant “The defendant found statute, charged A Penal Code section necessarily included in the offense . ...” California waived, may the similarly provides jury, judge if a trial find “[t]he offense, necessarily in guilty any of which is included [the defendant commission charged . . .” with which he is . offense] only one high of lesser offense instructions in 14 The court has since revisited issue case, S.Ct. subsequent noncapital v. United 489 U.S. 705 [109 Schmuck States Schmuck, Keeble, decision; 31(c) (Schmuck). no constitu- like was a rule 103 L.Ed.2d 734] 31(c) rule presented, none was concluded that because tional issue was and decided. Schmuck offenses, necessarily to a parties included approach embodies strict elements lesser which, though entitled to on lesser offenses federal criminal action are not instructions statutory found in charged way, contain elements not arguably related offense in some 1450-1453].) (Schmuck, supra, pp. S.Ct. at pp. 489 U.S. at 715-721 [109 offense. Schmuck, Keeble, requested a offense like the had lesser The defendant accused instruction, decisions, rule long-standing that the principle and in the court noted the both the evidence. supported by offenses entitles the defendant to instructions lesser included Keeble, 1451]; 208 (Schmuck, supra, 412 U.S. p. p. U.S. at S.Ct. at 1993, 1995-1996].) rale an entitlement to implies noted that the S.Ct. Schmuck further distinguishing request between a by parties [such] “without such instructions both (Schmuck, defendant.” and one made instructions made the Government 1451], added.) Keeble or No claim arose in either p. italics U.S. S.Ct. 31(c) sua on lesser requires rule a federal court to instruct Schmuck that offenses, Supreme Court has never confronted that issue. United States cases, from capital lesser prohibited considering noncapital offense included within the necessarily charge capital supported by evidence. The court made clear at the outset that “we have never held that a defendant is entitled to a lesser included offense instruction a matter of as hand, (Id. due at 2389].) 637 S.Ct. at On the other the process.” p. p. [100 court noted the the “value to defendant of this as procedural safeguard,” evidenced “the universal by ... in both state and federal nearly acceptance courts” that a defendant is entitled to instructions on lesser included offenses Indeed, out, warranted the by (Ibid.) evidence. the court Alabama pointed itself granted right under in circumstances cases. appropriate noncapital (Id. at 2389-2390].) 636-637 S.Ct. at pp. Such pp. court protection, [100 reasoned, case, in a “especially important” and the risk that a capital jury will convict of the offense an as alternative to complete acquittal when it believes the evidence shows some only lesser crime “cannot be tolerated in a case in which the (Id. defendant’s life is at stake.” at 637 p. “Thus, 2389].) S.Ct. at if the(cid:127) p. [100 of a lesser included unavailability offense conviction, instruction enhances the risk of an unwarranted [the is constitutionally from prohibited state] from the withdrawing option in a (Id. case.” at capital 2390].) 638 S.Ct. at p. p. [100 The Beck rule has never since been extended beyond context. capital Moreover, cases, in two more recent court has Beck itself a high given narrow construction. Schad, 501 U.S. a five-justice majority rejected capital

defendant’s contention that although his was instructed on the lesser murder, included offense of second he degree entitled to additionally instructions on the lesser included offense of The Schad robbery. majority that the explained Eighth Amendment at concerns issue in Beck are focused itself, on the entirely i.e., reliability verdict capital whether the jury forced, have been may verdict all-or-nothing convict of a option, crime capital its view of the against evidence in order to avoid complete (Id. at acquittal. Hence, 2504-2505].) S.Ct. at pp. pp. [111 reasoned, majority Beck is satisfied if a receives capital jury single third noncapital between option since this capital charge acquittal, relieves the all-or-nothing to return an inaccurate pressure verdict in capital order to avoid (Id. the defendant acquitting entirely. S.Ct. at p. p. 2505].)15 in

Recently, Hopkins v. Reeves 524 U.S. S.Ct. (Reeves), L.Ed.2d court high concluded that the of Beck principles above, length 15 Asindicated at we have identified broader concerns as the basis of the requiring California rule sua instructions on all lesser included supported offenses principally evidence. These include policy jury, that the in the performance of its (Barton, 186, 196), “truth-ascertainment function” exposed Cal.4th shall be “the lesser did not Nebraska to instructions on nonincluded require provide in offenses cases when it did not allow such instructions in noncapital capital court that the cases. As the central core of its the Reeves noted analysis, it Nebraska scheme before was “in two critical distinguishable respects” in (Reeves, supra, from the invalid Alabama statute at issue Beck. 524 U.S. __ First, Nebraska, Alabama, S.Ct. at unlike p. permitted cases, cases, it instructions in on lesser offenses in as capital noncapital Therefore, (Ibid.) deemed to Nebraska charge. be capital “ ” no barrier’ conviction a noncapi- erected ‘artificial case to capital Second, denied (Ibid.) tal offense an alternative to Nebraska as acquittal. defendants, to all noncapi- instructions on nonincluded offenses capital tal, Alabama, thus, treat cases from unlike “did differently capital [not] (Ibid.) cases.” noncapital to that

Reeves that these distinctions” conclude “[b]y observed ignoring to nonin- Amendment Nebraska allow instructions on Eighth required cases, the court had cluded offenses in of capital appeals unjustifiably manner “limited in more than rule in Beck.” sovereignty state a severe Beck, 88, __ [118 (Reeves, U.S. S.Ct. the Reeves supra, 524 reasoned, a State not erect a court stands for the “that only may proposition to the of instructions that actually barrier capital-specific, provision artificial (Reeves, law.” 524 U.S. supra, p. are lesser included offenses under state __ 1901], added.)16 italics S.Ct.

Thus, doubt federal court’s leave substantial that the decisions high in to lesser included offense instructions any Constitution confers right a that the no basis conclusion They cases. whatever noncapital provide California, instructions, does on the federal charter such as require would Indeed, that the recognized court has court’s own motion. this explicitly evidence, verdicts," range may so reach the verdict on the possible full of that it correct (Wickersham, Cal.3d either lenient the evidence merits.” one “harsher or more than 307, 324.) States, including all opinion passing in noted in 16 JusticeThomas’s Reeves “[a]lmost Nebraska, offenses been deemed to constitute provide instructions on those that have suggested never that the crime. have lesser included offenses We [Citation.] 88, __ 1895, 1901], (Reeves, anything supra, 524 S.Ct. requires more.” U.S. Constitution case, omitted, added.) capital of a and no This made in the context fn. italics statement was right lesser recognized a to instructions on that the court had constitutional implication arises demonstrates, any foregoing discussion other circumstance. As included offenses in long any holding. such court has avoided Schmuck, Reeves, they U.S. as analyses and of insofar We note that the offenses, are requirement lesser nonincluded with of instructions on demonstrate difficulties decision, us, companion among today prompted which in have considerations merely instructions on lesser abrogate entitling rule the defendant demand California Geiger, (Birks, supra, overruling by the Cal.4th evidence. supported related offenses supra, 35 Cal.3d included offenses on lesser instructions rule sua sponte California requiring (Geiger, supra, of federal law. is the evidence independent suggested 510, 519.) Cal.3d instructions the rule sua sponte affirm that requiring we

Accordingly, derives the evidence offenses supported all lesser necessarily of the United States Supreme law. In light from California exclusively disclaimers, related federal to interpret and its tendency Court’s careful nonconstitutional, a narrow we rules, way, constitutional both that such hold has not done—to to do court high expressly decline what the federal cases by rule is noncapital an instructional required Constitution.17 where, here, asserts, however, a lesser instructions on as

Defendant law, the incompleteness included offense were as a matter of state given federal error subject constitutes federal constitutional those instructions First, that “the defendant briefly suggests review. standards appellate omitted manslaughter effectively failure to instruct on heat malice element of negating and removed issue provocation offense This, of instruc- added.) defendant form (Italics urges, from the jury.” Constitution.18 to direct under the federal scrutiny tional error subject on of manslaughter are not Defendant was not convicted We persuaded. murder, instructions, by an offense supported the basis of but of incomplete His complaint, as to which defendant claims no misinstruction. evidence it, murder was offense of charged as we read is not that element consideration, the omission of an but that removed from the jury’s simply course, ruling questions of may, the federal on depart 17 We of from Constitution are Constitution procedure, interpretations criminal and our of California California (Raven (1990) Cal.Rptr. by Deukmejian 353-354 [276 limited federal law. v. “cogent interpret exist to a state constitutional Even if reasons” must 801 States Constitution differently similarly provision of the United provision {id. from a worded cited), approach to long-established California at and cases the reasons for the offenses, law and under a matter of state constitutional on lesser included both as instructions Of length in our decisions. procedure, been set forth general principles of criminal have course, included offense repudiation of an entitlement to lesser we face here no direct Indeed, federal law explained, as we have by Supreme the United States Court. instructions entitlement, all federal upon request, in this at least provides other than the Constitution widespread acceptance noted both its value and its high and the court has prosecutions, case, general no again raise among Finally, stress that in this the states. we rule, merely aspect. They seek including its sua objection to the Sedeño instructional by case. presented this the rule in the limited circumstances application limit of offense,” otherwise, “the as italicized suggests quoted words 18 ThoughJustice Kennard (Italics added.) text, manslaughter.” passion only can refer to the antecedent “heat in the raise, appeal, Hence, the first time in this defendant seeks to there can be no inference that 19, post.) (See & fn. also text discussion jury on murder. a claim that the was misinstructed consideration of denied him full voluntary manslaughter jury “element” above, lesser alternative to murder. As explained the United States that of lesser included offense Court has value acknowledged Supreme in lieu of an equally instructions as a overconviction safeguard against However, from court has refrained unwarranted acquittal. high explicitly cases. It these interests federal constitutional stature in noncapital according deem a state thus the United States Court would likely Supreme appears federal for a offense to be untainted conviction noncapital error in the absence instructions on complete constitutional unrequested circumstances, defendant’s conviction lesser included offenses. Under these cannot such a taint because instructions on a lesser acquire simply but, a were as in the absence of defense given request, offense were provided incomplete.19 Hicks v. Oklahoma S.Ct. 447 U.S. 343

