Lead Opinion
Opinion
The sole question presented in this case is whether the Court of Appeal erred in concluding that even though the evidence was sufficient to support a conviction of second degree murder (Pen. Code, § 187),
The Court of Appeal held that defendant’s request for a voluntary manslaughter instruction was not invited error which precluded his appellate claim, It also held that the evidence was not sufficient to establish that defendant acted under provocation by the victim and thus did not support a conviction of voluntary manslaughter. Finally the court held that, because the evidence warranted and the jury might have convicted defendant of involuntary manslaughter had an instruction on misdemeanor manslaughter (§ 192, subd. (b)) been given, the error in permitting the jury to return a voluntary manslaughter verdict was not favorable to defendant within the reasoning of People v. Powell (1949)
In these circumstances Powell does apply. If there was error in instructing on voluntary manslaughter, that error was favorable to defendant, as was any error in returning a verdict of voluntary manslaughter. Defendant may not complain on appeal about errors favorable to him.
We shall, therefore, reverse the judgment of the Court of Appeal.
I
Trial and Conviction
The tragic events which led to this conviction occurred after defendant and the victim, his wife Mee Nor, hosted a Chinese New Year’s party in their home on February 14, 1991.
Bella had only one small drink. Defendant drank throughout the evening. He became emotional and told Bella he had lost his job. He appeared depressed. As the evening progressed defendant became less coherent, his eyelids drooped, and he began to nod. He tried but was unable to stand and escort Bella to the door when Bella left shortly before the shooting. The cognac bottle was empty or almost empty at the end of dinner.
After Bella left, 12-year-old Mary saw her parents arguing and pushing each other. The couple argued almost daily, but on this occasion their voices were low and soft and Mary could not hear what they argued about. Defendant appeared different to Mary, as if he were “possessed by a spirit.” He had a blank stare and was staggering.
Defendant went to the bedroom, staggering and falling against the wall, and returned two or three minutes later with his handgun, a .357 magnum Smith & Wesson. He pulled Mee Nor from the kitchen sink, where she was washing dishes, into the hallway, where the couple continued to push each other with the gun between them. Mary went back to her bedroom, heard her parents arguing, and then heard a shot. When she came out of her room, she saw her father holding Mee Nor who was lying on the floor, begging her not to die. The gun was on the floor. Mee Nor had died instantly from a contact or near contact gunshot to the head just above her eye. Defendant’s eyeglasses and the empty cognac bottle were found on the dining table. Each had blood on them. At 2:20 a.m. on February 15, the day after the shooting, defendant had a blood-alcohol level of .26 percent.
An expert testified that at the time of the shooting defendant’s blood-alcohol level was between .33 and .39 percent.
Defendant was charged with murder. The information also alleged that in the commission of the offense he had used a firearm (§ 12022.5, subd. (a)) and that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(8). At the close of the evidence the jury was instructed on murder.
Both the prosecution and the defense requested instructions on voluntary manslaughter. The trial court instructed the jury that voluntary intoxication could negate any specific intent or mental element of murder or voluntary manslaughter. Subsequently, in defining voluntary manslaughter the court instructed that if malice was lacking, an unlawful killing could be voluntary manslaughter even if the killing was intentional. The court then instructed that there was no malice if the killing occurred on sudden quarrel or heat of passion, going on to explain the provocation necessary to justify finding sudden quarrel or heat of passion. Three instructions told the jury intent to kill was an element of voluntary manslaughter.
The court then instructed that an unlawful killing without malice aforethought and without intent to kill was involuntary manslaughter. The court instructed that a killing was unlawful within the meaning of the instruction if committed during an ordinarily lawful act that posed a high risk of death or great bodily harm without due caution and circumspection, a criminal negligence theory of involuntary manslaughter. The court also instructed that a killing by a person who was unconscious as a result of voluntary intoxication was involuntary manslaughter. The court did not instruct on the “misdemeanor manslaughter” form of involuntary manslaughter, however. The omitted instruction, part of CALJIC No. 8.51, would have advised the jury that “If a person causes another’s death, while committing a misdemeanor or infraction which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter.”
Defense counsel argued that if defendant killed his wife there was no malice. Therefore, the killing could only be manslaughter. She argued that the evidence showed at most the elements of involuntary manslaughter. She suggested that defendant was unconscious as a result of intoxication and, under the applicable law, his offense was involuntary manslaughter.
During deliberations the jury requested that the testimony of the defense expert on toxicology who had described the effects of intoxication be reread.
Defendant appealed.
II
Appeal
On appeal defendant contended that there was insufficient evidence to support the verdict of voluntary manslaughter and that the trial court erred in failing to give complete instructions on involuntary manslaughter. In support of the first claim, he argued that the evidence was not sufficient to establish an intent to kill or provocation. In support of the second, he argued that the omission of an instruction on misdemeanor manslaughter prevented the jury from finding that he had committed misdemeanor manslaughter on a theory that the killing occurred during the brandishing of a firearm in violation of section 417, subdivision (a)(2), a misdemeanor.
