People v. Beltran

Filed 6/3/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S192644

v. )

) Ct.App. 1/4 A124392

TARE NICHOLAS BELTRAN, )

) San Francisco City & County

Defendant and Appellant. ) Super. Ct. Nos. 175503, 203443

____________________________________)

Here we clarify what kind of provocation will suffice to constitute heat of

passion and reduce a murder to manslaughter. The Attorney General argues the

provocation must be of a kind that would cause an ordinary person of average

disposition to kill. We disagree. Nearly one hundred years ago, this court

explained that, when examining heat of passion in the context of manslaughter, the

fundamental “inquiry is whether or not the defendant‟s reason was, at the time of

his act, so disturbed or obscured by some passion . . . to such an extent as would

render ordinary men of average disposition liable to act rashly or without due

deliberation and reflection, and from this passion rather than from judgment.”

(People v. Logan (1917) 175 Cal. 45, 49 (Logan).) The proper standard focuses

upon whether the person of average disposition would be induced to react from

passion and not from judgment.

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I. BACKGROUND

Defendant Tare Nicholas Beltran and Claire Joyce Tempongko met in

November 1998 and began dating. In January 1999, defendant moved into the San

Francisco apartment Tempongko shared with her nine-year-old son J.N. and her

younger daughter. J.N. called defendant “dad.” In several incidents, defendant

physically abused Tempongko. In April 1999, he threw her to the ground and

dragged her by the hair. Three weeks later, he grabbed her and tried to remove her

from a friend‟s apartment. In November 1999, he took her into the bedroom and

barricaded the door. The police were summoned and forced the door open.

At some point, defendant moved from the apartment but retained a key.

Tempongko obtained a protective order requiring him to stay 100 yards away from

the residence. In September 2000, defendant, who was drunk, was arrested

outside of the apartment.

Tempongko began dating Michael Houtz. She once told Houtz that

defendant said their relationship would end over his dead body or hers.

On October 22, 2000, Houtz, Tempongko and the children went shopping

in Sacramento. When Tempongko received a call on her cell phone, J.N.

answered, then handed the phone to his mother, saying, “Dad is mad.” The heated

conversation ended after Tempongko yelled into the phone and hung up. Houtz

testified that he could not understand Tempongko‟s side of the interaction because

she was not speaking in English. Tempongko explained that “he” was bothering

her, and Houtz believed she was referring to defendant. After the call,

Tempongko‟s demeanor changed completely and she became quite upset. On the

drive home, Tempongko received several more calls, some of which she answered.

Tempongko became “fidgety” and appeared nervous about getting home by 7:00

p.m. as planned.

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As they neared her apartment, Tempongko saw a green Honda parked

nearby and told Houtz to drive around the block. Houtz saw a “Caucasian or

Hispanic” man slumped down in the Honda‟s driver‟s seat. Tempongko became

very frightened and repeatedly scanned the area. She told Houtz to drive around

the block three additional times. The green Honda was gone when Houtz parked

in front of the apartment building. Tempongko and the children ran inside without

saying goodbye. Shortly thereafter, Houtz phoned Tempongko on both her cell

and home phones. No one accepted the cell call. J.N. answered the home phone

and said Tempongko was not there. Houtz drove back to the building and saw a

man running across the street. Houtz checked the front door of the apartment.

Seeing nothing amiss, he headed home to Vallejo. He called Tempongko‟s cell

phone several times during his drive but could not reach her.

Tempongko‟s apartment building had three units. Christina Maldonado

lived on the top floor. On the evening of October 22, 2000, she heard sounds of a

physical altercation coming from Tempongko‟s apartment. There was a muffled

male voice and children screaming that they loved their mother. She did not hear

an adult female voice. When Maldonado left her apartment and looked down the

stairs, she saw J.N. run out of Tempongko‟s unit. Another neighbor caught up

with J.N., who was crying. J.N. said that his “dad” stabbed his mother and ran

away. The neighbors found Tempongko in her apartment bloody and

unresponsive. The apartment was in disarray; the phone had been unplugged from

the wall. An autopsy revealed several blunt force injuries and 17 stab wounds to

Tempongko‟s face, upper body, arms, and hands. After running from the scene,

defendant fled to Mexico where he was arrested six years later.

J.N. was 18 years old at the time of trial. He testified that, after the family

got home on October 22, 2000, Tempongko received several cell phone calls.

Tempongko was “frantic,” arguing with someone on the phone, and telling the

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caller not to come to the apartment. Thirty to 45 minutes later, defendant banged

loudly on the front door, then entered without being let in. He began yelling and

asking Tempongko where she had been and with whom. The two argued for five

or 10 minutes. Defendant then walked briskly to the kitchen, returned to the living

room with a large knife, and repeatedly stabbed Tempongko. She futilely raised

her arms in self-defense. Defendant continued to stab her as she slumped to the

floor, then fled, taking the knife with him. Nearby, police later recovered a knife

with Tempongko‟s blood on it.