Citing (Hicks), that he length defendant at somewhat urges greater L.Ed.2d 175] determination, interest in a even absent jury had state-created liberty therefor, all on his of the lesser included bearing guilt issues request of murder. as an alternative to the manslaughter charge offense voluntary insists, instructions, defendant denied him this manslaughter incomplete heat of rendered him guilty with to the issue whether right respect The denial of this state-created right of the lesser offense. avers, cannot be cured under the federal Constitution by defendant findings, on what a instructed form of review any appellate speculates properly Hicks, (See 447 U.S. at S.Ct. would have done. pp. Mississippi see also Clemons 2229-2230]; U.S. pp. (Clemons)). 1441, 1447, L.Ed.2d S.Ct. agrees general fully, sponte, the failure to instruct sua apparently Kennard 19 Justice However, error alone. supported included offense the evidence is state law lesser voluntary manslaughter distinguishing murder from noting “unique” role of malice in Kennard, (dis. J.)), suggests sponte, the failure to instruct sua (post, opn. of she 187 existed, intentional, killing that an unlawful is nonetheless passion where evidence of heat of voluntary a heat and thus constitutes not murder but passion, malice if done in of without offense, murder, to manslaughter, the of the malice element of the caused definition conviction, charge the she defective instructions on an element incomplete. be Such of concludes, hypothesis, error. the merits of this are a form of federal constitutional Whatever case, however, defendant, Throughout his briefs simply in this has not raised it. appellant the court, only argued has that the Appeal in the and in this defendant appeal, both Court it removed the lesser partially to on heat of was error because failure instruct offense (See & fn. voluntary jury’s also text discussion option manslaughter from the consideration. may ante.) in this court be People’s the brief on the merits passages Even if certain caution, by taken anticipate, approach the now attempt to in an abundance of interpreted as Kennard, change. before us does not The properly that the issue is not Justice our conclusion by the anticipated the contention himself has never advanced fact remains that defendant asserted, developed the let alone prompting, explicitly their he has never People. Even with they under federal law because in this case are defective argument, that the instructions by such a claim presented element murder. The issues incompletely defined the malice fully briefed. they clearly been raised and properly await a case in which have must

171 set However, recently merit for reasons we defendant’s lacks argument (1995) Cal.4th Cal.Rptr.2d in forth Wims when of reversal should apply addressed what standard (Wims). Wims of a of the truth 969c) to determination (see jury state statutory right § and deadly of a (there, dangerous enhancement use sentencing noncapital of an instructional omission (§ (b)) is violated by subd. weapon is state law held that such misinstruction of the enhancement. Wims element VI, of the California alone, article section 13 and thus under subject, error Constitution, conclusion, this error test. In reaching to the Watson harmless determination right jury that the state-created argument Wimsrejected due inter- federal process enhancements sentencing implicates noncapital Hicks, under state harmless error review ests under and thus precludes standards. that gener- focused on a state scheme statutory

As Wims Hicks explained, The defendant’s and discretion to the jury. accorded ally sentencing power however, this discretion by had been from exercising jury, prevented term for habitual offenders. statute that mandated 40-year specific trial but before ruled unconstitutional after habitual offender was provision court to decided. State law would have allowed appellate appeal for the its sentencing judgment sentence 40-year by substituting uphold Instead, the sole but the court did not do so. it affirmed on jury’s, appellate have that the sentence was within the could ground range jury imposed circumstances, Under these even absent the invalid mandatory provision. held, the actual Hicks the defendant had not received his due right process which, in state exercise of discretion either of the entities sentencing law, (Hicks, 447 U.S. S.Ct. such discretion resided. supra, Wims, 2230]; Wims, from in before us distinguishable

But we found circumstances Hicks, in the California Hicks in crucial Unlike laws issue ways. a defendant no right sentence-enhancement scheme affords noncapital to a right but the narrower sentencing, normative discretion jury determination enhancement. More- as to the truth of an alleged fact-finding over, not entirely an element of an enhancement does deprive omission of indeed, itself; defendant of a determination of the enhancement (Wims, allegation.” “did render verdicts on each weapon-use Wims error, 293, 310, italics.) This form of state law Cal.4th original concluded, (Ibid., Hicks. see also does not invoke the rationale of thus Wims 137, 386, 754 (1988) Cal.Rptr. v. Odle to instruct on rationale not to a failure Hicks [holding applicable circumstance].) elements of a special 738, addition, noted, Clemons, court U.S. the high in 494 supra, Wims due bar against no absolute federal process

made clear Hicks imposes of normal state law standards of review of a defective application appellate determination, to jury which also arose under state law. sentencing right U.S., 738, 741, 1441, 1444, (Clemons, S.Ct. 1447- supra, 494 Wims, view, 1448]; 310.) Cal.4th Clemons thus supra, supports reasoned, that Wims to a determination from state law any right jury arising is and limited law standards “qualified” state review by appellate (Wims, to that determination. 10 Cal.4th at italics applicable added.)

“The court’s in Clemons to California’s high reasoning applies [thus] 12022[, ](b) scheme for section subdivision sentence enhancements. Defend- ants’ state to on enhancement is statutory right findings jury [such an] of California to exam- courts constitutionally qualified by duty appellate ine ‘the entire cause’ when ‘misdirection of the and to any jury’ alleged Const., VI, (Cal. affirm the absent a art. ‘miscarriage judgment justice.’ therefore, if examine the to defendants’ we Contrary suggestion, § record of this trial to determine whether the instructional error resulted in a do not miscarriage engage we justice, any impermissible attempt ‘substitute’ our determination for the determination a defendant jury may Indeed, claim under section 969c. of such corrective appel- possibility late determination is inherent in the state scheme for determi- statutory jury rendered, nation. When such and thus af- review appellate complements, fords, and, thus, their full under defendants due of law jury rights process (Wims, 310-311.) Hicks. [Citation.]” Similar here. The state constitutional of sua requirement principles apply determination of lesser of- uncharged instructions sponte allowing fenses creates not to the exercise of norma- only right jury factfinding, Moreover, tive discretion. is itself and limited right by qualified standards of review also established the state Constitution. appellate When we assert and exercise our to review the error in this we way, power claim must no due interest identified Hicks. Defendant’s usurp process therefore be dismissed. violated, “state standards alone have been the State is free

When ... its state harmless-error rule to such errors of state law.” own apply (1967) 386 U.S. S.Ct. L.Ed.2d (Cooper v. California effect on the We therefore determine that federal law has no appro when, case, standard review in a of California priate appellate noncapital offense on defendant his otherwise valid conviction of a challenges under California law to duty the trial court failed in its sua grounds offenses, instructions, all correct and lesser complete, provide thereof, substantial all theories which including enjoyed support

173 correct whether principles It remains to consider evidence. California to the strict adherence continued or even permit, require, jurisprudence We conclude state law error. for this form of of reversal Sedeño standard not. do they decisions, the California Consti- recent in several

As we have explained ad- tution, specifically contains provision unlike its federal counterpart, shall that judgment error. It of reversible provides “[n]o dressed to issue trial, including conduct of kinds of error in the set aside” for various be of evi- admission or rejection and “improper “misdirection of jury” cause, dence,” evidence” including of the entire unless “an examination Const., (Cal. of justice.” in a “miscarriage indicates that the error resulted “ the electorate VI, 13, ‘added added.)20 This art. italics provision § rule that of abrogating preexisting of this state for the specific purpose ” 10 (Wims, se.’ error as reversible per had treated substantial any 478, 293, 314, (1993) 5 Cal.4th 501 v. Cahill Cal.4th quoting italics.) (Cahill), P.2d original Cal.Rptr.2d 1037] the constitutional as used in “misdirection of jury,” phrase “ ‘ “The ‘misdi- error at issue here. word extends to the form of provision, It seems mani- kind of instructional error. rection’ includes logically every incorrect, omitted instructions wrongly or conflicting, fest that ambiguous, or ‘misdirect’ in the Nothing language deliberations. jury’s may equally VI, of actual that its suggests requirement of article section history cause, the evi- including reference to ‘the entire determined by prejudice, dence,’ ‘misdirection,’ (Soule v. but not to others.” some forms of applies (1994) 8 Cal.4th Cal.Rptr.2d General Motors Corp. ” 470, 298].)’ Cal.Rptr.2d P.2d v. Flood 18 Cal.4th (People Wims, 314-315.) (Flood), quoting VI, Cahill, 13 of the of article section a renewed focus on the meaning abandon, insofar to conclude that we must California Constitution caused us law, rule of automatic reversal decades-old California as based on state criminal admitted in a confession was involuntary erroneously where an VI, eliminated the prior Article section 13 trial. Cahill reasoned as follows: causes a miscarriage substantial trial error any appellate presumption be that the record and evidence The Constitution’s justice. requirement in the case specifically applies examined for actual unfair harm particular VI, judgment shall be set provides: “No 13 of the California Constitution 20 Article section cause, aside, jury, of the of the or any ground on the of misdirection granted, or new trial evidence, any pleading, matter of any error as to rejection of or for improper admission or cause, unless, an examination of entire any procedure, after any error as to matter of evidence, complained the error of has opinion including the the court shall be miscarriage justice.” in a resulted errors in the admission of evidence. This is not eliminated duty simply because the error of was itself constitutional. In rare instances complained ” (Cahill, “fundamental involving ‘structural defects’ 5 Cal.4th at supra, p. 502) (for in a criminal denial of the proceeding right example, complete to a or to an it jury, be or beside the impartial judge), may impossible, point, record, to evaluate the harm resort to the trial and a resulting miscarriage However, of arise justice may of the evidence. the im- regardless confession, error, admission of a if proper even state constitutional is an mistake, (ibid.) a mere “trial error” evidentiary that occurred during case to the The effect of of be presentation jury. this form error can assessed in quantitatively the evidence to determine whether the light 487-502; (Id. error was or harmless. at also cf. prejudicial pp. Arizona 279, 1246, 1263-1265, Fulminante 499 U.S. S.Ct. 307-309 [111 L.Ed.2d seen,

“As we have the California reversible-error its provision, terms, directs that the nature of such an error be prejudicial evidentiary cause, determined ‘after an examination of the entire including evi- Const., VI, (Cal. 478, 13.)” (Cahill, 502.) dence.’ art. 5 Cal.4th supra, § circumstances, Under such effect of be such error is to prejudicial “[t]he determined, law, of California under the purposes generally applicable VI, test embodied in article section 13 ... . reasonable-probability [Citing Watson, (Cahill, supra, 5 Cal.4th at supra, pp. 836.]” 509-510.)21