It was more likely, defendant argued, that the jury would believe that in holding the weapon during the pushing and shoving exchange, he committed a misdemeanor that was inherently dangerous to human life than it was that the jury would believe that the killing occurred while he was engaging in an ordinarily lawful act which involves a risk of death or great bodily harm without due caution or circumspection.
The Court of Appeal rejected the People’s argument that defendant could not obtain a reversal on the basis of an error that was favorable to the defendant. (See Powell, supra,
The Court of Appeal reversed the judgment, reasoning that the jury had acquitted defendant of murder, the sudden quarrel/heat of passion theory of voluntary manslaughter was not supported by the evidence, and the evidence did support conviction of involuntary manslaughter. The court therefore remanded defendant to the trial court for resentencing on the lesser offense.
This court granted review to consider respondent’s arguments that (1) People v. Saille, supra,
We conclude that Powell, supra,
III
Discussion
It has long been the rule in this state that, in the absence of prejudice, a defendant may not complain of error favorable to the defendant, including the giving of correct, but inapplicable, instructions and return of a verdict of an offense less than that which the evidence shows. (§ 1258; see Powell, supra, 34 Cal.2d at pp. 206-207; People v. Tuthill (1947)
“[E]ven if it be assumed that the trier of fact erred here when he found defendant guilty only of manslaughter, defendant cannot invoke reversal on an error which is favorable to him. [Citations.] An appellant is precluded from complaining that he was convicted of a lesser offense than the one of which he is guilty according to undisputed evidence, or according to that view of the evidence which, it indisputably appears, the trier of fact accepted.” (Powell, supra, 34 Cal.2d at pp. 205-206.)
In Powell, the defendant was charged with abortion and murder of the victim. In a nonjury trial the court found him guilty of abortion and voluntary manslaughter. On appeal the defendant argued that the court did not have the power to find him guilty of manslaughter because the evidence showed that he was either guilty of second degree murder or of no crime. The court rejected that reasoning and held that regardless of whether the verdict was simply error, or was the product of extralegal considerations such as mercy, the trier of fact had the power to return a verdict of a lesser offense than that shown either by undisputed evidence or by the version of the evidence the record demonstrated had been accepted by the trier of fact. (Powell, supra, 34 Cal.2d. at pp. 206-207.)
Defendant here argues that Powell is not applicable because in this case (1) the jury did not indisputably accept the evidence that would support a conviction of the greater offense, second degree murder, and (2) the evidence would have supported an instruction on involuntary manslaughter on a
For reasons discussed below, we disagree.
Before addressing the applicability of Powell to this case, we note our agreement with the Court of Appeal on two important points. The evidence was sufficient to support a finding of intent to kill and the trial court erred in failing to fully instruct on involuntary manslaughter.
A. Evidence of Intent to Kill.
In determining whether, based on the entire record, a reasonable trier of fact could conclude that the People proved the existence of an element of an offense beyond a reasonable doubt, a reviewing court considers the evidence in a light most favorable to the judgment and presumes the existence of every fact that could reasonably be deduced from the evidence. (People v. Crittenden (1994)
The evidence that defendant quarreled with his wife, the quarrel escalated into shoving and pushing, defendant broke off the argument, went to another room and obtained a loaded gun, and that gun was fired at close range while in contact with the victim’s head, is clearly sufficient to support an inference that defendant retrieved and fired the gun with the intent to kill his wife.
B. Instructions.
1. Voluntary manslaughter instructions.
The Penal Code defines manslaughter as “the unlawful killing of a human being without malice.” (§ 192.) The offense is voluntary manslaughter when the killing is “upon a sudden quarrel or heat of passion.” (Id., subd. (a).) As we have explained in greater detail in People v. Breverman (1998)
Although section 192, subdivision (a), refers to “sudden quarrel or heat of passion,” the factor which distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim (see In re Thomas C. (1986)
There was evidence here that defendant and Mee Nor were engaged in an argument prior to the shooting. There was no direct evidence that Mee Nor did or said anything sufficiently provocative that her conduct would cause an average person to react with deadly passion. Nor was there direct evidence that defendant acted under the influence of such passion.
Respondent argues that something Mee Nor said to defendant after the dinner guests left seemed to anger defendant as he and his wife argued and pushed each other for five minutes before the gun was fired. Respondent also
The test of adequate provocation is an objective one, however. The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation and heat of passion must be affirmatively demonstrated. (People v. Sedeno (1974)
We need not decide here whether the evidence of provocation was insufficient to permit a reasonable jury to find that the killing was voluntary manslaughter rather than murder on a heat of passion theory
2. Involuntary manslaughter instructions.
The first instruction on involuntary manslaughter given by the court was: “Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of section 192[, subdivision] (b). In order to prove such crime, each of the following elements must be proved: One, a human being was killed; two, the killing was unlawful.” It was only after that instruction had been given that the court gave the instructions, requested by defendant, which described two circumstances in which involuntary manslaughter might be committed—criminal negligence and unconsciousness resulting from voluntary intoxication.