Defendant testified that he and Tempongko had an up and down

relationship. While they discussed having their own children, Tempongko was

concerned that defendant would leave her as the fathers of her two other children

had done. At some point, they decided Tempongko would try to become pregnant,

but defendant believed she was unsuccessful. Defendant acknowledged he had

grabbed Tempongko on several occasions but denied pulling her hair.

On the day of the killing, defendant and Tempongko had planned to have

lunch together. However, she called him and said she was going shopping in

Vallejo with a female friend. She offered to meet defendant after she returned. At

her request, defendant called Tempongko at about 3:00 p.m. to see if they were on

their way back to San Francisco. He denied being upset or demanding that she be

home by 7:00 p.m. That evening, he went to the apartment and let himself in with

a key because Tempongko was expecting him. Defendant was calm but

Tempongko was upset, asking why he was late. The argument became heated.

Tempongko hurled insults, calling defendant a “ „fucking illegal‟ ” and a

“ „nobody.‟ ” She said she “ „could get better than [him].‟ ” Defendant said he

was leaving, which upset Tempongko further. She stated: “ „Fuck you. I was

right. I knew you were going to walk away someday. That‟s why I killed your

bastard. I got an abortion.‟ ” Defendant was shocked; Tempongko had never

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mentioned an abortion. He remembered nothing else until he found himself

standing in the living room with a bloody knife. He admitted that he discarded the

knife and fled to Mexico.

Defendant was charged with murder and use of a deadly weapon.1 The trial

court gave instructions on first and second degree murder, as well as voluntary

manslaughter based upon a sudden quarrel or heat of passion.2 The jury found

defendant guilty of second degree murder with the use enhancement.

A divided Court of Appeal concluded the voluntary manslaughter

instruction was prejudicially erroneous and reversed defendant‟s conviction. We

clarify the appropriate standard and reverse the judgment of the Court of Appeal.

II. DISCUSSION

A. Legal Introduction

“ „Homicide is the killing of a human being by another . . . .‟ ” (People v.

Antick (1975) 15 Cal.3d 79, 87.) Criminal homicide is divided into two types:

murder and manslaughter. “Murder is the unlawful killing of a human being, or a

fetus, with malice aforethought.” (§ 187, subd. (a).) Malice aforethought may be

express or implied. (§ 188.) “Express malice is an intent to kill. . . . Malice is

implied when a person willfully does an act, the natural and probable

consequences of which are dangerous to human life, and the person knowingly

acts with conscious disregard for the danger to life that the act poses.” (People v.

Gonzalez (2012) 54 Cal.4th 643, 653.) A killing with express malice formed

willfully, deliberately, and with premeditation constitutes first degree murder.

(People v. Concha (2009) 47 Cal.4th 653, 662.) “Second degree murder is the

1 Penal Code, sections 187, subdivision (a), 12022, subdivision (b)(1).

Subsequent statutory references will be to the Penal Code unless noted.

2 Section 192, subdivision (a).

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unlawful killing of a human being with malice aforethought but without the

additional elements, such as willfulness, premeditation, and deliberation, that

would support a conviction of first degree murder.” (People v. Knoller (2007) 41

Cal.4th 139, 151.)

Manslaughter is a lesser included offense of murder. (§ 192; People v.

Thomas (2012) 53 Cal.4th 771, 813.) The mens rea element required for murder is

a state of mind constituting either express or implied malice. A person who kills

without malice does not commit murder. Heat of passion is a mental state that

precludes the formation of malice and reduces an unlawful killing from murder to

manslaughter.3 Heat of passion arises if, “ „at the time of the killing, the reason of

the accused was obscured or disturbed by passion to such an extent as would cause

the ordinarily reasonable person of average disposition to act rashly and without

deliberation and reflection, and from such passion rather than from judgment.‟ ”

(People v. Barton (1995) 12 Cal.4th 186, 201.) Heat of passion, then, is a state of

mind caused by legally sufficient provocation that causes a person to act, not out

of rational thought but out of unconsidered reaction to the provocation. While

some measure of thought is required to form either an intent to kill or a conscious

disregard for human life, a person who acts without reflection in response to

adequate provocation does not act with malice.

This case involves the nature of provocation required to give rise to the heat

of passion that obscures reason and precludes the mental state of malice. The

People propose a test that would require a finding not only that an ordinary person

3 A killing committed under the unreasonable but good faith belief in the

need to act in self-defense is a killing done without malice and also constitutes

voluntary manslaughter. (People v. Blacksher (2011) 52 Cal.4th 769, 832.) That

form of manslaughter is not at issue here.

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of average disposition would be liable to act rashly and without reflection, but that

such a person would act rashly in a particular manner, namely, by killing. We

decline to adopt that test.

