THE PEOPLE, Plaintiff and Respondent, v. RICARDO RAMIREZ RIOS, Defendant and Appellant.
No. S055790
Supreme Court of California
June 29, 2000
23 Cal. 4th 450
Jeffrey J. Stuetz, under appointment by the Supreme Court, and Waldemar D. Halka for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez, Holly D. Wilkens, Keith I. Motley, William M. Wood and Sara Gros-Cloren, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAXTER, J.—On retrial after a prior acquittal of murder, defendant was convicted of voluntary manslaughter for a homicide the jury found to be both unlawful (i.e., neither justified nor excused) and intentional. Defendant asserts, among other things, that the voluntary manslaughter instructions
We disagree. As we explain, neither heat of passion nor imperfect self-defense is an element of voluntary manslaughter that the People must affirmatively prove beyond reasonable doubt in order to obtain a conviction for that offense. Manslaughter is an unlawful killing without malice, the element necessary for the greater offense of murder. Malice may arise when one kills, without legal justification or excuse, and with specific lethal intent or conscious indifference to the likelihood of death. However, provocation and imperfect self-defense, though they do not justify or excuse an intentional or consciously indifferent homicide, mitigate the offense by negating the murder element of malice, and thus limit the crime to manslaughter. By statute and long-standing case law, an intentional but nonmalicious criminal homicide is voluntary manslaughter but no lesser offense.
Accordingly, where murder liability is at issue, evidence of heat of passion or imperfect self-defense bears on whether an intentional or consciously indifferent criminal homicide was malicious, and thus murder, or nonmalicious, and thus the lesser offense of voluntary manslaughter. In such cases, the People may have to prove the absence of provocation, or of any belief in the need for self-defense, in order to establish the malice element of murder.
But malice is not at issue upon a charge of voluntary manslaughter; indeed, a manslaughter charge concedes the absence of the murder element of malice. Hence, a conviction of voluntary manslaughter is supported by proof and findings, as here, that the homicide was unlawful and intentional. There is no additional need for the prosecution to establish that malice was lacking by reason of provocation or a belief in the need for self-defense.
The Court of Appeal was therefore correct in affirming defendant‘s voluntary manslaughter conviction against this challenge. No reason appears to address the remaining arguments raised by defendant, or to disturb the Court of Appeal‘s conclusion that these contentions also lack merit. We will therefore affirm the judgment of the Court of Appeal.
FACTS
Defendant‘s conviction arises from the fatal shooting of Anthony Reed on June 20, 1994. Defendant was originally charged with murder (
An amended information charged defendant with voluntary manslaughter (
Trial on the amended information, with a maximum charge of voluntary manslaughter, began in December 1995. There was no dispute that during a street argument, a handgun held by defendant discharged and killed Reed, who had hurled homosexual epithets at defendant and his friend. The issue was the exact circumstances in which the fatal wound was inflicted.
Melvin Mahone testified that on the evening of June 20, 1994, he and Reed were walking together on Lincoln Avenue in San Diego. Both men had been drinking.2 They saw defendant and Steven Elliott next to a parked car. Reed and Mahone, who believed Elliott appeared homosexual, began shouting that they hated “fucking faggots.” At first, defendant and Elliott ignored the taunts and walked toward defendant‘s residence. But the name-calling continued, and when defendant and Elliott reached defendant‘s front porch, defendant returned threats and insults. Defendant and Elliott then entered defendant‘s house, and Reed and Mahone walked away across the street. As they did so, defendant and Elliott reappeared, defendant with his hand behind his back. Defendant approached Reed and Mahone, who also walked toward defendant, and defendant and Reed began arguing at close range. Mahone saw Elliott, who was standing by a parked car, and insulted him again as Elliott entered the car and left. Defendant pulled a handgun from behind his back and held it at his side, pointed toward the ground. Reed told defendant, “You ain‘t going to do anything with that.” In response, defendant raised the gun and fired a shot into the air, then pointed the weapon
Several neighbors heard the confrontation and came outside. Sheldon Kochel could not see the street from his backyard, but he heard defendant, in a calm voice, tell others, who seemed enraged, to move on. After a pause, Kochel heard further vulgar threats and insults, apparently from Reed and Mahone, then two shots.