We have since invoked similar to conclude that the Watson principles harmless error test to two forms' of state law instructional error applies Wims, criminal In trials. 10 Cal.4th we held that where the supra, right to a trial on a sentence enhancement arises from state noncapital solely law, the erroneous omission to instruct on an element enhancement is Constitution, VI, virtue of California article section to the subject, by (Wims, 314-316.) Watson standard of reversal. 10 Cal.4th at In supra, pp. Flood, 18 Cal.4th we ruled that supra, state law error from any arising must, a failure to instruct on an element of a criminal offense Cahill rejected the involuntary notion that California’s automatic reversal rule for con- misconduct, ground, fessions was based on some such as the deterrence of official which was (Cahill, independent accuracy fairness and of the trial itself. 5 Cal.4th Instead, noted, 506-507.) Cahill general apparent California rationale for the rule was a “ ” (Id. assumption juries that confessions have a ‘bombshell’ effect on the that hear them. se, observed, 503.) Cahill using justify p. assumption reversibility per this a rule of prior sight purpose significance” “lost principal decisions of California Constitu- VI, (5 improperly tion article section 13. Cal.4th at The fact that an admitted might expected prejudice abrogate confession often be did not cause constitutional (Ibid.) requirement that the actual effect the error examined in each be individual case. Watson, VI, under despite prior be evaluated section to article pursuant error is revers- such that with limited exceptions, cases suggesting California 480-491.) (Flood, pp. ible se. per the clear, the like of jury, make misdirection both and Flood As Wims Cahill, error for a form of in is of at issue admission evidence improper an individualized preju- Constitution expressly requires the California which Wims, 470, 487-490; supra, 18 Cal.4th (Flood, supra, dice assessment. Cahill, Moreover, in both Wims the at issue 314.) as in missteps Cal.4th the case to the jury, in the of were mere errors presentation and Flood unfair regard- defects that rendered proceedings fundamental structural 489-490; Wims,supra, at (Flood, 18 Cal.4th supra, pp. less of the evidence. 312-314.) 10 Cal.4th pp. here, abrogation and their requires govern application

Similar principles reasoning We our near-automatic reversal. explain standard of Sedeño in detail. erroneous failure near-automatic reversal for test of stringent Sedeño Modesto, supra, had its origins instruct on lesser included offenses

to that, such instruc- held where the evidence supported Cal.2d 722. Modesto tions, to have the defendant’s “constitutional right their omission violated (Id. at the evidence.” p. material issue by determine every presented of the Watson standard then rejected application Modesto expressly reversible, of that “[rjegardless the error was reasoning determine whether be, the denial of such of guilt may how evidence overwhelming VI, article section AlA fundamental cannot be cured right by [now [former] Constitution, right for the denial of such of the California section 13] meaning provision.” itself a within miscarriage justice 722, 730.) (Modesto, Cal.2d supra, 59

Sedeno, to the extent later modified Modesto 10 Cal.3d supra, if the issue be deemed harmless that Modesto error could acknowledging on lesser instructions been omitted by which would have presented under to the defendant adversely resolved necessarily included offenses was 721.) With this other, (Sedeno, instructions. proper however, instruct on a lesser failure to limited erroneous exception, to the remained subject the evidence has by included offense supported automatic reversal.22 Modesto rule of analysis support significant

Neither Modesto nor Sedeño provided rather than requires, that the California Constitution precludes, conclusion (1973) Cal.Rptr. 504 P.2d 1256] People v. Cantrell Cal.3d 672 22 Neither 523 P.2d People Thornton (Cantrell) Cal.Rptr. 11 Cal.3d 738 [114 nor Cal.Rptr. (Thornton), v. Garcia 36 Cal.3d 539 synthesized as later record, evidence, examination of entire for actual harm. including Indeed, observed, as we none of the authorities cited recently Modesto to by a standard of se reversal for support this form of error per any compelled 470, 488, (Flood, cited.)23 such holding. and cases standard, We now conclude that the Modesto even as modi- rigid slightly Sedeño, VI, fied is a article violation of section 13 of the California seen, Constitution. As we have that in cases of provision requires “misdirection of the court must examine the “entire jury,” appellate cause, evidence,” determine including if “miscarriage justice” {Ibid.) occurred. This cannot obligation be avoided Modesto's device of dixit, as an that a form of error is itself a miscar- asserting, ipse particular of the evidence. riage justice, regardless instruct,

The error in sua a to instruct on lesser failing sponte fully, included offense is not a fundamental structural defect in the mechanism of 478, (Cahill, 502) criminal 5 Cal.4th which cannot or proceeding cause, should not be evaluated for reference to “the entire prejudice by Const., VI, Instead, (Cal. 13). the evidence” art. like the errone- including § confession, ous introduction of an or the omission involuntary instructional enhancement, of an element aof offense or it is a mere charged sentencing error, trial one committed in the of the case to the theBy presentation jury. token, same adverse effect of an erroneous failure to probable provide lesser offense in a case can be assessed option particular readily by individualized, concrete examination of the in that record case. Under such circumstances, Cahill, inas the error must therefore be evaluated under the error, California test for harmless that set forth in generally applicable Watson.24 (Garcia), exceptions per state additional to the rule of se reversal for Modesto 826] applicable error. Garcia concluded that under the so-called rule to omitted Cantrell-Thornton circumstance, charged special instructions on elements of offense or automatic reversal issue, required parties recognized was not “where the omitted was in [the element] issue, only presented all evidence their command on and ... the record not contrary worthy [missing establishes the as a matter law but shows the evidence not element] omitted, added.) (Garcia, supra, In the consideration.” fn. italics of evidentiary described—i.e., complete “worthy” circumstances absence of on the evidence duty included under omitted issue—no to instruct on a lesser offense would arise Modesto

Sedeño. Phillips Cal.Rptr. 414 P.2d explained, 23 AsFlood 64 Cal.2d 574 [51 mistakenly cases had extended Modesto’s automatic reversal rule to the subsequent jury’s an element offense from the consideration. erronous withdrawal of (Flood, supra, 18 Cal.4th 24 Here, Cahill, concerns question implicates as in there is no indication the error in misconduct, procedures, such as deterrence of official so that reversal independent of fair trial underlying rule. prejudice purpose in the trial itself would defeat the as the the error characterizing be reached result cannot A different all determination of to a right defendant’s “fundamental” denial of the court’s determination issues, that an then reasoning appellate material indi- As Wims cure the cannot deprivation. on the evidence harmlessness issues determination of cated, particular to a state law right any VI, set forth in article standards review in turn appellate qualified 10 Cal.4th (Wims, supra, Constitution. 13 of the California section affirmed, bar appellate against Constitution’s 310-311.) And as Cahill arose the error itself even when error harmless applies where reversals 490-491; also see 5 Cal.4th (Cahill, supra, under the same charter. Flood, 479-491.) to instruct on a lesser erroneous failure can it be said that an

Nor that if the evidence was on the necessarily premise offense is prejudicial, in the first it offense instructions place, lesser substantial warrant enough had the instructions affect the outcome been strong enough must have are distinct. fact, review evidentiary standards of been omitted. In two Modesto, Sedeño, above, the sua and their progeny, under As explained arises if there is substan- a lesser included offense to instruct on duty offense, not the charged of the lesser but the defendant is guilty tial evidence 668, 684-685.) This standard requires 25 Cal.3d (Flannel, offense. supra, “ ‘a jury composed included offense whenever instructions on a lesser ” lesser, but not the that the . . . reasonable could [persons] concluded’ added, italics (Id. quoting committed. offense was greater, Carr, evidence is “sub- 294.) In whether deciding 8 Cal.3d supra, context, bare sufficiency, determines its only legal in this a court stantial” Wickersham, 684; Flannel, see also (See 25 Cal.3d not its weight. supra, 307, 324.) hand, Watson, entirely takes an on the other review under Appellate not on what review focuses of the evidence. Such posttrial different view do, in the to have done likely such a is jury could but what jury reasonable evaluation, that In making of the error under consideration. absence consider, the evidence whether things, other among court may appellate and the evidence relatively strong, is so the existing judgment supporting weak, is no that there comparatively different outcome is so supporting affected the defendant complains the error which reasonable probability arose to instructions give that a duty a determination the result. Accordingly, instructions offense, that the omission such a lesser included on error, the error whether does not resolve question or in was whole part of the Watson standard of review prejudicial. Application appellate may that, occurred, disclose error though it was harmless.25 case, we conclude that in a Accordingly, error in sua noncapital failing instruct, or to instruct on all lesser included fully, offenses and theories thereof which are the evidence must be supported by reviewed under Watson. A conviction of the prejudice exclusively offense charged if, be may reversed of this form of error consequence “after an only cause, Const., examination of the (Cal. entire the evidence” art. including VI, 13), it the defendant appears “reasonably would have ob- probable” § (Watson, tained a more favorable outcome had the error not occurred 818, 836).26 46 Cal.2d above,

As indicated the Court of in the case did not Appeal present to evaluate the erroneous omission of instructions on heat of attempt passion record, evidence, the entire by examining to determine whether including Instead, it was the error affected the reasonably outcome. the court probable California decisions that applied prior defendant’s conviction be requiring reversed unless the resolved the jury omitted heat of necessarily erroneously issue in another context. Because we here overrule the authority hand, disagree 25 Onthe other we with Justice Mosk’s assertion that if the defendant was evidence, any convicted of the offense on failing substantial error in to instruct on a lesser included per premise offense must be harmless se. Justice Mosk’s such error very affects the lesser offense of which the defendant But purpose was not convicted. jurors greater of the rule is to allow the to convict of either or the lesser offense where the might support evidence That the greater acquittal, either. chose the over and that the whether, technically permits greater, evidence conviction of the the question does not resolve cause, Const., VI, (Cal. including 13), “after an examination of the entire the evidence” art. § appears reasonably it probable given would nonetheless have elected the lesser if case, Depending choice. on the may circumstances of an individual such an examination probability way. reveal a reasonable that the error affected outcome in this abrogating 26 In the Sedeño standard of reversal for instructional error on lesser included cases, “fundamental,” “flexible,” noncapital depart though offenses in we from the jurispru 1203, (1993) policy (People dential of stare decisis. v. Latimer 5 Cal.4th 1212-1213 [23 (Latimer).) Cal.Rptr.2d P.2d 858 As other recent decisions of this court demon 611] strate, departure compelled by meaning “miscarriage such our reexamination of the of the VI, (art. 13), justice” of clause of the California Constitution a matter on which we are the § weigh strongly final arbiter. We discern no institutional reliance or societal interests that Latimer, against (E.g., today. supra, p. the new rule we announce 5 Cal.4th at We also reject any may “retroactively” defendant’s that such rule applied contention new not be to his result, any pending process require change other case. Due does not such a since the in appellate liability adopted opinion expands review standards this neither criminal nor (1995) punishment previously (People enhances for a crime committed. 12 Cal.4th Cuevas (Cuevas); City Cal.Rptr.2d 275 P.2d see Bouie v. Columbia of 1697, 1701-1703, 894].) implicate 378 U.S. 352-354 S.Ct. 12 L.Ed.2d Nor does it (Cuevas, any cognizable other reliance interest of individual criminal defendants. 276; cf., e.g., People Cal.Rptr.2d Cal.4th at v. Scott Cal.4th may We conclude that our decision full effect. therefore have retroactive relied, to remand it we deem appropriate the Court Appeal which to determine prejudice that court to permit matter to the Court Appeal by concludes If the Court of Appeal herein. established under principles harmless, then address it should the error was standards that correct (Cahill, raised defendant by appeal. additional issues 478, 510.)