B. Trial Court Proceedings

The prosecutor argued that defendant, motivated by jealousy, went to

Tempongko‟s apartment intending to kill her, thus acting with express malice

formed after premeditation and deliberation. The sole defense theory was that

defendant killed in the heat of passion. When the victim said she had aborted her

pregnancy, the news was so disturbing that defendant acted not from reflection but

in reaction to the provocation.4 The prosecutor urged the jury to reject that

argument. She maintained that there was no credible evidence showing the victim

had said anything about an abortion. Alternatively, even if the victim did mention

an abortion, the alleged statements did not amount to adequate provocation.5

4 Defense counsel argued in part: “A lot of times when you have these

homicide cases, there is this mistake and the prosecutor likes to argue, „Well, if

someone said that to me, “I killed your bastard; I had an abortion,[] I was right to

do that,[”] then I wouldn‟t jump up and kill the person. That‟s not how a

reasonable person acts. That‟s not how an average person reacts.‟ That‟s not the

law. [¶] Look at this very carefully. The provocation would have caused a person

of average disposition to act rashly and without due deliberation. If the

provocation causes a person to act rashly and without thinking, that‟s what this

provocation is under the law. It doesn‟t say the provocation would have caused a

person of average disposition to kill. If that were the law, then that would be the

argument, well, if someone said that to me, „I wouldn‟t kill the person.‟ And

instead the law is provocation that causes a person to act rashly impulsively

without thinking.”

5 The prosecutor argued with respect to heat of passion in part: “And the

provocation has to be such that a person of average disposition to act with passion

rather than judgment [sic]. We would have probably millions more homicides a

year if everyone could use words that may be—although I don‟t disbelieve. I

don‟t agree that this is what happened. It‟s an illogical interpretation of the facts.

You stub your toe. You‟re angry, might cuss a few words. You don‟t go out and

(footnote continued on next page)

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During the settling of instructions, the trial court told the parties it would

give CALCRIM No. 570 (2006 version) explaining voluntary manslaughter based

on heat of passion. Defense counsel requested the instruction be modified to

clarify that the jury could find defendant acted in the heat of passion even if he

intended to kill the victim. The trial court and the parties properly agreed that heat

of passion could still apply in such a circumstance. (See People v. Lasko (2000)

23 Cal.4th 101, 108 (Lasko) [“a person who intentionally kills as a result of

provocation, that is, „upon a sudden quarrel or heat of passion,‟ lacks malice and is

guilty not of murder but of the lesser offense of voluntary manslaughter”].)

Although the prosecutor argued the standard version of CALCRIM No. 570

already covered the point, the trial court agreed to modify the instruction by

adding language taken from CALJIC No. 8.40 (Voluntary Manslaughter—Defined

[2004 rev.]).6 The final instruction given to the jury was as follows:

(footnote continued from previous page)

kill somebody. [¶] We‟ve all gotten cut off in traffic. We say the few choice

words, „Oh, my God.‟ We don‟t gun the pedal and start trying to hit the car in

front of us to try to kill the person who cut us off. Can you imagine if that was

permissible, „Oh, my God, I acted [] without judgment and rash. I got so angry. I

was insulted.‟ That‟s not the standard. It‟s a reasonable person, and you‟re all

reasonable people and you know that it‟s illogical that even these words were

uttered.”

6 The CALCRIM User‟s Guide expressly cautions that “[t]he CALJIC and

CALCRIM instructions should never be used together. While the legal principles

are obviously the same, the organization of concepts is approached differently.

Mixing the two sets of instructions into a unified whole cannot be done and may

result in omissions or confusion that could severely compromise clarity and

accuracy.” (Jud. Council of Cal. Crim. Jury Instns. (2012) Guide for Using Jud.

Council of Cal. Crim. Jury Instns., p. xxvi.) Of course, the trial court may modify

any proposed instruction to meet the needs of a specific trial, so long as the

instruction given properly states the law and does not create confusion.

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“A killing that would otherwise be murder is reduced to voluntary

manslaughter if the defendant killed someone because of a sudden quarrel

or heat of passion.

“The defendant killed someone because of sudden quarrel or in the heat of

passion if, number one, the defendant killed another human being without

malice aforethought but either with an intent to kill or with a conscious

disregard of human life; number two, the defendant was provoked; number

three, as a result of provocation, the defendant acted rashly and under the

influence of intense emotion that obscured his reasoning or judgment; and,

number four, the provocation would have caused a person of average

disposition to act rashly and without due deliberation. That is, from passion

rather than from judgment.

“Heat of passion does not require anger, rage, or any specific emotion. It

can be any violent or intense emotion that causes a person to act without

due deliberation and reflection.

“Now, in order for heat of passion to reduce a murder to voluntary

manslaughter, the defendant must have acted under the direct and

immediate influence of provocation as I‟ve defined it above.

“While no specific type of provocation is required, slight or remote

provocation is not sufficient. Sufficient provocation can occur over a short

or a long period of time.

“Now, it is not enough that the defendant simply was provoked. The

defendant is not allowed to set up his own standard of conduct. You must

decide whether the defendant was provoked and whether the provocation

was sufficient.

“In deciding whether the provocation was sufficient, consider whether a

person of average disposition would have been provoked and how such a

person would react in the same situation knowing the same facts. [¶] . . .