Loren Matthews and Sonia Garibay also emerged from their house. Reed and defendant were arguing chest-to-chest, with Mahone standing nearby. When defendant told Reed, “I am going to wipe the streets with your face,” Reed put out his hands with his palms up; defendant then pulled out his gun and fired into the air. Though Mahone stepped back, Reed refused to retreat, and within seconds, defendant fired a second shot into Reed‘s face. Reed fell straight backwards.
Matthews had not seen Reed reach for defendant‘s gun, but according to Matthews, there was a lot of “arm motion going on,” and he could not be sure Reed made no lunge. Garibay also did not see Reed grab for defendant‘s gun, but she admitted she had made statements to a 911 operator suggesting that her view was obstructed and that she heard, but did not see, the second shot.
Immediately after the shooting, defendant asked for someone to call 911, and Garibay did so. Meanwhile, defendant fled down an alley, where he met Michael Toscano, another neighbor. Defendant handed Toscano a handgun and asked Toscano to hide it. Police obtained the gun from Toscano the next day. It was a semiautomatic nine-millimeter pistol, compatible with the single nine-millimeter shell casing found at the shooting scene.
When recovered, the gun had an expended shell casing jammed in the chamber. During test-firings of the weapon, it was necessary after each shot to push the slide mechanism into position by hand before another round could be fired. Automatic safeties also prevented the gun from firing unless the trigger was pulled, and the effort required to pull the trigger was greater than normal.
A prosecution firearms expert testified that a gunshot wound to the brain generally causes the victim to fall in the direction he was leaning or moving at the moment the bullet struck. According to the expert, the position of
In his own behalf, defendant testified as follows: He carried a handgun for protection when outside at night, because crimes had been committed in the neighborhood. On June 20, 1994, Elliott was returning a stereo component. Just as Elliott and defendant finished moving the stereo unit from Elliott‘s car to a couch inside defendant‘s front door, defendant saw Reed and Mahone approach, and heard them utter homosexual slurs. Defendant told the two men, who appeared intoxicated, to leave, but Reed responded with a threat, and with his companion came into defendant‘s front yard. The group moved into the street, where Reed continued his verbal abuse, and Mahone shoved Elliott. Defendant again ordered Mahone and Reed to leave, but they came toward him, issuing vulgar insults and threats that included the words “pop” and “cap,” which defendant understood to mean “kill.” Defendant believed, based on their dress and language, that Reed and Mahone were gang members, and defendant suspected they were armed. Reed came face-to-face with defendant, and both Reed and Mahone made physical contact with him. Defendant then drew his gun from his waistband and fired a warning shot, hoping it would bring help from the neighbors. Within seconds, Reed lunged at defendant in an attempt to take the gun, all the while saying, “pop, pop, pop.” The gun discharged, killing Reed.
The prior testimony of Elliott, who had died after the first trial, was read into the record. According to Elliott, Reed and Mahone began their insults just as Elliott and defendant had deposited the stereo unit in defendant‘s house and were walking to their separate cars to leave on another errand. Defendant calmly told the two men to be on their way, and both he and Elliott continued to their vehicles. However, Reed and Mahone backtracked toward defendant. As they advanced, Mahone‘s fists were raised, and Reed issued a taunt. Defendant “took [a] stance” in the middle of the street and put his hand behind his back. Reed, now “right in [defendant‘s] face,” said, ” ‘If you‘re going to shoot, go ahead, ’ ” and ” ’ “go ahead and pop, pop, pop, pop, pop.” ’ ” Defendant suddenly brought his hand from behind his back, raised a gun, and fired a shot straight upward. While defendant still had his weapon in that position, Reed jumped at defendant, waving his arms and saying, “pop, pop, pop.” A second shot rang out.3
The jury was instructed that manslaughter is “the unlawful killing of a human being without malice aforethought,” and is of two kinds, voluntary
The jury was also instructed on involuntary manslaughter, defined as “an unlawful killing without malice aforethought and without an intent to kill.” (CALJIC No. 8.45.) Two theories of involuntary manslaughter were presented, i.e., that the killing occurred (1) during the commission of an inherently dangerous misdemeanor (brandishing), or (2) during 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.” (Ibid.) For this purpose, the phrase “without due caution and circumspection” was defined as “aggravated, reckless and gross” negligence constituting indifference to life. (See CALJIC No. 8.46 [“aggravated, reckless and flagrant“].)