Conclusion insofar as it holds is reversed of the Court Appeal judgment because the heat must be reversed defendant’s murder conviction offense of the lesser included from instructions on issue omitted erroneously another resolved necessarily was manslaughter voluntary for further proceed- remanded to the Court Appeal context. The cause is in this consistent with views ings expressed opinion. J., J., Chin, J., C. concurred. Werdegar,

George, MOSK, J. dissent. I cause, others, reviewing as in many analysis required

In this and, so, the trial court erred if whether court entails consideration of whether its error reversible. I cannot correctly, join do not resolve either question

Because majority in their opinion.

I County of Los Angeles filed in the Court information By Superior attorney charged appellant on behalf of the district People, Breverman quote, Scott Breverman murdered Andreas Suryaatmadja—to . . . murder aforethought and with malice “did willfully, unlawfully, that he did so by personally a human being”—and alleged Suryaatmadja, a firearm. using that, essence, one night, showed the evidence

Trial was by jury. Breverman, man, some at this house in Chatsworth was visited White unclear, that about friends; indeed clear role was it was his own although Ju, Asian- Yoon teenage Kim and two of his friends set upon Hyun eight house; affiliation claiming his walking American as were boys, they past “Chinks,” and other Kim and Ju “Nips,” called they a local street gang, with let them slurs, and finally fists and feet and weapons, beat them with racial the next Kim returned a fair go; night, to his assailants to challenge fight, friends, and of his also brought seven who were along eight teenage Asian-American to back him included his friends boys, up; Suryaatmadja, old; house, who sixteen the no one front of Kim slashed years finding one the tires a silver-blue BMW automobile in the driveway, parked Breverman; which he and his friends to belong began happened withdraw; vehicle; came out Kim Breverman house to check and his friends Breverman to his friends out for a fair challenged bring sharply Breverman alarm and back fight; activated vehicle’s went into system, house; left; returned, Kim and his friends then some minutes later they vehicle; intent on and some of the vandalizing although Suryaatmadja back, rest, shouts, other with hostile started boys hung apparently instruments; sounded; the vehicle with various the alarm from battering house, friends, within the Breverman commenced at Kim and his firing using semiautomatic that was not shoot- 9-millimeter pistol lawfully registered, rounds; fled; house, off four and near to the ing boys leaving drawing vehicle, level, he continued with his arm in a locked firing, position, parallel to the and off an additional ten rounds all ground, finally shooting stopped, told; in the he reloaded the since he shot off process, weapon, apparently hold, more rounds than its could and still had two one magazine remaining, chamber; in the about one in one-hundred magazine eighty-two wounded, feet the head. through shot away, Suryaatmadja lay mortally The that the court ruled evidence was insufficient for first degree superior murder, which the unlawful of a human with malice killing being requires and deliberation. It to instruct the aforethought plus premeditation proceeded murder, murder, on second which including degree jury requires It on unlawful with malice also instructed killing aforethought. manslaugh- ter, as a lesser offense within necessarily greater purportedly so, murder, offense of it including voluntary manslaughter. doing instructed on via the doctrine of self- voluntary manslaughter “imperfect terms, defense,” not, or heat of but sudden statutory “upon quarrel Code, 192, (a)). It as on use (Pen. subd. instructed well personal passion” § of a firearm.

The returned a verdict Breverman of second finding guilty degree murder, and also that he used a firearm therein. finding personally Breverman sentencing court rendered judgment accordingly, superior murder, to life for for 18 to life—15 second years years degree plus prison use of a firearm. years personal All of the concluded that the

The Court of reversed. justices Appeal erred to instruct the failing voluntary manslaughter court superior

181 manslaughter to voluntary in addition heat of on a sudden quarrel a lesser self-defense, manslaughter in effect reasoning via imperfect murder; offense charged the greater included within necessarily offense is, was, an error generally as such the error also concluded they 703 (1974) 10 Cal.3d [112 v. Sedeno People se” under “reversible per to our urge wrote separately of the justices P.2d One Cal.Rptr. 913]. each on bearing question. of decisions reconsideration II under Cali- court erred conclude that superior majority initially

The on a voluntary manslaughter to instruct the jury fornia law by failing- via manslaughter to voluntary in addition or heat of passion sudden quarrel that a trial is their concluding, major premise In so self-defense. imperfect included within necessarily on a lesser offense instruct sua court must sponte is a manslaughter is that Their minor premise offense. greater, offense the greater charged included within necessarily lesser offense (But see is sound. the major premise need not consider whether murder. We minor J., is Brown, 195-202.) That post, dis. pp. opn. because.the is not. premise court the rule that a trial that we relatively recently adopted

It was only included necessarily on a lesser offense instruct the sua jury must sponte Hood v. (People offense. greater charged within a court was 370].) Traditionally, P.2d 449-450 Cal.Rptr. Cal. Criminal Law (5 & an instruction. Witkin Epstein, to such give required Hood, 3587; Cal.3d at Trial, 2926, see v. (2d 1989) People ed. p. § 34, 36-37 decisions]; (1968) 268 Cal.App.2d v. Cooper 450 [citing People [same]; (1964) 228 Cal.App.2d v. Roth Cal.Rptr. 608] [same].) & fn. 2 Cal.Rptr. 582] the harm avoid rule is specifically, prophylactic, purpose Barton (See, e.g., People and “over-acquittal.” “over-conviction” it say, That is Cal.Rptr.2d 195 [47 of a greater defendant guilty finding from aims to prevent one, desire to keep out of a offense, of a lesser only he is though guilty even time, it aims ibid.) At the same (See, e.g., going him from unpunished. offense of a greater defendant not guilty finding from prevent is, fact, of a lesser he guilty even though him letting go unpunished, ibid.) (See, one. e.g., however, court must instruct terms, A trial the rule is limited.

itsBy very when, necessarily when, lesser offense and sua within the offense. Two standards are greater charged applicable. (E.g., 92, 748, v. 665 P.2d People Wolcott 98 Cal.Rptr. 203, 520]; (1996) 52 v. 208 People Wright Cal.App.4th Cal.Rptr.2d 316].) Under the so-called elements” test v. “legal (People Wright, supra, 208), 52 at the lesser is included within Cal.App.4th necessarily p. if, as a matter in their greater respective statutory definitions, law view of of an actor cannot commit the without the lesser greater necessarily committing Wolcott, 98; 34 Cal.3d at 52 People Wright, supra, v. v. (People supra, p. 208). at Under the so-called test “accusatory pleading” Cal.App.4th p. 208), 52 at the lesser is Wright, necessarily v. (People supra, Cal.App.4th p. if, included within the as a matter in greater allegations view of fact of conduct, commit necessar- his actor cannot without describing greater Wolcott, 98; the lesser v. 34 Cal.3d at ily committing (People p. 208). at v. 52 People Wright, supra, p. Cal.App.4th neither the nor the test is Under elements test legal accusatory pleading the greater lesser offense of within manslaughter necessarily offense of murder. of a killing murder was defined statute as the “unlawful Originally, by Code, (Pen. (1872).) human malice For its being, aforethought.” with § defined as the of a human killing “unlawful part, manslaughter similarly (Id., (1872).) malice.” being, without § 1970, definition to include the murder was its statutory expanded a human malice fetus, aforethought.”

“unlawful or with killing being, 1311, 1, Code, (Pen. (a), amended ch. subd. as Stats. by p. § § added.) italics in its Neither in that nor thereafter was year manslaughter expanded include the without malice killing definition to unlawful statutory fetus Indeed, months we held that excluded aforethought. just ago, manslaughter fetus as a v. Dennis (People victim.

Cal.Rptr.2d Moreover, killing murder is defined as an unlawful though statutorily even is defined as an unlaw- malice aforethought manslaughter similarly with (see, understood currently e.g., ful malice as killing aforethought, without Barton, 199-201), are not distin- 12 Cal.4th at they pp. True, it their by contradictory prepositions. appears guished simply of malice aforethought, manslaughter murder is marked presence manslaughter its absence. But the “absence” of malice aforethought not, but rather the the absence of malice aforethought strictly speaking, (id. 199), other, at p. specifically, “circumstances” extrinsic presence or imperfect heat of passion a sudden quarrel voluntary manslaughter, 153; ante, dis. opn. see generally, (ibid.; p. see maj. opn., self-defense 188-189; [stating fn. J., also id. at Kennard, see post, pp. offense including be termed a lesser might manslaughter “voluntary italics)]). (original murder” test, not manslaughter offense of the lesser elements

Under legal murder. That is offense of greater charged included within necessarily definitions, because, statutory their in view of respective as a matter of law man- necessarily committing can indeed commit murder without an actor cannot commit that an actor is not the case Put otherwise: It slaughter. can Such person committing manslaughter. necessarily murder without or devoid of sudden quarrel under circumstances commit murder assuredly a fetus. also do so against He can or self-defense. heat of passion imperfect victim, it such a commits circumstances or against murder under such If he contrary, commits To the manslaughter. not that he necessarily does follow does not do so. that he necessarily it follows test, man-

Likewise, lesser offense of under the accusatory pleading offense charged the greater is not within slaughter necessarily because, of the allegations as" a matter of fact view murder. That is conduct, neces- commit murder without an actor can indeed his describing filed the information committing manslaughter. pertinent part, sarily and with “did willfully, unlawfully, that Breverman charged only below It is not the being.” a human malice murder . . . aforethought Suryaatmadja, cannot commit murder without an actor so conducts himself case that who Such a Quite person manslaughter. opposite. necessarily committing heat of or circumstances devoid of sudden quarrel commits murder under does not that he necessarily self-defense. It follows or passion imperfect (see maj. opn., to the implication commit manslaughter. Contrary majority’s a human ante, is identified as 5), fn. it matters not that his victim at p. under circum- commits murder than a fetus. To He repeat: rather being self- or imperfect or heat of passion stances devoid of sudden quarrel defense. understood, is a currently as manslaughter,

All this is not to deny this very of murder. But offense offense related to the greater lesser Cal.4th 108 Cal.Rptr.2d v. Birks day, related offenses need not instruct on lesser 1073], that a trial court we hold If not do so. we generally may indeed at the defendant’s request, even are to qualify holding, we should do so The do deliberately. majority even make an attempt.1

Ill then conclude that the majority court have erred superior may revers- under California ibly law by failing instruct man- voluntary on a sudden slaughter or heat of in addition quarrel voluntary via manslaughter self-defense. imperfect

I disagree. all, first reason is this: The My court did not err at superior reversibly otherwise. second

My reason is different. It is in the suggested majority’s analysis, but is not therein. It developed follows. consider, addressing question we as a reversibility, general

matter, whether or not the error caused prejudice, which is a taint on simply outcome, trial in the form of an unfavorable effect on the in a meaning, trial, an unfavorable effect on the verdict.