[¶]

“The People have the burden of proving beyond a reasonable doubt that the

defendant did not kill as [the] result of sudden quarrel or heat of passion. If

the People . . . have not met this burden, you must find the defendant not

guilty [of murder].” (Italics added.)

During deliberations, the jury sent out the following note: “In instruction

570: „In deciding whether the provocation was sufficient, consider whether a

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person of average disposition would have been provoked and how such a person

would react in the same situation knowing the same facts.‟ Does this mean to

commit the same crime (homicide) or can it be other, less severe, rash acts[?]”

After consulting counsel, the trial court responded: “The provocation involved

must be such as to cause a person of average disposition in the same situation and

knowing the same facts to do an act rashly[7] and under the influence of such

intense emotion that his judgment or reasoning process was obscured. This is an

objective test and not a subjective test.” As noted, the jury convicted defendant of

second degree murder.

C. Court of Appeal Opinion

On appeal, defendant argued the instruction given was misleading.

Defendant claimed that telling jurors to consider how “a person would react” in

the face of the provocation led them to question whether an average person would

react physically and kill, as opposed to reacting mentally, experiencing obscured

reason precluding the formation of malice. Defendant further argued that the

prosecutor‟s comments during closing arguments exacerbated the error by

7 The clerk‟s transcript contains the written draft of the trial court‟s response,

which we quote here. The reporter‟s transcript ungrammatically renders the

phrase “knowing the same facts to do an act rashly” as “knowing the same facts to

do and act rashly.” We assume this rendering resulted from a transcription error.

(See People v. Smith (1983) 33 Cal.3d 596, 599 [“ „It may be said . . . as a general

rule that when, as in this case, the record is in conflict it will be harmonized if

possible; but where this is not possible that part of the record will prevail, which,

because of its origin and nature or otherwise, is entitled to greater credence

[citation]. Therefore whether the recitals in the clerk‟s minutes should prevail as

against contrary statements in the reporter‟s transcript, must depend upon the

circumstances of each particular case.‟ ”]; People v. Freitas (2009) 179

Cal.App.4th 747, 750, fn. 2 [“When a clerk‟s transcript conflicts with a reporter‟s

transcript, the question of which of the two controls is determined by

consideration of the circumstances of each case.”].)

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suggesting the ordinary person‟s conduct in reaction to provocation was relevant

in determining whether provocation was legally adequate.

The Court of Appeal agreed with defendant that the given instruction was

ambiguous and rejected the Attorney General‟s argument that the relevant

standard was whether an ordinary person of average disposition would kill under

the same circumstances. A majority of the Court of Appeal concluded the

ambiguity in the instruction prejudiced defendant and reversed his murder

conviction. (See discussion, post.)

D. The Proper Standard for Provocation

The People argue the proper standard for assessing the adequacy of

provocation is whether an ordinary person of average disposition would be moved

to kill. They urge that juries should be expressly told to consider whether an

ordinary person would kill under the circumstances at issue.

The People assert their view is supported by the common law. However, a

review of the common law, from which our manslaughter statute originally

derived,8 undermines their argument. Originally at common law, voluntary

manslaughter did not refer to a person of average disposition. Rather, the early

cases simply defined voluntary manslaughter as occurring under specified

circumstances. Those circumstances did not justify the killing but, nevertheless,

rendered it less blameworthy than murder because of adequate provocation. In the

seminal case of Regina v. Mawgridge (1707) 84 Eng.Rep. 1107, Lord Holt

explained at length what particular circumstances would and would not constitute

8 Cf. People v. Cox (2000) 23 Cal.4th 665, 671 (§ 192, subd. (b) “codifie[d]

the traditional common law form of involuntary manslaughter”); Lasko, supra, 23

Cal.4th at page 110 (noting that “[o]ur conclusion that voluntary manslaughter

does not require an intent to kill is consistent with the common law”).

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voluntary manslaughter at common law. “Provocations which are not sufficient

were said by Lord Holt to be (1) words of reproach or infamy; (2) affronting

gestures; and (3) trespasses upon one‟s land. On the other hand, provocations

which may under the circumstances be adequate were said to be (1) angry and

sudden assaults upon one; (2) similar assaults upon one‟s friend who is with one at

the time; (3) seeing any person abused by force and going to his rescue; (4)

unlawful arrest; and (5) seeing one‟s wife in an act of adultery.” (2 Burdick, The

Law of Crime (1946) § 426a, p. 188; see Mawgridge, supra, 84 Eng.Rep. at pp.

1112-1115; see also Manning’s Case (1670) 83 Eng.Rep. 112 [concluding the

defendant‟s killing of a man “committing adultery with his wife in the very act”

constituted “but manslaughter” and ordering the defendant‟s hand be burned as

punishment but directing “the executioner to burn him gently, because there could

not be greater provocation than this”].)