Other instructions defined the justifiable and excusable forms of homicide. Justifiable homicide was defined as a killing in reasonable self-defense. (CALJIC Nos. 5.30, 5.31, 5.50, 5.52.) The self-defense instructions explained, among other things, that one need not retreat from an attack, but may stand and defend oneself with all force and means appropriate against the degree of injury the attack reasonably appears to threaten. Excusable homicide was defined as an unintentional killing by accident or misfortune in the performance of a lawful act, by lawful means, with the exercise of due care. (CALJIC No. 5.00.)
The jury convicted defendant of voluntary manslaughter and assault with a semiautomatic firearm. It also found true the firearm-use and great bodily injury allegations attached to these charges. The court sentenced defendant to state prison for the middle term of six years on the manslaughter count and the upper term of five years for the related firearm-use allegation, for a total of 11 years. Pursuant to
On appeal, defendant raised multiple contentions, including a claim that the trial court erroneously failed to instruct on the voluntary manslaughter
With respect to the elements issue, the Court of Appeal reasoned as follows: Even if provocation were an element of voluntary manslaughter, its instructional omission did not require reversal. Under similar circumstances, People v. McFarlane (1903) 138 Cal. 481 (McFarlane) upheld as harmless an instruction that if the jury believed the defendant guilty of murder (of which he was acquitted in a prior trial), it should convict him of manslaughter. McFarlane noted that manslaughter, as an included offense, is “necessarily involved in any murder, “and it is immaterial how the murder is perpetrated.” (McFarlane, supra, at p. 487.) As a general rule, the defendant cannot complain of a verdict more favorable to him than the evidence warranted. Moreover, heat of passion has a unique legal function. Unlike most crime elements, it does not establish or increase criminal culpability, but mitigates an intentional, unlawful homicide, otherwise murder, to a lesser offense. For this reason, provocation “closely resembles an affirmative defense” on which evidence is ordinarily presented by the accused, not the People. (People v. Barton (1995) 12 Cal.4th 186, 199 (Barton).) Thus, far from lightening the prosecution‘s burden, the instant voluntary manslaughter instruction required the People to prove the greater offense of murder, while it absolved defendant from producing evidence of provocation in order to reduce the offense to manslaughter. Accordingly, any error was harmless.
We granted defendant‘s petition for review. The petition, and the briefs in this court, reassert several of the arguments that were raised and rejected below. However, we consider only one—defendant‘s claim that his voluntary manslaughter conviction must be reversed because the instruction on that offense omitted the elements of provocation and imperfect self-defense.5 Like the Court of Appeal, we conclude that this contention lacks merit.
California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice. (Compare
Malice exists, if at all, only when an unlawful homicide was committed with the “intention unlawfully to take away the life of a fellow creature” (
On several recent occasions, we have explained the relationship between murder and manslaughter, as applied to intentional and unlawful killings. ” ‘Murder is the unlawful killing of a human being with malice aforethought. (
These mitigating circumstances reduce an intentional, unlawful killing from murder to voluntary manslaughter “by negating the element of malice that otherwise inheres in such a homicide [citation].” (Breverman, supra, 19 Cal.4th 142, 154, italics in original). Provocation has this effect because of the words of
Thus, where the defendant killed intentionally and unlawfully, evidence of heat of passion, or of an actual, though unreasonable, belief in the need for self-defense, is relevant only to determine whether malice has been established, thus allowing a conviction of murder, or has not been established, thus precluding a murder conviction and limiting the crime to the lesser included offense of voluntary manslaughter. Indeed, in a murder case, unless the People‘s own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant‘s obligation to proffer some showing on these issues sufficient to raise a
If the issue of provocation or imperfect self-defense is thus “properly presented” in a murder case (Mullaney v. Wilbur (1975) 421 U.S. 684, 704), the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. (Id., at pp. 703-704; People v. Bloyd (1987) 43 Cal.3d 333, 349.) California‘s standard jury instructions have long so provided. (See CALJIC No. 8.50.) In such cases, if the fact finder determines the killing was intentional and unlawful, but is not persuaded beyond reasonable doubt that provocation (or imperfect self-defense) was absent, it should acquit the defendant of murder and convict him of voluntary manslaughter. (People v. Dewberry (1959) 51 Cal.2d 548, 556-557; see Lee, supra, 20 Cal.4th 47, 81-82 (conc. & dis. opn. of Kennard, J.); see also CALJIC No. 8.72.)