To consider we first choose the prejudice, standard—such as appropriate the “harmless-beyond-a-reasonable-doubt” (Chapman v. California test 18, (1967) 824, 828, 705, 386 U.S. 24 S.Ct. 17 L.Ed.2d 24 A.L.R.3d [87 1065]), which to error violative of the United generally applies States that, self-defense, 1 Inote passing by instructing voluntary in manslaughter imperfect via superior effectively voluntary manslaughter court instructed on quarrel on a sudden friends, heat passion. Common to both including was Breverman’s reaction to Kim and his Suryaatmadja. Voluntary manslaughter quarrel on a sudden or heat of requires provocation that adequate (E.g., (1946) is to arouse a reasonable person. People v. Valentine 121, aroused, 1].) 28 Cal.2d 136-144 P.2d person may (e.g., So such a act in terror [169 45, (1917) People Logan 1121]), ibid.)—not v. 175 Cal. P. revenge (e.g., 49 but not for [164 against teenage boys even group of a different ethnic expensive who vandalize his automo Here, terror, bile. high. they began they Breverman’s emotions doubtless ran But if even in rounds, BMW, evidently revenge, ended in as he standing shot off his last near his his with level, arm in a position, parallel ground. assertedly locked to the The same evidence that supported voluntary manslaughter imperfect assertedly voluntary via self-defense supported evidence, course, manslaughter quarrel passion. rejected on a sudden or heat of That jury, unreasonably. not at all Kennard, consider, Unlike Justice I decline to depth, relationship in detail and in manslaughter statutory between murder and and their respective definitions. I do so because Court, (See parties did not raise the Appeal. issue in the Court of Cal. Rules of rule 29(b)(1).) question surely important escape one. But it will not examination. It is Lee, 21, implicated People (S060352), in granted May currently v. review 1997 which is pending on review.* *Reporter’s Supreme Note: For see opinion Court 20 Cal.4th 47.

185 Constitution; (1956) 46 test v. (People Watson “reasonable-probability” 818, under covers error 243]), usually P.2d which Cal.2d 836-837 [299 law; (1988) test v. Brown (People and the “reasonable-possibility” California 604, 432, 1135]), covers 758 P.2d which Cal.3d 446-448 Cal.Rptr. 46 [250 on the death. bearing error under California law penalty standard, then ask ultimate question chosen the we Having appropriate effect, itself, some- in verbal formulas. We one of two using, prejudice (see at their maj. one majority opinion times do inquire—as point ante, had under the error 177)—whether, at the standard p. question, opn., (1996) 14 the outcome. v. (See, People an unfavorable effect on e.g., Alvarez 155, 385, 234 P.2d reasonable- Cal.4th 926 Cal.Rptr.2d 365] [under [58 799, test]; v. Marshall possibility People 347, P.2d harmless-beyond-a-reasonable- Cal.Rptr.2d 1280] [under test]; Cal.Rptr. doubt Gordon People v. standard]; cf. v. reasonable-probability 251] [under Alvarez, at fn. 38 reasonable-prob- Cal.4th pp. [under of counsel standard for of ineffective assistance ability component prejudice Constitution, VI, and California of United States Amendment violative Constitution, times, I, do the At other we article section inquire—as ante, 178)— (see in their maj. opn., another majority point opinion whether, under would the standard in a more favorable outcome question, (See, resulted in e.g., People have the absence error. Bradford (1997) 14 Cal.4th 929 P.2d Cal.Rptr.2d 544] [under 13 test]; (1996) v. Jackson harmless-beyond-a-reasonable-doubt People 1164, 49, Cal.4th P.2d reasonable- 920 Cal.Rptr.2d [under 610, test]; v. 5 Cal.4th Cal.Rptr.2d Wader probability People test]; cf. Ledesma reasonable-possibility 80] [under (1987) 729 P.2d Cal.Rptr. 839] [under of assist- standard for ineffective reasonable-probability prejudice component Constitution, VI, ance of counsel United violative of States Amendment Constitution, I, 15].) California article section we use the other of formulas is a matter Whether one or the two verbal focus on rhetorical and makes no substantial difference—so as we style long fact that an on the When we so is unfavorable effect outcome. prejudice focus, if recognize we a truth that is Reversal is simple: required deceptively is, error caused effect on the outcome. an unfavorable prejudice, Reversal, however, have not if the absence error would required merely situation, is a taint in a more outcome. In the former there resulted favorable latter, is not. on the trial. In the there bar, that, if the court had to the I even

Turning case believe superior or on a sudden by failing manslaughter quarrel erred to instruct voluntary heat of in addition to via self- voluntary manslaughter imperfect defense, its “error” could not been could not have reversible. “error” have caused That is because it could not caused an have unfavor- prejudice. able effect on the It could affected a verdict finding verdict. have Breverman was not returned guilty voluntary manslaughter—which by It could not have affected the verdict him of second jury. finding guilty murder—which degree was.

As I of the rule a trial court to have explained, purpose requiring instruct sua on a lesser offense included within a necessarily greater offense is to avoid the harm of “over-conviction” “over- here, if the rule had been its not Even would acquittal.” applicable purpose been have frustrated. Breverman was obviously by “over-acquitted” Indeed, he was not it at all. Neither was he “over- jury. acquitted convicted.” the evidence of second murder was more than Certainly, degree sufficient to its verdict under the due clauses of the Four- support process I, teenth Amendment to the United States Constitution and article section of the California Constitution. in the most light evidence Viewing favorable to the a rational could have found that it had surely all People, doubt, killed to find reasonable that Breverman beyond namely, unlawfully (See, with malice v. Rowland aforethought. e.g., People Suryaatmadja 841 P.2d Cal.Rptr.2d 269 [14 sum, ante, 25), (see and unlike the fn. I majority maj. opn., am to conclude that the verdict Breverman finding guilty compelled jury’s trial, second murder—a verdict that was returned after untainted degree not, and could and that was more than sufficient evidence—did supported VI, not, to, reflect, a either under article amount “miscarriage justice,” section 13 of the California Constitution or otherwise.2

IV above, of the Court of For the reasons stated I would reverse judgment and remand the cause to that court without directions to reconsider Appeal reversibility. the question of conclusion, failing on 2 Against my might argued be that a trial court’s error in to instruct it necessarily greater charged a offense would be “nomreversible a lesser offense included within “over-acquit.” But the harm that such

per jury se” the does not “over-convict” or if whenever is, course, threatens, not come “over-acquittal,” and does a failure which of “over-conviction” court, situation, by failing to instruct ground to there is no for reversal. In this the trial pass, above, be may prophylaxis—but prophylaxis proved not to provide as indicated have failed necessary. consider, Kennard, any way, relationship decline to in the between murder Unlike Justice I I do so because manslaughter consequences and its under the United States Constitution. and ante, 1.) (See, fn. Appeal. the did not raise the issue in the Court of parties In California, “the defined as un- J., murder is KENNARD, Dissenting. (Pen. aforethought.” a . . . with malice human killing being, lawful however, Code, kills in the “heat of 187.) passion,” One who intentionally § murder, manslaughter. but voluntary and is not of guilty lacks malice Code, (Pen. § trial, case, murder. At heard jury

In this defendant with charged was killed the victim the to show that defendant tending intentionally evidence evidence, sufficient to heat This if credited jury, of passion. however, court, The trial did manslaughter. a verdict of support voluntary lacks malice that one kills in heat of instruct who jury passion defendant of and therefore not of murder. convicted jury is guilty murder. law, that, the trial

I as a matter state court with agree majority in the heat of killing should have instructed that intentional however, not murder but I with manslaughter. disagree, is passion voluntary conclusion the trial court’s failure to so instruct was not majority’s view, constitutional error when a defendant my charged federal as well. a with murder and there is sufficient evidence conviction for support on failure to instruct on a “heat of voluntary manslaughter passion” theory, to a jury the defendant’s federal constitutional trial theory rights violates of law. rests to due This conclusion process unique relationship murder and in which volun- manslaughter, between voluntary relationship all the elemental facts tary manslaughter necessary support includes heat of conviction for murder the additional elemental fact of plus passion. I

A men insults and threats defendant young shouting group approached retreated his house and men night. his one Defendant inside driveway for his Fearing attacked defendant’s car with sticks and metal rods. safety, the door. The defendant and fired several shots got gun through group at the to flee. Defendant came outside and continued began firing fleeing killing one of them. shooting group, that murder

Defendant was with murder.1 The was instructed it was not aforethought; of an with malice required killing unlawful proof malice, making the instructed that a done in the heat of lacks killing not murder. voluntary manslaughter, killing only It held that trial reversed defendant’s conviction. The Court Appeal manslaughter on voluntary failure to instruct on its own initiative court’s law. heat of error under state reason of was reversible passion degree. are in the second 1 References to “murder" to murder 188

II I with a begin my analysis description between unique relationship murder and an voluntary manslaughter, followed of the federal analysis constitutional of that consequences relationship.

Murder is defined statute as an “unlawful with “malice afore- killing” Code, 187, (Pen. (a).)2 thought.” subd. on the Voluntary manslaughter, § hand, other is an “unlawful “without malice” and killing” a sudden “upon (§ 192), or heat of quarrel or a faith but passion”3 good unreasonable upon 186, belief in the need (1995) for self-defense (People v. Barton 531]). 199 P.2d Cal.Rptr.2d murder,

For malice be or purposes may “It is express implied. express when there is a manifested deliberate intention to take unlawfully away life of a creature. It fellow is when no implied, considerable provocation or when the appears, circumstances attending show an abandoned killing (§ 188.) heart.” Malice malignant malice) is the intent to kill or (express intent to do an act to human dangerous life with conscious of its disregard malice); danger murder is (implied accordingly, proven by showing unlawful either the intent to kill or the intent to killing plus do dangerous act with conscious of its disregard danger. (People v. Saille 820 P.2d malice and an Cal.Rptr.2d intent [“express same”], 1115; to kill are one and the unlawfully v. Swain Cal.4th Cal.Rptr.2d

When an unlawful that would otherwise be a murder is done in the killing heat of malice is absent and the passion, man- killing only voluntary malice, however, To establish the absence of it slaughter. is not necessary the absence of the mental states prove used to define malice—the intent to kill or the intent to do an act to human life dangerous with conscious of its disregard absence of malice be shown in this danger. Although may it be way, also shown an additional elemental fact: that the may by proving defendant, kill, even acted in the heat though intending of passion. the intentional results from a sudden heat killing quarrel “[W]hen induced by the killer lacks malice and the passion adequate provocation,” Saille, crime committed is voluntary manslaughter. (People Cal.3d at of heat of the absence establishes presence malice even when one of the mental states for murder is necessary present.

Thus, matter, crime as functional the elemental facts with proving a subset of the elemental facts of the greater punishment—murder—are statutory 2 Further references are to the Code. Penal passion” statutory language “upon quarrel 3 Iuse the term “heat of to refer to the a sudden (§ (a).) passion.” or heat of subd.