At some point, cases introduced the concept of the ordinary person of

average disposition to the analysis, not only to generalize the circumstances that

would mitigate murder to manslaughter, but also to allow the jury to determine

what circumstances would constitute adequate provocation. One of the earliest

cases recognizing the role of the person of average disposition in voluntary

manslaughter jurisprudence was Maher v. People (Mich. 1862) 10 Mich. 212

(Maher). Maher explained why a killing resulting from adequate provocation

should result in mitigated punishment: “[I]f the act of killing, though intentional,

be committed under the influence of passion or in heat of blood, produced by an

adequate or reasonable provocation, and before a reasonable time has elapsed for

the blood to cool and reason to resume its habitual control, and is the result of the

temporary excitement, by which the control of reason was disturbed, rather than of

any wickedness of heart or cruelty or recklessness of disposition; then the law, out

of indulgence to the frailty of human nature, or rather, in recognition of the laws

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upon which human nature is constituted, very properly regards the offense as of a

less heinous character than murder, and gives it the designation of manslaughter.”

(Id. at p. 219.) Maher examined what level of provocation was necessary, noting

that “[i]t will not do to hold that reason should be entirely dethroned, or

overpowered by passion so as to destroy intelligent volition” since “[s]uch a

degree of mental disturbance would be equivalent to utter insanity, and, if the

result of adequate provocation, would render the perpetrator morally innocent.”

(Id. at p. 220.) However, because manslaughter remains a felony, Maher

recognized that a killing in response to adequate provocation is a less serious

crime than murder. (Ibid.) Thus, as Maher reasoned, adequate provocation must

“never [be] beyond that degree within which ordinary men have the power, and

are, therefore, morally as well as legally bound to restrain their passions. It is only

on the idea of a violation of this clear duty, that the act can be held criminal.”

(Ibid.) Maher concluded adequate provocation means “that reason should, at the

time of the act, be disturbed or obscured by passion to an extent which might

render ordinary men, of fair average disposition, liable to act rashly or without

due deliberation or reflection, and from passion, rather than judgment.” (Ibid.,

first and third sets of italics added.)

The development of the law in California tracks this move away from

specified categories of provocation to a more generalized standard based on the

concept of an ordinary person of average disposition, leaving for the jury whether

the given facts show adequate provocation. Before the enactment of the Penal

Code in 1872, the Crimes and Punishments Act of 1850 defined voluntary

manslaughter as “upon a sudden heat of passion, caused by a provocation

apparently sufficient to make the passion irresistible . . . .” (Stats. 1850, ch. 99,

§ 22, p. 231.) The act further required that “[i]n cases of voluntary manslaughter

there must be a serious and highly provoking injury inflicted upon the person

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killing, sufficient to excite an irresistible passion in a reasonable person, or an

attempt by the person killed to commit a serious personal injury on the person

killing.” (Ibid.)

Thus, although this statute incorporated the concept of a reasonable person,

it also limited the adequate provocation to an attempt by the victim to cause

serious bodily injury. Our Penal Code subsequently did away with this limitation,

simply defining voluntary manslaughter as a killing without malice “upon a

sudden quarrel or heat of passion.” (§ 192, subd. (a).) We recognized in Logan,

supra, 175 Cal. 45, that this change removed the “injury to the killer” restriction:

“In the present condition of our law it is left to the jurors to say whether or not the

facts and circumstances in evidence are sufficient to lead them to believe that the

defendant did, or to create a reasonable doubt in their minds as to whether or not

he did, commit his offense under a heat of passion.” (Id. at pp. 48-49.) This

change was consistent with Maher‟s observation that jurors were better equipped

to make this determination than judges: “Besides the consideration that the

question is essentially one of fact, jurors, from the mode of their selection, coming

from the various classes and occupations of society, and conversant with the

practical affairs of life, are . . . much better qualified to judge of the sufficiency

and tendency of a given provocation, and much more likely to fix, with some

degree of accuracy, the standard of what constitutes the average of ordinary

human nature, than the judge whose habits and course of life give him much less

experience of the workings of passion in the actual conflicts of life.” (Maher,

supra, 10 Mich. at p. 222.) In articulating the proper standard, we cited Maher,

essentially quoting verbatim the standard articulated there, that the fundamental

“inquiry is whether or not the defendant‟s reason was, at the time of his act, so

disturbed or obscured by some passion—not necessarily fear and never, of course,

the passion for revenge—to such an extent as would render ordinary men of

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average disposition liable to act rashly or without due deliberation and reflection,

and from this passion rather than from judgment.” (Logan, supra, 175 Cal. at p.

49.)

We reaffirmed the Logan standard in People v. Valentine (1946) 28 Cal.2d

121 (Valentine). Valentine addressed whether the trial court properly instructed

the jury that adequate provocation could not be shown “ „by words only, however

opprobrious, nor contemptuous or insulting actions, or gestures without an assault

upon the person . . . .‟ ” (Id. at p. 137.) This limitation applied at common law

and was incorporated into the manslaughter statute under the 1850 Crimes and

Punishments Act. (Valentine, at pp. 138-139; People v. Butler (1857) 8 Cal. 435,

441-443 [approving a similar instruction under the Crimes and Punishments Act].)