As noted, the trial court did not instruct on misdemeanor manslaughter—an unlawful killing without malice in the commission of an unlawful
Nonetheless, we do not agree with the Court of Appeal and the dissent of Justice Mosk that because defendant was acquitted of murder, and evidence of heat of passion was insufficient to support the voluntary manslaughter verdict, a judgment of involuntary manslaughter should be imposed. Whether the voluntary manslaughter verdict should be upheld or is, as the Court of Appeal held, legally insupportable in the absence of adequate provocation is a question independent of whether the trial court erred in instructing on manslaughter. If error in giving the voluntary manslaughter instruction or in returning that verdict was favorable to defendant, he may not complain of the error on appeal and the judgment must be affirmed.
C. The Voluntary Manslaughter Conviction Was Favorable to Defendant.
Respondent asks the court to apply the Powell rule—defendant may not complain on appeal of an error favorable to the defendant or that he or she has been convicted of a lesser offense than that which the evidence indisputably accepted by the jury warranted. (Powell, supra,
In Breverman, supra,
Here, although a misdemeanor manslaughter instruction was erroneously omitted, the jury had the opportunity to convict defendant of involuntary manslaughter if it found simply an unlawful, unintentional killing, without malice. The jury nonetheless rejected the option of an involuntary manslaughter verdict, found intent to kill, and convicted defendant of voluntary manslaughter.
Insofar as the instruction on voluntary manslaughter as an intentional killing in the heat of passion is concerned, any error was favorable to defendant. The evidence was sufficient to support the conviction of murder. The jury necessarily found that the killing was intentional which, ordinarily, would establish malice and thus murder. The prosecutor argued that evidence showed not just second, but first, degree murder. The jury nonetheless convicted defendant of voluntary manslaughter instead of murder. The dissenting justices reason that the verdict establishes that the jury did not find malice beyond a reasonable doubt. We disagree. Regardless of the jury’s understanding of malice as an abstract concept, it did find beyond a reasonable doubt that defendant intended to kill Mee Nor. In doing so, it found malice as a matter of law. Contrary to the view of Justice Mosk, intoxication does not negate malice, which is established by intent to kill.
Defendant argues that the court should not presume that the jury which erred in finding heat of passion was nonetheless correct in finding intent. We do not assume that the jury found sufficient evidence of provocation and relied on that theory in returning the voluntary manslaughter verdict, however. It is equally or more likely that, under the instructions it was given, the jury erroneously believed that defendant’s gross intoxication negated the malice element of murder.
Before instructing on murder and manslaughter, the court instructed: “The next instruction applies to murder first, murder second, and voluntary [sic]. . . . Under the law it is the general rule that no act committed by a person
“Thus, in the crimes charged, namely, murder first, murder second and voluntary manslaughter, a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crimes set forth elsewhere in these instructions.
“If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether or not such defendant had such specific intent or mental state. If from all the evidence you have a reasonable doubt whether the defendant had such specific intent or mental state, you must find that defendant did not have such specific intent or mental state.”
Other instructions referred to malice as a “mental state” and told the jury that “[t]he distinction between murder and manslaughter is that murder requires malice, while manslaughter does not.” Another instruction told the jury that malice could be absent even though the killing was intentional: “Every person who unlawfully kills another human being without malice aforethought, but with an intent to kill, is guilty of voluntary manslaughter.” This instruction was one of three which emphasized that intent to kill was an element of voluntary manslaughter. Based on the instructions it was given the jury could reasonably conclude that, even if intent to kill was present, if voluntary intoxication was also present malice could be negated. Thus the jury was not led to believe that heat of passion was the only basis on which a voluntary manslaughter verdict could be returned. Since the evidence of gross intoxication was substantial, while evidence of heat of passion was lacking, we do not presume, as defendant suggests, that the jury erroneously concluded that the evidence of heat of passion was sufficient to negate malice. It is more likely the jury concluded that although the killing was intentional it was committed without malice because defendant was grossly intoxicated. Since intoxication could not and did not mitigate malice, the jury necessarily found beyond a reasonable doubt all of the facts necessary to a conviction of second degree murder.
When, as here, a jury necessarily finds all of the facts required for a conviction of murder, but convicts the defendant of voluntary manslaughter,
Numerous decisions of other state courts also recognize the propriety of sustaining a conviction of voluntary manslaughter notwithstanding the absence of heat of passion when the evidence supports a conviction of murder. (See Jimmerson v. State (1925)
Nothing in Jackson v. Virginia (1979)
IV
Disposition
The judgment of the Court of Appeal is reversed.
George, C. J., and Chin, J., concurred.