189 Proof of the manslaughter. the lesser crime with punishment—voluntary of an additional elemental facts of crime of murder proof elemental the plus the of (heat voluntary manslaughter. of establishes crime fact passion) is unlike the murder and voluntary manslaughter The between relationship offense, and lesser included greater between the offense typical relationship all of the of the offense encompass the elemental facts greater which reversed, Here, of offense. the is elemental facts the lesser relationship encompass facts the lesser crime of voluntary manslaughter the elemental of elemental facts of the crime of murder.4 greater the the of this relation- are federal constitutional consequences unique What murder and voluntary manslaughter? between ship the federal Constitution a defendant to have guarantees right jury The he of the of the of which is decide the existence of all elements offense convicted. As I “The Sixth Amendment to federal recently explained: determine, to a ‘gives Constitution a criminal defendant the have right jury doubt, crime a reasonable his of element of the with guilt every beyond charged.’ (United which he is States v. Gaudin 515 U.S. S.Ct. 132 L.Ed.2d ‘constitutional responsibil- jury’s Gaudin, court to the facts said in includes the law

ity,’ high applying is, each “ulti- determine existence of element of crime—‘that [the] (Id. 514-515.)” mate” or “elemental” needed to convict. at pp. fact[s]’ v. Flood 18 Cal.4th (People Cal.Rptr.2d Kennard, (dis. J.); of see also id. at opn. (maj. opn.).) convict, In order to make fact needed to finding a each elemental crime. must of course instructed elements For be on the jury fully reason, offense, instructions that omit or misdescribe an element of the are from factual constitu- preventing making necessary finding, Flood, defective. tionally (People [“The directed verdicts extends to instruc- prohibition against for the prosecution failed effectively tions that from finding prevent prosecution doubt.”].) element of the crime reasonable beyond prove particular the manner be- relationship Given in which California has structured the of manslaughter, murder and definition malice voluntary complete tween intent to conscious the intent kill or the do a act with dangerous its both heat and unrea- the absence disregard danger plus Where, here, as is sufficient of heat of sonable self-defense. there evidence murder, 4 Indeed, voluntary manslaughter might including be a lesser termed offense murder, all facts although carries a than it includes of the elemental penalty it lesser murder. verdict, passion support voluntary murder manslaughter instructions that fail to inform the it not find the jury may defendant guilty murder if heat is are passion present instructions on the element incomplete of malice.5

The United States Court’s Supreme (1975) decision in v. Mullaney Wilbur 1881, 421 U.S. 684 S.Ct. 44 L.Ed.2d this [95 conclusion. At supports 508] issue there was Maine’s law of murder and which like Cali- manslaughter, fornia’s defined murder as an unlawful with malice killing aforethought, defined malice as an intentional in the killing absence of provocation, (Id. defined as an manslaughter intentional malice. killing without at pp. 684-687, 696-698, 1882-1884, 1888-1889, 703 S.Ct. 1892].) As in at pp. [95 California, murder and in Maine manslaughter were of common composed (id. elemental facts at 1883]) 685 S.Ct. at p. for p. except manslaughter’s [95 additional elemental fact of “heat of (id. on sudden passion at provocation” 703 at 1892]). S.Ct. One p. of due p. [95 is that the state requirement process has the burden of a reasonable doubt proving beyond elemental fact every to establish the necessary (Id. offense. at 1883].) 685 S.Ct. at p. p. [95 Maine, however, sought the defendant the put upon buirden of proving of heat of presence passion. what mattered Declaring was “substance (id. rather than . . . formalism” at at 1890]), 699 S.Ct. p. high [95 that, court concluded given Maine had structured between relationship murder and due manslaughter, the state to treat process required the absence of heat of as of the definition passion part of murder and to assume the burden of that the defendant did not act in the proving heat of just passion, (Id. as the 698, state must crime. other element of the prove every 704 pp. 1889, 1892].) S.Ct. at here the absence pp. Similarly, [95 of heat of passion must be treated as of the definition of murder part instruction jury purposes.

Another avenue of federal constitutional also leads to this con- analysis clusion. Due fundamental fairness in the process requires criminal proce- dures which a defendant is (United convicted of a crime. States v. (1982) 3440, 3449, 458 U.S. 872 S.Ct. 73 Valenzuela-Bernal [102 L.Ed.2d that a guarantees criminal defendant will be process 1193] [“Due treated with ‘that fundamental fairness essential to the very concept ”]; (1967) v. Texas justice.’ Spencer 385 U.S. S.Ct. 653, 17 L.Ed.2d Due Process Clause guarantees fundamental 606] [“the trial”]; criminal Quartermain elements of fairness in a 16 Cal.4th Cal.Rptr.2d due particular, fundamental process fairness the determination of guilt “ensure[s] 807, 818, trial.” (Albright v. Oliver 510 U.S. S.Ct. (conc. J.).) L.Ed.2d opn. Kennedy, 5 Here, correctly jury the trial court did instruct on the unreasonable self-defense form of

voluntary manslaughter. voluntary above, murder between the relationship I have noted

As with is consistent of heat of passion presence manslaughter unique. verdict, but a murder that would support and other facts the mental state has chosen If a state a murder verdict. heat of precludes nonetheless X fashion, facts plus if the finds jury crimes such that in this to structure its finds facts than if the crime with a greater punishment Y it is a different there is evidence Z, (at least when unfair fundamentally it is X Y plus plus it may if Z is record) present not to inform of Z in the is, an cannot omit the state crime. That defendant of the greater the convict the from jury manslaughter thereby prevent voluntary instruction on make that would heat of circumstance of passion the additional determining murder; to have has a right of the defendant innocent factually the defendant circumstance, is entirely which additional decide whether that the jury murder, is defendant of to convict the the facts necessary consistent with present. the defendant the real very possibility omit the instruction creates

To view, which, he is factually in the jury’s of an offense of will be convicted trial, hard to imagine and it is innocent under evidence presented to is manifestly unjust unfair than that. It more fundamentally anything the elements of voluntary ignorance the state to use the jury’s permit had it known jury, of murder when to convict defendant manslaughter the additional circumstance could have found of voluntary manslaughter, liable for only instead made the defendant heat of that would have passion fairness in fails to ensure fundamental that lesser crime. Such a procedure is that at trial. The crucial consideration the determination of guilt circumstance, consistent with is an additional of heat of presence passion verdict, establishes that not facts a murder elemental required support for murder. liability but manslaughter liability voluntary precludes Ill error in failing constitutional whether the federal

Before analyzing in the heat malice it occurs that a lacks when killing instruct case, conclusion that in this I address majority’s was harmless passion ante, 170, fn. (Maj. opn., not been raised parties. the issue has brief, are the who People, In their 19.) The is mistaken. majority opening this court and here, is before that the issue correctly recognized petitioners discussed they the course of pages addressed it at Over length. the misdescription the error here was conclude that we would possibility the following in acknowledged murder. They element of the offense of an of the elements to a misdescription the error here amounted that if words error to harmless murder, subject error a federal constitutional it would be 824, (1967) 386 U.S. 18 S.Ct. under v. analysis Chapman California L.Ed.2d 24 A.L.R.3d “Where the omission of an instruction 1065]: on an element lesser included offense results in misinstruction applicable offense, error the standard of harmless pronounced conviction greater determines that should this Court Chapman apply.” “[I]f California on an there error in this case which resulted in the misinstruction was offense, this Court element of the substantive submits greater respondent the omitted lesser should address what harmless error standard where applies do not the elements of the substantive included offense instructions modify the defendant convicted.” The further argued offense for which that, court’s failure to instruct the that a killing even if the trial amounts to heat of lacks malice and is only voluntary manslaughter that is to federal constitu- of an element of murder subject misdescription review, error this conclusion should not over carry tional harmless failures to instruct on lesser included offenses for crimes run-of-the-mill murder and In the words: “Even if this other than manslaughter. People’s that, case, in this the trial court’s omission of instructions Court concludes in the the heat of of resulted theory voluntary manslaughter on passion murder, a misinstruction on the element of malice for second such degree in other lesser included offense would not finding necessarily apply contexts.” brief. He asserted that the

Defendant addressed this issue in his answering malice that a in the heat of lacks killing passion failure to instruct jury violated his federal constitutional manslaughter and is at most voluntary and to a trial “and the jury requirement prosecution to due rights process the crime a reason- charged beyond each fact constitute necessary prove Constitution]).” Amendment Defend- (Fourteenth the federal able doubt [to 515 U.S. 506 ant relied on United States Gaudin specifically He 444], a case above. my analysis S.Ct. 132 L.Ed.2d underpinning trial and Fifth and Sixth Amendment a guarantee jury proof stated: “The . . . as to each element of a criminal offense. a reasonable doubt beyond on any there is a failure to instruct Reversal is therefore where compelled case, the failure to a crime.” He continued: “In this element of component an element of heat of omitted manslaughter effectively instruct on malice from negating and removed the issue of provocation the offense statement of the issue. Defend- It is hard to a more succinct imagine jury.”6 that under United States controlling Supreme ant then correctly explained unconstitutionally provocation the trial court “removed issue 6 Defendant’s claim that being jury” that the convicted him of murder without negating malice from the is a claim however, majority, denies statutory element of malice. The fully instructed on the claim, the sentence from concluding that the word “offense” in presented defendant has this murder, voluntary manslaughter, and that text refers to quoted defendant’s brief in the voluntary manslaughter. (Maj. on only complaining incomplete instructions defendant is (which below) the failure to com- Court I discuss on precedent rely on the of the offense of defendant is con- instruct elements which pletely rather than a victed cannot be cured by factfinding by judge subsequent “The United States Court is clear that a verdict rendered in jury: Supreme the absence instructions and findings regarding component elements of the because defective charge irremediably post-verdict [a] fact-finder to correct the would be ‘the en- deficiency wrong attempting ” tity.’ is it

Nor that neither raised the issue in the Court of surprising party At that the case was controlled the well-established state Appeal. stage, law v. Sedeno 10 Cal.3d 703 precedent People Cal.Rptr. and its It would be that a progeny. pointless require party entitled to under settled state law announced this court prevail long ago by must to the Court of conceivable alternative federal present Appeal every constitutional ground its on the support position purely hypothetical that we will later possibility grant to review the opposing party’s petition case, discard our settled and rule precedent, against prevailing party the state law To do so would question. burden on both impose purposeless and the Courts of for the Court of parties in such case Appeal, Appeal would, after its time wasting those reading arguments, invariably ignore them in to and adhering settled law of this court. For a similar applying reason, the in this case did not raise in the Court of the issue Appeal the standard majority decides—whether of harmless error review this court announced in Sedeño should be To do so would have been changed. the Court of equally pointless, given inevitable adherence to Appeal’s Sedeño.