Valentine observed that, although Logan‟s statement of the proper standard was “a

clear and correct statement of the law,” cases nevertheless continued to apply the

common law limitation that mere words could not constitute adequate

provocation. (Valentine, at p. 139.) Valentine concluded the common law

limitation regarding mere words had no application under section 192, subdivision

(a), which “omit[ted] the more stringent language of the Crimes and Punishments

Act of 1850” (Valentine, at p. 141) and was “obviously substantially different”

from the former enactment (id. at p. 142). In affirming the Logan standard,

Valentine reasoned that “repeal of the statute which incorporated” the common

law limitation, “together with enactment of a new law on the same subject with the

important limitation deleted, strongly suggests that the Legislature intended a

more liberal rule.” (Id. at p. 143.) After Valentine, we have repeatedly quoted the

Logan standard as a correct statement of law.9

9 See People v. Manriquez (2005) 37 Cal.4th 547, 584; People v. Gutierrez

(2002) 28 Cal.4th 1083, 1143-1144; People v. Steele (2002) 27 Cal.4th 1230,

(footnote continued on next page)

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The Attorney General‟s position, that adequate provocation for voluntary

manslaughter requires a finding that an ordinary person of average disposition

would kill, is inconsistent with the Logan standard. It is also inconsistent with the

conceptual underpinnings of heat of passion as a circumstance which mitigates

culpability for a killing but does not justify it. As Maher suggested, society

expects the average person not to kill, even when provoked. As Professor Dressler

stated, we punish a person who kills in the heat of passion or upon provocation

because “[h]e did not control himself as much as he should have, or as much as

common experience tells us he could have, nor as much as the ordinarily law-

abiding person would have.” (Dressler, Rethinking Heat of Passion: A Defense in

Search of a Rationale (1982), 73 J. Crim.L. & Criminology 421, 467, original

italics.) However, if one does kill in this state, his punishment is mitigated. Such

a killing is not justified but understandable in light of “the frailty of human

nature.” (Maher, supra, 10 Mich. at p. 219.) The killing reaction therefore is the

extraordinary reaction, the unusual exception to the general expectation that the

ordinary person will not kill even when provoked.

Adopting a standard requiring such provocation that the ordinary person of

average disposition would be moved to kill focuses on the wrong thing. The

proper focus is placed on the defendant‟s state of mind, not on his particular act.

To be adequate, the provocation must be one that would cause an emotion so

intense that an ordinary person would simply react, without reflection. To satisfy

(footnote continued from previous page)

1252-1253 (Steele); People v. Wharton (1991) 53 Cal.3d 522, 570; People v. Rich

(1988) 45 Cal.3d 1036, 1112; People v. Morse (1969) 70 Cal.2d 711, 734-735;

People v. Borchers (1958) 50 Cal.2d 321, 329; People v. Danielly (1949) 33

Cal.2d 362, 377-378.

16

Logan, the anger or other passion must be so strong that the defendant‟s reaction

bypassed his thought process to such an extent that judgment could not and did not

intervene. Framed another way, provocation is not evaluated by whether the

average person would act in a certain way: to kill. Instead, the question is

whether the average person would react in a certain way: with his reason and

judgment obscured.

The Attorney General argues that if provocation is adequate without

reference to whether an ordinary person of average disposition would be moved to

kill, then the standard would be too low. She asserts that “ „acting rashly‟ means

nothing more than acting hastily or imprudently, without consideration” and

“[t]here are countless experiences in everyday life which would cause an ordinary

person to act „rashly,‟ such as being cut off on the road by an inattentive driver,

having coffee spilled on him by a careless waiter, receiving a negative evaluation

from a supervisor, or observing an umpire‟s bad call at his child‟s little league

game.” The argument misconstrues the standard. One does not act rashly under

Logan simply by acting imprudently or out of anger. Even imprudent conduct

done while angry is ordinarily the product of some judgment and thought,

however fleeting. This is not the type of truly reactive conduct contemplated by

the Logan standard. This standard does not mean that a defendant does not form

malice unless he thinks rationally or exercises sound judgment. In other words,

provocation is sufficient not because it affects the quality of one‟s thought

processes, but because it eclipses reflection. A person in this state simply reacts

from emotion due to the provocation, without deliberation or judgment. If an

ordinary person of average disposition, under the same circumstances, would also

react in this manner, the provocation is adequate under Logan.

17

The Attorney General‟s concern that the proper standard is too low is

unfounded for two reasons. First, case law and the relevant jury instructions make

clear the extreme intensity of the heat of passion required to reduce a murder to

manslaughter. This passion must be a “ „ “ „[v]iolent, intense, high-wrought or

enthusiastic emotion‟ ” ‟ [citation].” (People v. Breverman (1998) 19 Cal.4th 142,

163 (Breverman).) The emotional response required goes far beyond the type of

irritation a person of ordinary disposition would be prompted to feel by the

mundane annoyances described above.