Notes
All statutory references are to the Penal Code.
Except as specifically noted in our subsequent discussion, we are not called upon to, and do not, decide whether the trial court’s instructions were correct. It is unnecessary to resolve in this case whether provocation/heat of passion or intent to kill are “elements” of voluntary manslaughter, whether involuntary manslaughter may be found in circumstances other than those specifically described in section 192, or whether manslaughter in any of its forms is an offense necessarily included in murder. We express no opinion on any of these questions.
Defendant was born in Burma (Myanmar) where he lived until he was grown and married. He then moved to Taiwan, where he lived for 10 years before coming to the United States. He and his wife worked for several years to save enough money to bring their two daughters to the United States in 1989. Burmese is defendant’s native language. He also speaks the Toishan dialect, which is similar to Cantonese, and Mandarin. At trial an interpreter translated the proceedings from English to Mandarin and Mandarin to English. The trial of this matter did not commence until January 1995, as defendant had been found incompetent to stand trial.
The People relied on the presence of blood on the empty cognac bottle for an argument that defendant consumed some alcohol after the shooting. Mary testified, however, that defendant had nothing to drink after the shot was fired. It appears that defendant consumed most of the 750-milliliter bottle himself during a period of less than two hours.
Section 417, subdivision (a)(2): “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor . . . .”
The heat of passion aroused by “sudden quarrel” or “mutual combat” form of voluntary manslaughter is not implicated here. A defendant who kills during the mutual combat contemplated by this type of voluntary manslaughter may not take undue advantage. (People v. Sanchez (1864)
The three instructions told the jury: (1) “The crime of murder second requires the specific intent to unlawfully kill another human being with malice. “The crime of voluntary manslaughter requires the specific intent to kill another human being.” (2) “Every person who unlawfully kills another human being without malice aforethought, but with an intent to kill, is guilty of voluntary manslaughter in violation of section 192.” (3) “In order to prove such crime, each of the following elements must be proved: One, a human being was killed; Two the killing was unlawful; and Three, the killing was done with intent to kill.”
Concurrence Opinion
I agree that defendant’s voluntary manslaughter conviction should be affirmed. I write separately because my analysis of the issues presented differs from that set out in the plurality opinion.
I begin with an examination of the jury’s voluntary manslaughter verdict. Although the plurality declines to decide the issue (plur. opn., ante, at p. 60), the jury’s verdict is clearly supported by the evidence. As this court recently explained in People v. Breverman (1998)
Stated somewhat more generally, although a trial court should not instruct on a lesser included offense “when there is no evidence that the offense was less than that charged” (Breverman, supra,
An examination of the factual record and the instructions given to the jury in this case leads to the same conclusion. Pursuant to CALJIC No. 8.50, the jury was instructed as follows: “To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel.”
II
Nor do the involuntary manslaughter instructions given to the jury provide a basis for reversing defendant’s voluntary manslaughter conviction. The plurality holds that the trial court erred when it failed to instruct sua sponte on a misdemeanor manslaughter theory of involuntary manslaughter. (Plur. opn., ante, at pp. 60-61.) According to the plurality, such instructions were warranted because “when defendant used his gun in the quarrel with [his wife] he violated [Penal Code] section 417, subdivision (a)(2), committing the misdemeanor offense of ‘brandishing’ a weapon.” (Plur. opn., ante, at p. 61.) The plurality then proceeds to deem the error harmless. (Id. at pp. 62-63.)
This case demonstrates, yet again, the pitfalls of requiring trial courts to instruct sua sponte on lesser included offenses. (See Breverman, supra, 19 Cal.4th at pp. 195-202 (dis. opn. of Brown, J.).) As a legal matter, requiring sua sponte instructions on involuntary manslaughter, on a misdemeanor manslaughter theory, on a “brandishing” subtheory, demands that our trial judges be psychic. And, as a factual matter, I question whether such instructions were warranted in this case. As noted above, a trial court should not
IH
For the reasons discussed above, I agree that defendant’s voluntary manslaughter conviction should be affirmed.
CALJIC No. 8.50 is based on the United States Supreme Court’s decision in Mullaney v. Wilbur (1975)
Defendant’s daughter testified that she saw her parents arguing and pushing each other, but that she could not hear what they were saying.
The plurality cites People v. Williams (1969)
Having concluded that sua sponte instructions were required, the plurality goes on to deem the failure to so instruct harmless. (Plur. opn., ante, at pp. 62-63.) The plurality’s harmless error analysis is based primarily on the fact the jury convicted defendant of voluntary manslaughter, a greater offense of involuntary manslaughter. (See id. at p. 63 [“The jury had been instructed three times that it must find intent to kill in order to return a verdict of voluntary manslaughter. The evidence supported such a finding. We conclude on that basis that the error in failing to instruct on misdemeanor manslaughter was not prejudicial.” (Fn. omitted.)].) In other words, the failure to instruct on the lesser included offense was harmless because the jury convicted defendant of a greater offense. Once again, “I wonder why, if the sua sponte instruction rule is as important as some of our prior cases seem to say, we have now made the failure to instruct on lesser included offenses all but harmless per se. [Citation.]” (Breverman, supra,
Dissenting Opinion
I dissent.