We have never in as the of required perfection briefing recognizing price Defendant, a defendant’s constitutional rights. in this responding party court a favorable the Court of defending judgment by decided Appeal solely on state grounds, law more than raised the issue of whether adequately to instruct on heat failing of was federal constitutional error passion resulting in instructions on the elements murder. incomplete of Even though remands the case for majority further it remains a grave proceedings, ante, 169, opn., at p. illogical, fn. This conclusion is erroneous and for the offense murder, convicted, only defendant refers to can be the offense of which he was and not voluntary manslaughter, danger jury an offense posed by of which he was not convicted. The omitting instructions unjustly an element of the offense is that the defendant will be convicted jury finding of an offense without the present. that all its elements are Defendants thus can be omitting they harmed instructions an element of an offense if are convicted of the omitting offense. Because an element of an offense of which a defendant been has not case, defendant, (in manslaughter) majority’s convicted this cannot harm the alteration turns defendant’s sentence into nonsense. claim and him deny defendant’s recognize for this court to refuse injustice his constitutional rights.

IV of instructions on heat passion concluded that the failure to give Having error, of turn to the whether federal constitutional I now question was an element of an or omitting misdescribing error harmless. Instructions was of v. Chapman error under test analysis offense are to harmless subject (1993) 508 v. Louisiana as Sullivan 386 U.S. California, supra, applied Flood, supra, v. (People S.Ct. 124 L.Ed.2d U.S. 275 182]. Kennard, accord, J.).) The 470, 503-507; (dis. id. at opn. Cal.4th error, whether, without the in a trial that occurred “is not essential inquiry rendered, the guilty but whether have been surely verdict would guilty to the error.” unattributable surely rendered in this trial was actually verdict 2081], Louisiana, S.Ct. (Sullivan 508 U.S. v. italics.) original it be concluded may circumstances which

The three most common (1) are has jury to the error” when the verdict is unattributable “surely under other given the omitted factual question properly resolved necessarily is the func- instructions, has made some factual finding when (because no on the omitted factual question tional of a finding equivalent finding find found without also could the fact actually rational jury admitted conceded affirmatively or fact), the defendant omitted when Flood, (People the omitted factual question. Kennard, these J.).) None of 504-507; (dis. id. at opn. pp. did not resolve question here. The jury circumstances is present of the instructions under any acted in the heat passion whether defendant the functional equivalent that was nor did the decide any question given, Defendant under the heat of passion. defendant acted whether deciding acted in the heat of that he had not concede affirmatively did not admit passion. reason of voluntary manslaughter instruction on

The omission of an therefore harmless, and defendant’s conviction heat of unconstitutional.7

Conclusion of murder was never case, defendant guilty that found In this in the heat of passion had acted defendant asked to determine whether voluntary stated, relationship between murder unique this case turns on 7 As I earlier should be of what standard question address the no occasion to manslaughter. presents It sponte sua on to instruct a trial court’s failure general to determine whether applied in offense is harmless. typical lesser included therefore lacked malice and was not of murder but guilty voluntary There was sufficient evidence to the conclusion that manslaughter. support defendant had acted in the heat of I affirm the Accordingly, would passion. of the Court of judgment defendant’s conviction. Appeal reversing BROWN, J., Dissenting. that the trial majority, court erred in to instruct sua concluding failing on a heat of directs the

sponte voluntary manslaughter passion theory, Court of to reconsider the of that Appeal error. prejudicial impact my view, all, Therefore, the trial court did not err at reversibly otherwise. I dissent. respectfully

I 703, The majority (1974) cites v. Sedeno People 10 Cal.3d 715-716 [112 1, (Sedeno), 518 P.2d Cal.Rptr. for the that trial courts have proposition a “sua sponte duty instruct on lesser included offenses.” necessarily (Maj. ante, decision, 148.) opn., Following today’s citation Sedeño proper for this Sedeno, seemingly straightforward will read as proposition follows: 715-716, 10 Cal.3d at pages overruled on other in grounds v. People 668, Flannel (1979) 1], Cal.3d 684-685 603 P.2d Cal.Rptr. footnote 12 (abrogating Sedeno's instructions must be requirement given whenever any evidence is no matter presented, weak) how and over- ruled on other 142, 163, grounds (1998) v. Breverman People footnote 10 Sedeno's (abrogating characterization of heat of as a defense) and Breverman, overruled on other grounds v. People supra, 19 Cal.4th at 164-178 pages Sedeno's standard (abrogating for determining whether the failure to instruct is prejudicial).1

This to be ought our first clue.

The time is long overdue for a critical reexamination of the court’s lesser offense task, commenced jurisprudence. we have Today, this important unanimously overruling People (1984) 35 Cal.3d Geiger 510 [199 674 P.2d 1055], 50 A.L.R.4th Cal.Rptr. which addressed lesser (See related offenses. v. Birks People 19 Cal.4th 108 Cal.Rptr.2d 1073].) 960 P.2d I that decision. I write in this case applaud separately urge similar reexamination for lesser included offenses. 1 Indeed, Sedeño itself stringent determining overruled an even more standard for whether Sedeno, 720-721, (See prejudicial. failure to instruct is pp. overruling 10 Cal.3d at v. Modesto Cal.Rptr. 382 P.2d I wonder why, if the sua important say, instruction rule is as prior as some of our cases seem to we made have now the failure to instruct on lesser per included offenses all but harmless se. (See Mosk, J., ante, opn. dis. p. at 186 & fn.

II little is left of Sed- its what Throughout opinion, majority clings sua that courts must instruct its trial eño—namely, requirement sponte freely admitting lesser included offenses evidence. While supported “[sjeveral . . attack the heart the Sedeño arguments that . People’s ante, 9) and “several rule in all at fn. that (maj. p. its applications” opn., for the instructional of their a distaste sua arguments imply general sponte 6), the stead- majority rule for lesser included offenses” at fn. p. {id. analytical resists serious examination of Sedeño's core fastly any underpin- Instead, the fact the refuge seeks in majority People nings. repeatedly have made no contention “that California rule sua requiring sponte offenses be abro- entirely instructions on lesser should necessarily on a rule such instructions gated requiring party’s favor 6; ante, also at fn. see id. at fn. 9 pp. request.” (Maj. opn., p. [“Of course, indicated, the do not that we as have ask previously People we se.”]; at fn. 17 we stress again overrule Sedeño id. per p. [“Finally, case, in this no the Sedeño instructional general objection raise rule, its sua sponte aspect.”].) including resort, court role is and guidance

As court of last to provide whose courts, cannot cloak ourselves our lower we procedures simply workable “' That “a flexible one which in the doctrine of stare decisis. doctrine from, reconsider, and our own prior this court to ultimately depart permits ’ ” Birks, 19 Cal.4th at p. in an case.” v. {People precedent appropriate '“ 117.) certainty, ‘is based on the predictability “It... assumption ” are . . . objectives legal system the law stability major ante, (Id. (see 116.) citation to demonstrates amply at As “full” Sedeño p. 195), our offense describe lesser included adjectives scarcely at these p. unpredictability, which has been plagued by uncertainty, jurisprudence, “ ‘ “ does indeed serve the doctrine stare instability. ‘[Although decisis] [of values, error from it should not shield court-created nevertheless important Birks, Cal.4th {People p. correction.”” [Citation.]” where, here, true as the error is one of constitutional This is particularly mistake. remedy as to which we can “only [Citations.]” interpretation, {Ibid.) below, no basis sua instruction rule finds

As I Sedeño's explain identi- do the “broader interests” our state Constitution. Nor whatsoever in ante, To the 155) its retention. warrant fied by majority (maj. opn., to the our very underlying system the rule runs counter contrary, premises circumstances, criminal Under to rethink justice. these we have obligation the requirement.2

in sentence, In a found in some of our deci- single language quoting prior sions, “[cjases observes that have that the majority tepidly suggested arises, of sua instructions other from the requirement among things, sponte defendant’s under the California Constitution ‘to have the deter- right ” ante, mine material issue at every the evidence.’ presented by (Maj. opn., 155, 519, 35 Cal.3d at p. citing People Geiger, v. v. supra, p. People 307, 436, (1982) 311], Wickersham 32 Cal.3d 650 P.2d Cal.Rptr. Sedeno, 720, Modesto, 10 Cal.3d at supra, v. Cal.2d at p. People supra, 59 p. 730.) all four Significantly, cases cited are cases this court majority has largely The lesser related offense instruction rule repudiated. established 510, Birks, in Geiger, supra, 35 Cal.3d was overruled in v. People supra, 19 Cal.4th 108. The characterization of unreasonable self-defense as defense Wickersham, 329, v. People supra, Cal.3d at was overruled in p. 186, 569, v. Barton Cal.Rptr.2d Sedeno, 703, This court has overruled 531]. 10 Cal.3d on three ante, different (See 1-2.) at points. And the standard for pp. reversal estab- Modesto, 722, Sedeno, lished in People v. Cal.2d supra, 59 was overruled in ante, 195, (See 1.) 703. at fn. p. where in our state Exactly Constitution the so-called to sua “right” sponte fact, instructions on lesser included offenses is to be found is unclear. In as ante, (see later majority acknowledges 165), at maj. opn., p. analyses Sedeño Modesto are so that it is not even clear cursory whether we were on state or federal relying constitutional the same true of principles; Wickersham. The fourth case cited by majority, People Geiger, supra, 35 Cal.3d at describes the page as “an incident of due cryptically right however, under the California process Constitution.” Once again, exactly what it is about our state Constitution’s due clause that sua process requires instructions on lesser included sponte offenses remains a mystery. ante, As the majority concedes in a grudgingly footnote at (maj. opn., p. 17), fn. as stated that early we reasons must exist ‘cogent “[a]s minimum, 2 Ata ought every theory bare we not to extend sponte the sua instruction rule “to ante, lesser support (Maj. offense that finds rational in the opn., [a included] evidence.” added.) p. People’s proposal—that italics trial courts need instruct sua theory on the of a lesser included offense most consistent with the evidence and the line of Indeed, pursued eminently defense at trial—is Supreme reasonable. the United States Court’s 555], decision in Schad v. 501 U.S. 624 S.Ct. 115 L.Ed.2d Arizona ante, suggests (See precisely approach. maj. such an opn., fn. will of the state Constitution court in construing provision before a state of the United Court construction Supreme from the placed depart Constitution.’ in the federal [Citations.]” States on a similar provision 326, 336, 801 353 (1990) Cal.Rptr. (Raven v. Deukmejian [276 (1997) 16 1077]; Lungren Pediatrics v. Academy see also American P.2d 210, (dis. 307, opn. 424-427 940 Cal.4th Cal.Rptr.2d [66 Brown, decisions “leave substantial Court’s J.).) The United States Supreme to lesser included any confers right doubt that the federal Constitution for no basis whatever cases. instructions in They provide offense noncapital ... such instructions that the federal charter would require a conclusion 168, italics; ante, also see at original motion.” (Maj. opn., p. the court’s own 351, court federal (7th 1989) 867 F.2d Kubat v. Thieret Cir. [“No on lesser included to instruct sponte on trial a sua judges duty has imposed such a rule offenses, that the the district court wisdom and we with agree be would questionable.”].) “ ” from majority departing offered by