Second, Logan emphasized that the relevant standard is an objective one.

Logan recognized that “no defendant may set up his own standard of conduct and

justify or excuse himself because in fact his passions were aroused, unless further

the jury believe that the facts and circumstances were sufficient to arouse the

passions of the ordinarily reasonable man. Thus, no man of extremely violent

passion could so justify or excuse himself if the exciting cause be not adequate,

nor could an excessively cowardly man justify himself unless the circumstances

were such as to arouse the fears of the ordinarily courageous man. Still further,

while the conduct of the defendant is to be measured by that of the ordinarily

reasonable man placed in identical circumstances, the jury is properly to be told

that the exciting cause must be such as would naturally tend to arouse the passion

of the ordinarily reasonable man. But as to the nature of the passion itself, our law

leaves that to the jury, under these proper admonitions from the court.” (Logan,

supra, 175 Cal. at p. 49.) As the court long ago explained in People v. Jones

(1911) 160 Cal. 358, 368, “it is not a matter of law but a matter of fact for the jury

in each case to determine under the circumstances of the case whether the assault

or whether the blow, or whether the indignity or whether the affront, or whatever

the act may be, was such as is naturally calculated to arouse the passions, and so

18

lessen the degree of the offense by relieving it from the element of malice.”

Maher similarly explained that if the standard for provocation was purely

subjective, “then, by habitual and long continued indulgence of evil passions, a

bad man might acquire a claim to mitigation which would not be available to

better men, and on account of that very wickedness of heart which, in itself,

constitutes an aggravation both in morals and in law.” (Maher, supra, 10 Mich. at

p. 221.)

The Logan standard is further limited by the requirement that a defendant

actually be motivated by passion in committing the killing. “[I]f sufficient time

has elapsed between the provocation and the fatal blow for passion to subside and

reason to return, the killing is not voluntary manslaughter — „the assailant must

act under the smart of that sudden quarrel or heat of passion.‟ [Citation.]”

(People v. Wickersham (1982) 32 Cal.3d 307, 327, disapproved on another ground

in People v. Barton, supra, 12 Cal.4th at p. 201; see also People v. Moye (2009) 47

Cal.4th 537, 550 (Moye).) Thus, it is insufficient that one is provoked and later

kills. If sufficient time has elapsed for one‟s passions to “cool off” and for

judgment to be restored, Logan provides no mitigation for a subsequent killing.

This understanding of the Logan standard is consistent with the other

recognized form of voluntary manslaughter: a killing in the actual but

unreasonable belief in the need for self-defense. (§ 192; People v. Booker (2011)

51 Cal.4th 141, 182.) Unreasonable self-defense, also called imperfect self-

defense, “obviates malice because that most culpable of mental states „cannot

coexist‟ with an actual belief that the lethal act was necessary to avoid one‟s own

death or serious injury at the victim‟s hand.” (People v. Rios (2000) 23 Cal.4th

450, 461.) A killing in imperfect self-defense constitutes, by definition,

unreasonable conduct because the belief in the need to defend is not reasonable.

The killing is nevertheless mitigated because of the defendant‟s misguided but

19

good faith belief. Thus, the societal recognition of mitigation is the same. In both

heat of passion and imperfect self-defense scenarios, the killer who acts

unreasonably commits a crime. Yet the degree of culpability is reduced from

murder to manslaughter. Adequate provocation or an unreasonable but good faith

belief in the need to defend operates on the killer‟s mental state to prevent the

formation of malice.

To support her argument that provocation is adequate only if an ordinary

person of average disposition would kill in response to it, the Attorney General

cites California cases, both from this court and the Courts of Appeal, containing

different statements of the Logan standard. For example, the Attorney General

cites several cases that stated or suggested without elaboration that adequate

provocation was that which would induce in the ordinary person of average

disposition a “homicidal rage” or “deadly passion.” These isolated passages did

not change the established understanding of the heat of passion principle. The

cited cases did not purport to explain or elaborate upon the Logan standard, much

less change it. The vast majority of the cases cited by the Attorney General

properly state or quote the full Logan standard, or cite cases that may be traced

back to Logan, supra, 175 Cal. 45.10

10 See People v. Carasi (2008) 44 Cal.4th 1263, 1306; People v. Koontz

(2002) 27 Cal.4th 1041, 1086; People v. Lee (1999) 20 Cal.4th 47, 59; People v.

Fenenbock (1996) 46 Cal.App.4th 1688, 1704; People v. Dixon (1995) 32

Cal.App.4th 1547, 1551; see also People v. Avila (2009) 46 Cal.4th 680, 706

(citing Steele, supra, 27 Cal.4th at p. 1252, which quoted Logan); People v.

Kanawyer (2003) 113 Cal.App.4th 1233, 1243-1244 (quoting Steele).