Provocation and imperfect self-defense therefore cannot be elements of voluntary manslaughter when murder and voluntary manslaughter are under joint consideration. Were it otherwise, the prosecution would face irreconcilable requirements, where provocation or imperfect self-defense was at issue, to obtain an appropriate conviction. On the one hand, the People would have to prove, beyond reasonable doubt, the absence of these factors in order to establish the greater offense, but on the other hand, would have to prove their presence beyond reasonable doubt to establish the lesser one. A fact finder doubtful that provocation or imperfect self-defense was lacking, but also not persuaded beyond reasonable doubt that either was present, could convict the defendant of neither murder nor voluntary manslaughter, even though it found the defendant had killed intentionally, without justification or excuse. Such a result would turn the law of criminal homicide on its head.9
It equally follows that provocation and imperfect self-defense are not elements of voluntary manslaughter when, as here, the defendant faces
Accordingly, a conviction of voluntary manslaughter can be sustained under instructions which require, and evidence which shows, that the defendant killed intentionally and unlawfully. Standard California jury instructions, from which the instructions given in this case were closely adapted, have so provided for a quarter of a century. (See CALJIC No. 8.40.) The People need not further prove beyond reasonable doubt, as an element of the manslaughter offense, that the defendant was provoked or unreasonably sought to defend himself.
Defendant first relies on isolated language in Barton, supra, 12 Cal.4th 186. There we explained that voluntary manslaughter arising from either provocation or imperfect self-defense “is not a [mere] defense [to murder] but a crime” in its own right. (Id., at p. 200.) But the cited passage of Barton had nothing to do with the issue before us in this case, and nothing in Barton is inconsistent with our analysis here.
Barton considered the California rule requiring sua sponte instructions on both defenses and lesser included offenses to the charged crime. As Barton explained, even where substantial evidence supports a defense to the charge, sua sponte instructions thereon are not required if they appear inconsistent with the defendant‘s trial theory. (Barton, supra, 12 Cal.4th 186, 195.) On the other hand, the court must instruct on all lesser included offenses supported by the evidence even over the defendant‘s objection. (Id., at pp. 195-196.) Barton acknowledged that in a murder trial, voluntary manslaughter “closely resembles an affirmative defense” because “it is [ordinarily] the defendant [who] offers evidence” of provocation or imperfect self-defense to show the crime was not murder. (Id., at p. 199.) Moreover, Barton conceded, imperfect self-defense in particular seems quite similar to the complete homicide defense of “true self-defense.” (Ibid.)
Nonetheless, Barton affirmed that in its relationship to murder, voluntary manslaughter “is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder.” (Barton, supra, 12 Cal.4th 186, 200-201, italics added.) This is so because one who kills intentionally and unlawfully, but with provocation or in imperfect self-defense, lacks malice, the element that distinguishes murder from manslaughter, and “[a] defendant who commits an intentional and unlawful killing but who lacks malice is guilty [not of murder, but] of the lesser included offense of voluntary manslaughter. (
Of course,
Moreover, when the language of
That this was always the Legislature‘s intent is further indicated by
Defendant insists that subdivision (a) of
Defendant‘s theory is not convincing. The express fundamental premise of
None of the subdivisions state why malice is absent from the killings described; in all cases, that principle must be inferred. The killings described in
On the other hand, subdivision (a) of
Defendant suggests that as a result of more recent legislative action, we can no longer say heat of passion or imperfect self-defense negates the malice otherwise established by an intentional and unlawful killing. In a confusing argument, he asserts that the Legislature‘s 1981 amendment to
However, as indicated above, the principle that provocation and imperfect self-defense negate the murder element of malice, and thus reduce an otherwise malicious homicide from murder to the nonmalicious offense of voluntary manslaughter, is well established. Moreover, nothing in that theory is inconsistent with the 1981 amendment to
However, the 1981 amendment had nothing to do with the traditional relationship between murder and voluntary manslaughter, as differentiated by provocation or imperfect self-defense. (See Christian S., supra, 7 Cal.4th 768, 777-778 [holding that 1981 amendment did not eliminate imperfect self-defense].) The amendment contained no express or implicit attack upon the principle, already then extant (see, e.g., Flannel, supra, 25 Cal.3d 668, 677), that provocation and imperfect self-defense negate malice, “so as to reduce murder to manslaughter” (ibid.). Nor has the Legislature since challenged
A number of decisions have stated that provocation is an element of voluntary manslaughter, or that voluntary manslaughter requires affirmative proof of heat of passion. (See, e.g., Sedeno, supra, 10 Cal.3d 703, 719; People v. Rhinehart (1973) 9 Cal.3d 139, 154; People v. Williams (1969) 71 Cal.2d 614, 624; People v. Spurlin (1984) 156 Cal.App.3d 119, 123-124; People v. Moles (1970) 10 Cal. App.3d 611, 613; People v. Hall (1970) 5 Cal.App.3d 116, 124; People v. Thompson (1961) 193 Cal.App.2d 620, 627 (Thompson); cf. People v. Lang (1989) 49 Cal.3d 991, 1017.) In general, however, the context of these statements makes them entirely inapposite to defendant‘s claim. With one exception discussed below (see fn. 13, post), the examples arise in murder cases and are solely concerned with how issues of provocation or imperfect self-defense might reduce an intentional homicide from the charged offense of murder to the lesser included offense of voluntary manslaughter. Most simply consider whether there was sufficient evidence of provocation, or of imperfect self-defense, to entitle a murder defendant to voluntary manslaughter instructions.