The only ‘cogent reason[]’ that “the bald assertion decisions is its the United States Court’s Supreme on lesser to instructions California approach reasons for the long-established . been law . . have a matter of state constitutional included offenses . . . as 169, ante, 17.) fn. (Maj. opn., p. forth at in our decisions.”3 length set challenge I and low for such explanation. I searched high Where? have can be found. where it exactly to to majority point rule is included offense instruction not exist. The lesser In it does reality, is a court- it constitutional law. Specifically, creature of statutory, (section Penal Code section 1159 created designed implement procedure ante, at p. to a footnote. 1159), (Maj. opn., the majority relegates a statute 1872, . . . 1159, that 166, enacted in provides “[t]he fn. Section offense, commission of which defendant guilty any find the may or of an attempt he is charged, in that with which included necessarily turn, 1159, on an even earlier based commit the offense.” Section (See either law, party. on the request for such instructions which provided 303; id., 456, decisions of this 308.) Early p. ch. p. § Stats. § not be “a will held that judgment consistently section 1159 court interpreting crime as to a lesser had not instructed the trial court because reversed had requested one unless charged, in the greater defendant P. Cal. (1904) 142 v. (People Bailey [76 be so instructed.” the jury Birles, may suggests that “stare decisis court People this 3 In v. ‘ ’ retain, constitutional purposes, for California “cogent ... provide reason[]” established, odds with federal subsequently appears at principle even if principle once grounded. As rule- is itself well extent the state agree, but to the jurisprudence.” I on lesser text, to instruct sua requiring trial courts the California rule explained in the category. in this does not fall included offenses added, 49], 322]; (1902) italics 135 Cal. 331 P. citing People v. Wilson [67 (1901) 57]; Hite (1896) v. 135 Cal. 76 P. v. People People Barney [67 41]; 243]; (1892) Cal. 554 P. v. McNutt 93 Cal. 658 P. People [47 44]; v. Guidice 73 Cal. 226 P. Franklin 70 Cal. People P. in a case that did not cite section and contained no whatsoever, constitutional this court this analysis overturned summarily extensive of case The sum body law. total of our was as follows: analysis [i.e., cases this establishing rule the to instruct on general duty “[T]he of the general law relevant to issues raised the are in principles evidence] conflict with another line of cases that hold that it is not error for the court motion, to fail to instruct on lesser included offenses on its own even though such an instruction would be Bailey evidence. v. supported by (People (1904) 49]; 57]; 142 Cal. 434 (1901) P. v. Hite 135 Cal. 76 P. People [76 [67 797]; (1886) v. Franklin 70 Cal. 641 P. People (1963) v. Smith People [11 225, 719]; 223 (1957) 237 Cal.App.2d v. Calderon 155 Cal.Rptr. People [35 526, 498]; (1956) 530 P.2d Cal.App.2d v. Williams 141 [318 849, 853 P.2d Cal.App.2d We believe that there is no basis for [297 such an to the exception general rule. to the extent that the Accordingly, offenses, cases rule foregoing for lesser included are support special they 444, 618, overruled.” (1969) v. Hood 1 (People Cal.3d 449-450 Cal.Rptr. [82 370]; Mosk, J., ante, 462 P.2d see also dis. of opn. 181 was p. [“It relatively recently we rule that a trial court must instruct the adopted sua on a lesser offense sponte necessarily greater within charged offense. a court was not Traditionally, give required [Citation.] an [Citations.]”].) such instruction. so,

And of through our “constitutional” auspices judicial alchemy, And, to sua right instructions on lesser included offenses bom. sponte offices, the through similar concludes it to be continued. I majority ought think don’t so.

IV Apparently recognizing of our case law on the constitu- vacuity prior issue, tional hastens to add that “we stressed majority have consistently the broader interests served the sua instructional mle. As have we said, insofar as the to instmct duty applies regardless parties’ requests it objections, or mistakes’ of either prevents ‘strategy, ignorance, choice,’ from party jury with ‘unwarranted presenting all-or-nothing ‘a verdict ... no harsher or more lenient than the encourages evidence 324, (Wickersham, added), merits’ 32 Cal.3d at italics and thus supra, p. 200 (.Barton, ‘truth-ascertainment function’ jury’s

protects 186, 196). ‘These reflect for the only] rights persons concern policies [not accused of for the overall administration of justice.’ crimes also] [but (Wickersham, ante, 324.)” Cal.3d at (Maj. 32 opn., p. means fundamentally

This sounds nice. But what does it mean? It we very distrust the Such distrust runs counter to adversary process. “[t]he of our is that criminal adversary system justice[, partisan premise which] of a case will best ultimate advocacy objective both sides promote York that the be and the innocent free.” v. New guilty go (Herring convicted 2550, 2555, 593]; (1975) 422 U.S. S.Ct. 45 L.Ed.2d see also 862 [95 P.2d (1996) re Cal.4th Visciotti 926 Cal.Rptr.2d 987] Brown, words, adver- (dis. J.).) “In other ‘The assumes that system opn. and fair- sarial will advance the interest in truth testing ultimately public ” ness.’ v. (People Cal.Rptr. Bloom Mosk, J.), County and dis. Polk (cone, opn. quoting 445, 449-450, 509], Dodson 70 L.Ed.2d U.S. S.Ct. added.) in a concrete evidence that the adversary italics Absent process has, fact, Visciotti, re 14 (see, case in broken down e.g., supra, given Brown, J.)), in the (dis. Cal.4th at of I decline to indulge 362-366 pp. opn. across-the-board to the majority’s assumption contrary. the sua that at the time cases first articulated

It is worth our noting prior rule, of a to the efficacy instruction there was more of reason question sponte counsel the because the of criminal defense adversary performance process (See v. to the same level of as it is scrutiny today. People was subjected 863, 460, P.2d (1963) 60 464 386 Cal.Rptr. Ibarra Cal.2d [34 487] [To of counsel must obtain relief based on ineffective assistance appear “[i]t a of to a ‘farce or counsel’s lack reduced trial diligence competence 412, (1979) Cal.3d [Citations.]”], overruled v. 23 People Pope sham.’ 859, Now, 732, 2 A.L.R.4th with 421-426 590 P.2d Cal.Rptr. [152 both on direct appeal of defense counsel’s heightened scrutiny performance, a no need for instruc and in habeas there is sua sponte corpus proceedings, Indeed, rule to error. to continue attorney requirement tion guard against ” “ it into halls’ turn our courts only very ‘gambling serves Barton, 204.) For 12 at to close v. Cal.4th (People p. down. designed observe, his a as the rule allows defendant pursue example, People inconsistent, other, defense, line of remain silent about strongest potentially evidence, then, if unsuccessful on primary defenses and supported by defense, (See v. Guiuan People for the first time on appeal. complain 239, 558, (conc, and P.2d (1998) 18 Cal.4th 578 957 Cal.Rptr.2d 928] [76 Brown, (1996) 14 Cal.4th J.), People Prettyman of v. dis. opn. quoting Brown, J.) dis. (conc, 926 Cal.Rptr.2d opn. 293 1013]

201 sua for instructions little to [Generally, improve quest “do[] in the trial for courts while justice frequently generating argument [Citation.]”]; reversal on cf. Cowan v. Court appeal. Superior (cone, Cal.4th 926 P.2d and dis. Cal.Rptr.2d opn. 438] Brown, J.) a defendant to raise statute limitations defense [permitting for the first time on appeal “encourage[s] gamesmanship”].) problem has been exacerbated recent of lesser offenses and by proliferation the attendant difficulties in constitutes an “included” what determining J., (See Mosk, ante, offense. dis. at opn. pp. [arguing related, included, murder]; is a lesser not a manslaughter lesser offense of but see v. Watson People Cal.App.3d Cal.Rptr. established” treatment of [chronicling “firmly as lesser manslaughter murder].) included offense of do, as I criminal

Trusting, our I adversary system justice, would adopt offenses, the federal rule instructions on lesser included governing which is well summarized in (D.C. 1969) Walker v. United States Cir. 418 F.2d 1116. “In general the trial should judge withhold lesser included charging [a] it, offense unless one of the since that is not parties requests charge trials, resolved, inevitably in our but is an best required issue in our adversary system, by counsel to decide on tactics. If counsel ask permitting instruction, lesser-included-offense it should be freely given. [Citation.] counsel, If it is not it is omitted the trial requested by properly judge, should not be initiated certainly after summations are com- judge pleted, (Id. omitted.) in an extreme case.” except possibly fn. p. view, Such a rule is consistent with this court’s correct— early—and, my ante, 199; (See Birks, treatment of the issue. cf. Cal.4th at 31(c) 126 identical” to rule pp. “nearly [Section the Federal (18 U.S.C.), Rules of Criminal Procedure federal governing rule, and “there is no reason to assume our statute has different any purpose, broader any 31(c)” than rule as construed meaning, United States Court.].) A rule is also Supreme consistent with the result request-based Barton, reached in our recent decision in v. supra, where prosecution the instruction at issue be requested given.4 (Barton, at p. 4 Although agree I that the parties’ implicitly briefs at least raise the issue addressed in addressed, cited,

Justice dissenting opinion, party Mullaney Kennard’s neither has or even 508], Wilbur 421 U.S. point. S.Ct. L.Ed.2d the seminal case on the issue, briefing Since this court supplemental has ordered on the I decline to address it in note, however, Mullaney, detail. I do Supreme that the United States Court’s decision in area, grants 421 U.S. the states expressly requiring considerable latitude in this (id. 1892]) passion that the heat of “properly presented” p. p. issue be S.Ct. at “ ” expressly upholding requirements state that a present law defendant ‘some evidence’ 701-702, (id. 1891]). pp. may the issue fn. 28 S.Ct. at It be that a heat well

V above, the judgment I would reverse For the reasons discussed to address that court with directions and remand this case to Court of Appeal defendant on appeal. issues raised remaining requests defendant Mullaney and until a purposes unless presented for properly issue is not * (cone. opn. (Cf. p. S.Ct. at id. at 704 & fn. the issue. instructions on object the defendant’s failure J.) any point made [noting that the state had not Rehnquist, error from might prevent the exception . . . “making objection in the trial court where occurring”].) ever

Case Details

Case Name: People v. Breverman

Court Name: California Supreme Court

Date Published: Aug 31, 1998

Citation: 960 P.2d 1094

Docket Number: S058721

Court Abbreviation: Cal.