After trial in the superior court, a jury returned a verdict finding defendant guilty of the voluntary manslaughter of his wife and also made a finding that he personally used a firearm therein. The superior court rendered a judgment convicting and sentencing him accordingly.
The Court of Appeal reversed. As defendant had claimed, it concluded that the jury’s verdict finding him guilty of voluntary manslaughter was not supported by sufficient evidence in violation of the due process clause of the Fourteenth Amendment to the United States Constitution as construed in Jackson v. Virginia (1979)
Although it was without any ground on which to order review, this court nevertheless chose to intervene, apparently in order to do what it deemed to
I
Murder is the “unlawful killing of a human being . . . with malice aforethought.” (Pen. Code, § 187, subd. (a).) Malice aforethought “may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Id., § 188.) Murder is “of the first degree” if it is “perpetrated ... by any . . . kind of willful, deliberate, and premeditated killing,” including tilling by specified means, or if it is “committed in the perpetration of, or attempt to perpetrate,” specified felonies. (Id., § 189.) Murder is “of the second degree” if it is not of the first (ibid.), which means that it is simply an unlawful tilling with malice aforethought.
Manslaughter is the “unlawful tilling of a human being without malice” aforethought. (Pen. Code, § 192.) Manslaughter is “[vjoluntary” if it is perpetrated “upon a sudden quarrel or heat of passion” (id., § 192, subd. (a)) following provocation adequate to arouse a reasonable person (e.g., People v. Valentine (1946)
At the trial of this cause, the evidence introduced by the People and by defendant himself showed, virtually beyond dispute, that the “conduct/ result” element common to first and second degree murder and voluntary and involuntary manslaughter was present: As defendant was brandishing a handgun in his wife’s face, he shot and killed her, and did so unlawfully. But as for the “mental” element peculiar to each offense, it was otherwise. For defendant’s state of mind at the time of the incident was difficult to assess. What was clear was that he was then so profoundly intoxicated as to approach unconsciousness, coma, and even death. An expert so testified. What was also clear was that he had not been provoked. There was simply no direct or even circumstantial evidence that showed or even suggested that he had been confronted with any word or deed, on the part of his wife or anyone else, that would have been adequate to arouse a reasonable person to do what he did. Unsurprisingly, the prosecutor did not argue in favor of voluntary manslaughter on any theory, but, quite the contrary, argued against it without qualification. So too did defense counsel.
In its charge to the jury, the superior court defined murder as the unlawful killing of a human being with malice aforethought, and defined malice aforethought as “either express or implied”: it is “express” when “there is manifested an intention unlawfully to kill a human being”; it is “implied” when (1) the “killing resulted from an intentional act,” (2) the “natural consequences of the act are dangerous to human life,” and (3) the “act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” It instructed on first degree murder, by premeditation and deliberation but not in the perpetration of a felony. It also
In addition, the superior court defined manslaughter as the unlawful killing of a human being without malice aforethought. It implied that malice aforethought might be absent if the killing occurred during intoxication. In spite of the absence of evidence introduced by either the People or defendant, and in the face of argument to the contrary presented by both the prosecutor and defense counsel, it stated that malice aforethought might be deemed to be absent “if the killing occurred . . . upon a sudden quarrel or heat of passion” following “provocation ... of such character and degree as naturally would excite or arouse” such a state of affairs. It also stated that malice aforethought had to be deemed to be absent unless the People proved beyond a reasonable doubt that the killing did not occur under circumstances of this sort. Again, in spite of the absence of evidence, and in the face of argument to the contrary, it instructed—erroneously—on voluntary manslaughter. It stated that the offense required that (1) a “human being was killed,” (2) the “killing was unlawful,” and (3) the “killing was done with the intent to kill.” It implied that the offense required that the “killing occurred . . . upon a sudden quarrel or heat of passion” following “provocation . . . of such character and degree as naturally would excite or arouse” such a state of affairs. It stated that the People had to prove beyond a reasonable doubt that the killing did not occur under circumstances of this sort. It also instructed on involuntary manslaughter. It stated that the offense required that (1) a “human being was killed,” and (2) the “killing was unlawful.” It instructed on the offense—erroneously—only as a result of criminal negligence and not also in the course of a misdemeanor, such as brandishing a firearm (Pen. Code, § 417, subd. (a)(2)), inasmuch as it stated only that a “killing is unlawful ... if it occurred” “[i]n the commission of an act ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.”
On the first day of its deliberations, the jury requested an examination of certain evidence reflective of the setting and surroundings of the killing. The superior court granted what it sought.