Defendant cites, and we have found, no decision holding that one who commits an intentional criminal homicide cannot be convicted of voluntary manslaughter, rather than murder, unless the prosecution further proves beyond reasonable doubt, as an element of the lesser offense, that he killed upon provocation, or in an actual, though unreasonable, belief in the need for self-defense. On the contrary, in every case where an intentional killer argued he was wrongly convicted of voluntary manslaughter without evidence or findings of provocation, or on instructions and proof making out the greater offense of murder, his complaint has been rebuffed.13
Defendant urges that he cannot be convicted of one offense, manslaughter, where the the jury was told only the elements of another, murder. We have
For all the reasons set forth above, we hold that a conviction of voluntary manslaughter may be sustained upon proof and findings that the defendant committed an unlawful and intentional homicide. Provocation and imperfect self-defense are not additional elements of voluntary manslaughter
Accordingly, the instant trial court did not err by failing to instruct on provocation and imperfect self-defense as elements of voluntary manslaughter. That being so, the Court of Appeal correctly rejected defendant‘s claim that the instructional omission requires reversal of his conviction. The judgment of the Court of Appeal will therefore be affirmed.
CONCLUSION
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Werdegar, J., Chin, J., and Brown, J., concurred.
MOSK, J.—I concur in the judgment.
I read the opinion of the court to be largely consistent with the substance of my dissenting opinion in People v. Blakeley (2000) 23 Cal.4th 82, which anticipated what appears to be its central conclusions.
Thus, murder is the unlawful killing of a human being with malice aforethought, either in its express form as a deliberate and wrongful intent to kill or in its implied form as a wanton disregard for human life.
For its part, manslaughter is the unlawful killing of a human being without malice aforethought. As its conduct or consequences element, voluntary manslaughter has the requirement of an unlawful killing. As its mental state element, voluntary manslaughter has the requirement of a state of mind that amounts in fact to malice aforethought, but is deemed in law not to do so.
Like its voluntary counterpart, involuntary manslaughter has as its conduct or consequences element the requirement of an unlawful killing. But, unlike its voluntary counterpart, involuntary manslaughter (other than in its vehicular form) has as its mental state element the requirement of a state of mind that belongs to any underlying nonfelonious unlawful act, or that attends the commission, in an unlawful manner, of a lawful but potentially deadly act, or that is without due caution and circumspection.
As a matter of law but not of fact, provocation reduces malice aforethought from the more culpable mental state of murder only to the less
By contrast, as a matter of fact as well as of law, the so-called doctrine of imperfect self-defense1 may reduce malice aforethought from the more culpable mental state of murder even to the less culpable one of involuntary manslaughter, and may thereby operate to reduce murder even to involuntary manslaughter. Its effect depends on whether, in fact, it precludes malice aforethought—if yes, it results in involuntary manslaughter; if no, it results in voluntary manslaughter. It does not treat intent to kill as material in and of itself. Why it does not do so is plain. The absence of intent to kill does not entail the absence of malice aforethought: a wanton disregard for human life may yet exist. Likewise, the presence of intent to kill does not entail the presence of malice aforethought: a bare intent to kill is not sufficient; one that is both deliberate and wrongful is necessary.
BAXTER, J.
ASSOCIATE JUSTICE OF THE SUPREME COURT OF CALIFORNIA