On the second day, the jury requested a rereading of the testimony of the expert that defendant was so profoundly intoxicated at the time of the incident as to approach unconsciousness, coma, and even death. Again, the superior court granted what it sought.
On the third and last day, the jury returned a verdict finding defendant not guilty of first degree murder and then one finding him not guilty of second
III
On defendant’s claim, the Court of Appeal concluded that the jury’s verdict finding him guilty of voluntary manslaughter was not supported by sufficient evidence in violation of the Fourteenth Amendment’s due process clause.
Rightly so.
A jury’s verdict finding a defendant guilty of an offense satisfies the Fourteenth Amendment’s due process clause as construed in Jackson v. Virginia, supra,
In this cause, the jury’s verdict finding defendant guilty of voluntary manslaughter was not supported by sufficient evidence because it was not supported by evidence that would have allowed any rational trier of fact to have found the element of provocation beyond a reasonable doubt. What was stated above bears restatement here: There was simply no direct or even circumstantial evidence that showed or even suggested that defendant had been confronted with any word or deed, on the part of his wife or anyone else, that would have been adequate to arouse a reasonable person to do what he did.
It is plain that a verdict by the jury finding defendant guilty of second degree murder, had one been returned, would have been supported by sufficient evidence. A rational trier of fact could have found each of the elements of this offense beyond a reasonable doubt. It could surely have determined to the requisite degree of certainty that there was an unlawful killing. So too as for malice aforethought, at least in its implied form.
It is also plain that a verdict by the jury finding defendant guilty of involuntary manslaughter, had one been returned, would have been supported by sufficient evidence. A rational trier of fact could have found each of the elements of this offense beyond a reasonable doubt. As stated, it could surely have determined to the requisite degree of certainty that there was an unlawful killing. Likewise for its occurrence as a result of criminal negligence or in the course of a misdemeanor, to wit, brandishing a firearm.
But it is just as plain that the jury’s verdict finding defendant guilty of voluntary manslaughter—the verdict that it did in fact return—was not supported by sufficient evidence. Without any evidence whatsoever to rely on, no rational trier of fact could have found the element of provocation.
IV
The plurality practically ignore the Court of Appeal’s conclusion that the jury’s verdict finding defendant guilty of voluntary manslaughter was not supported by sufficient evidence in violation of the Fourteenth Amendment’s due process clause. They likewise practically ignore defendant’s claim to
The reason for the plurality’s virtual omission is not hard to guess. Any attempt to reject the Court of Appeal’s conclusion or to deny defendant’s claim would not, and could not, succeed.
Instead of accepting reversal, which is assuredly mandated by the United States Constitution, the plurality strain after affirmance, which is supposedly mandated by the California Constitution.
Of course, if the California Constitution demanded affirmance and the United States Constitution demanded reversal, the conflict would have to be resolved in favor of the latter and against the former. The supremacy clause, which the federal document contains in its article VI, clause 2, and which the state document acknowledges in its article III, section 1, requires no less.
To affirm under the California Constitution, the plurality rely on People v. Powell (1949)
In Powell, we held that a defendant is “precluded from complaining” on appeal that “he was convicted of a lesser offense than the one of which he is guilty according to undisputed evidence, or according to that view of the evidence which, it indisputably appears, the trier of fact accepted.” (People v. Powell, supra,
Under the rule of Powell, defendant is not precluded from complaining of his conviction for voluntary manslaughter.
For it is simply not the case that defendant is guilty of first or even second degree murder “according to undisputed evidence.” (People v. Powell, supra,
Neither is it the case that defendant is guilty of first or even second degree murder “according to that view of the evidence which, it indisputably
The plurality assert that the evidence was sufficient for a verdict by the jury finding defendant guilty of second degree murder. That is true. But of no import.
The plurality then assert that the jury “necessarily” found that defendant was indeed guilty of second degree murder, or at least that it “necessarily” found each of its elements. (Plur. opn., ante, at p. 52.) That is false.
The plurality’s major premise is that malice aforethought in its express form entails intent to kill. It will be accepted for purposes of discussion.
The plurality’s minor premise is that the jury “necessarily” found malice aforethought in its express form by returning its verdict finding defendant guilty of voluntary manslaughter—which, under the instructions given, implies a finding of intent to kill beyond a reasonable doubt. It must be rejected.
The plurality altogether disregard the jury’s verdicts finding defendant not guilty of first or second degree murder—which, under the instructions given, imply a finding, subject only to a single qualification, of at least a reasonable doubt about intent to kill.
For the first- and second-degree-murder not guilty verdicts imply a finding of at least a reasonable doubt about malice aforethought. A finding of at least a reasonable doubt about malice aforethought implies, in turn, a finding of at least a reasonable doubt about both its express form and its implied form. A finding of at least a reasonable doubt about malice aforethought’s implied form implies, in its turn, a finding of at least a reasonable doubt about what that form involves, namely, conscious disregard for human life. Similarly—and decisively here—a finding of at least a reasonable doubt about malice aforethought’s express form implies, in its turn, a finding of at least a reasonable doubt about what that form entails, namely, intent to kill.
The qualification referred to above is this: As a matter of logic, the first- and second-degree-murder not guilty verdicts might perhaps simply imply a
Not only do the plurality rely on the rule of Powell to affirm under the California Constitution, they also rely on a rule that they derive from the common law of various jurisdictions. (See generally Annot., Propriety of Manslaughter Conviction in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter (1983)
At the outset, we must note that this rule, which dispenses with the requirement of sufficient evidence for each of the elements of an offense as a matter of common law (see Annot., Propriety of Manslaughter Conviction in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter, supra, 19 A.L.R.4th at pp. 864-912), arose prior to, and therefore apart from, Jackson v. Virginia, supra,
That put aside, the rule operates in the following situation: At a defendant’s trial, there was sufficient evidence of each of the elements of a greater offense; by contrast, there was not sufficient evidence of at least one of the elements of a lesser offense; he was convicted of the lesser offense and not the greater. On appeal, he is not allowed to complain of the result, because the result (it is supposed) was necessarily favorable to his interests: he could have been convicted of the greater offense instead of the lesser.
In a different situation, the rule does not operate: At a different defendant’s trial, there was sufficient evidence of each of the elements of a greater
This cause presents the latter situation and not the former. At defendant’s trial, there was sufficient evidence of each of the elements of second degree murder; by contrast, there was not sufficient evidence of at least one element of voluntary manslaughter, specifically, provocation; there was, however, sufficient evidence of each of the elements of involuntary manslaughter; he was convicted of voluntary manslaughter and not second degree murder or involuntary manslaughter. On appeal, he is allowed to complain of the result, because the result was not necessarily favorable to his interests: although he could have been convicted of second degree murder instead of voluntary manslaughter, he could also have been convicted of involuntary manslaughter.
Over a century ago, we held that a “defendant cannot complain where the determination of his case was more favorable to him than the evidence warranted.” (People v. Muhlner (1896)
But neither before nor since had we ever even suggested that a defendant could not complain where the determination might have been less favorable. The plurality are wrong to do so now.
V
For the reasons stated above, I would affirm the judgment of the Court of Appeal.
Werdegar, J., J., concurred.
As in People v. Breverman (1998)
The plurality say that “[i]t is unnecessary to resolve in this case” the issue whether provocation is an element of voluntary manslaughter. (Plur. opn., ante, at p. 52, fn. 2.) True. The question has already been answered—in the affirmative. (E.g., People v. Jackson, supra,
Because of the result that I reach, I need not, and do not, proceed to determine whether the superior court erred reversibly when it instructed on involuntary manslaughter only as a result of criminal negligence and not also in the course of a misdemeanor. In concluding against reversal, the plurality claim, in substance, that the superior court’s instructions did not exclude involuntary manslaughter in the course of a misdemeanor as a matter of law. Perhaps so. But they simply did not include it as a matter of fact. Indeed, to the jury, made up as it was of laypersons, they must likely have suggested the opposite. For, by stating that involuntary manslaughter covers an unlawful killing as a result of criminal negligence in the form of the commission, “without due caution and circumspection,” of an “ordinarily lawful" act that “involves a high degree of risk of death or great bodily harm” (italics added), they implied that some even, more serious offense covers an unlawful killing in the course of a misdemeanor, which, by definition, is never a lawful act, “ordinarily” or otherwise.
Dissenting Opinion
Dissenting.—While grossly intoxicated, defendant shot and killed his wife during an argument. A jury convicted him of voluntary manslaughter while acquitting him of murder. For this or any other criminal conviction to satisfy the due process clause of the United States Constitution, there must be evidence in the record sufficient for a rational jury to find beyond a reasonable doubt the existence of every element of the crime. Defendant contends that his conviction for voluntary manslaughter is defective under this test because there is no evidence from which a jury could reasonably conclude that he acted in the heat of passion upon adequate provocation. The plurality holds that, even if correct, this contention does not entitle defendant to relief. It reasons that the jury necessarily found facts establishing all the elements of the greater offense of murder (an unlawful killing with malice aforethought) and therefore any error in the voluntary manslaughter verdict was favorable to defendant.
The jury, however, did not necessarily find all of the elements of murder, for in acquitting defendant of murder it necessarily rejected the element of malice aforethought, the element of murder that is not present in voluntary manslaughter. I conclude nevertheless that defendant’s contention fails on the merits for a different reason. The voluntary manslaughter verdict is sound because the presence of heat of passion was not an element of voluntary manslaughter that needed to be proven before defendant could be validly convicted of that crime. Instead, the prosecution here needed to prove beyond a reasonable doubt the absence of heat of passion before the jury could find that an intentional, unlawful killing was murder rather than voluntary manslaughter. In convicting defendant of voluntary manslaughter, the jury was expressing its view that the killing was unlawful and intentional but that the prosecution had failed to convince it beyond a reasonable doubt that defendant had not acted in the heat of passion.
Defendant raises as a separate claim of error the trial court’s failure to instruct the jury on the lesser offense of involuntary manslaughter committed in the course of committing a misdemeanor. A trial court must instruct the jury on every lesser included offense supported by the evidence; here, the evidence adequately supported the misdemeanor theory of involuntary manslaughter, and the jury should have been instructed on it. The plurality agrees the trial court erred in failing to so instruct but concludes the error was harmless. I disagree. Because there is a reasonable probability that if it had been so instructed the jury would have found defendant guilty of only involuntary manslaughter, the error is not harmless. For this separate reason, defendant’s conviction is invalid, and I would reverse it.
I
I first address defendant’s contention that his voluntary manslaughter conviction is constitutionally defective because on the evidence at trial a
In a recent case, I examined the elements of murder and voluntary manslaughter and the unique relationship between these two crimes:
“Murder is defined by statute as an ‘unlawful killing’ with ‘malice aforethought.’ (Pen. Code, § 187, subd. (a).) Voluntary manslaughter, on the other hand, is an ‘unlawful killing’ ‘without malice’ and ‘upon a sudden quarrel or heat of passion’ ([Pen. Code,] § 192), or upon a good faith but unreasonable belief in the need for self-defense (People v. Barton (1995)
“For purposes of murder, malice may be express or implied. ‘It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.’ ([Pen. Code,] § 188.) Malice is the intent to kill (express malice) or intent to do an act dangerous to human life with conscious disregard of its danger (implied malice); accordingly, murder is proven by showing an unlawful killing plus either the intent to kill or the intent to do a dangerous act with conscious disregard of its danger. (People v. Saille (1991)
Malice is absent if the defendant did not act with either of the mental states used to define malice—the intent to kill or the intent to do an act dangerous to human life with conscious disregard of its danger. Even if one of these mental states is present, however, malice is nonetheless absent if in
Using the standard California criminal jury instructions, the trial court here instructed the jury it was the burden of the prosecution to prove beyond a reasonable doubt the absence of heat of passion in order for the jury to find the element of malice and return a verdict of murder. “To establish that a killing is murder other than felony-murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the honest, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.” (CALJIC No. 8.50 (5th ed. 1988), italics added, brackets omitted.)
The trial court also told the jury that the only elements of voluntary manslaughter were a killing that was unlawful and intentional.
On the evidence here, a rational jury could have found that the prosecution had failed to carry its burden of proving the absence of heat of passion.
More fundamentally, as the trier of fact, it is for the jury to decide whether the evidence has proven beyond a reasonable doubt a particular element of a crime. (United States v. Gaudin (1995)
Here, the trial court instructed the jury that if it found that the prosecution had failed to carry its burden of proving the absence of heat of passion but also found that the killing was unlawful and intentional, it was to return a verdict of voluntary manslaughter. Because it is undisputed that there is sufficient evidence from which a rational jury could conclude that the killing was unlawful and intentional, there is sufficient evidence to support the jury's voluntary manslaughter verdict.
II
I now turn to the trial court’s failure to instruct on involuntary manslaughter occurring in the course of committing a misdemeanor. There are two
As the plurality concludes, it was error for the trial court to fail to instruct on the misdemeanor theory of involuntary manslaughter. A trial court must instruct, “sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (People v. Breverman, supra,
This court has recently held that when a trial court erroneously fails to instruct on a lesser included offense the conviction must be reversed if there is a reasonable probability that the jury could have reached a different conclusion had it been properly instructed. (People v. Breverman, supra,
Conclusion
For the reasons given above, I conclude that there is substantial evidence to support the voluntary manslaughter verdict. The trial court’s failure to instruct on the misdemeanor theory of the lesser included offense of involuntary manslaughter, however, was prejudicial error that requires reversal of defendant’s conviction.
Appellant’s petition for a rehearing was denied April 14, 1999. Mosk, J., Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.
I use the term “heat of passion” to refer to the statutory language “upon a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a).)
“In order to prove such crime [of voluntary manslaughter], each of the following elements must be proved: [ft] 1. A human being was killed, [ft] 2. The killing was unlawful, and, [ft] 3. The killing was done with the intent to kill.” (CALJIC No. 8.40, supra.)
“If you are satisfied beyond a reasonable doubt that the killing was unlawful but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant
The plurality theorizes that the jury necessarily found the malice element of murder in finding as part of its voluntary manslaughter verdict that defendant intended to kill. The plurality’s theory founders on the fact that malice is not simply intent to kill, but the intent to kill in the absence of heat of passion. Thus, in finding intent to kill without finding the absence of heat of passion, the jury here did not find malice.