Two exceptions are People v. Pride (1992) 3 Cal.4th 195, and People v. Superior

Court (Henderson) (1986) 178 Cal.App.3d 516. In rejecting the defendant‟s claim

that the trial court should have instructed on heat of passion voluntary

manslaughter as a lesser included offense of murder, Pride did not state or quote

(footnote continued on next page)

20

The Attorney General cites other cases, including out-of-state authorities,

which have suggested that provocation is adequate when it stirs in the ordinary

person an “irresistible” passion or impulse.11 None of these cases call our analysis

into question. Hurtado, which first suggested the “irresistible passion” standard in

California, cited no case in support of that standard. (People v. Hurtado, supra, 63

Cal. at p. 292.) As such, Hurtado hardly calls into question Maher‟s statement of

the relevant standard, which we later approved in Logan, supra, 175 Cal. 45 and

Valentine, supra, 28 Cal.2d 121. In any event, as a short-hand description of the

proper standard, these statements are not inconsistent with Logan. The relevant

passion is “irresistible” in the sense that adequate provocation would induce the

(footnote continued from previous page)

the relevant standard and concluded the evidence was “insufficient as a matter of

law to arouse feelings of homicidal rage or passion in an ordinarily reasonable

person.” (Pride, at p. 250, italics added.) For this proposition, however, Pride

cited only People v. Balderas (1985) 41 Cal.3d 144, which quoted People v. Berry

(1976) 18 Cal.3d 509, 515, and stated that adequate provocation “must be such as

would arouse feelings of pain or rage in „an ordinarily reasonable person‟ or „an

ordinary man of average disposition.‟ ” (Balderas, at p. 196.) Similarly,

Henderson stated in a footnote: “The concept of „heat of passion‟ allows a

defendant to reduce a killing from murder to manslaughter only in those situations

where the provocation would trigger a homicidal reaction in the mind of an

ordinarily reasonable person under the given facts and circumstances.”

(Henderson, at p. 524, fn. 4, italics added.) For this proposition, Henderson cited

only People v. Jackson (1980) 28 Cal.3d 264, 305, which, in turn, quoted the

standard enunciated in Berry. Nothing in Balderas‟s and Jackson‟s citations of

Berry suggested any attempt to depart from the Logan standard.

11 See, e.g., People v. Hurtado (1883) 63 Cal. 288, 292 (a killing is reduced to

voluntary manslaughter “when it is committed under the influence of passion

caused by an insult or provocation sufficient to excite an irresistible passion in a

reasonable person; one of ordinary self-control”); State v. Wheat (La. 1903) 35 So.

955, 960 (adequate provocation is such as “ „to excite an irresistible passion in a

reasonable person‟ ”).

21

ordinary person of average disposition to react from that passion and not from

judgment. The passion is “irresistible” to the restraining effect of judgment. This

understanding is consistent with Logan as we have described it.

The Attorney General maintains that out-of-state authorities suggest the

relevant standard is that which would cause in an ordinary person a “resentment to

violence”12 or induces the ordinary person to commit “the act” or “deed.”13 To

the extent that these authorities describe a standard contrary to Maher, supra, 10

Mich. 212, or Logan, supra, 175 Cal. 45, they are not persuasive.

The Attorney General also cites federal cases construing the federal

manslaughter statute (18 U.S.C. § 1112(a)), which have suggested adequate

provocation is such that would “ „arouse a reasonable and ordinary person to kill

someone.‟ ” (United States v. Wagner (9th Cir. 1987) 834 F.2d 1474, 1487,

quoting United States v. Collins (5th Cir. 1982) 690 F.2d 431, 437; see also United

States v. Roston (9th Cir. 1993) 986 F.2d 1287, 1291 [quoting Collins]; United

12 See State v. Rollins (Me. 1972) 295 A.2d 914, 920-921 (“provocation must

be „. . . of that character which would, in the mind of a just and reasonable man,

stir resentment to violence, endangering life . . . .‟ ” [italics added by Rollins]);

Freddo v. State (Tenn. 1913) 155 S.W. 170, 172 (adequate provocation is “a

provocation of such a character as would, in the mind of an average reasonable

man, stir resentment likely to cause violence, obscuring the reason, and leading to

action from passion rather than judgment”); Holmes v. State (Ala. 1890) 7 So. 193,

194 (adequate provocation is that “which would, in the mind of a just and

reasonable man, stir resentment to violence, endangering life”).

13 See, e.g., Dennis v. State (Md. 1995) 661 A.2d 175, 179 (“ „ “The law

contemplates the case of a reasonable man—an ordinary reasonable man—and

requires that the provocation shall be such as might naturally induce such a man,

in the anger of the moment, to commit the deed.” ‟ ”); State v. Watkins (Iowa

1910) 126 N.W. 691, 692 (same); Regina v. Welsh (1869) 11 Cox‟s Crim. Cases

336, 338 (“The law contemplates the case of a reasonable man, and requires that

the provocation shall be such as that such a man might naturally be induced, in the

anger of the moment, to commit the act”).

22

States v. Eagle Hawk (8th Cir. 1987) 815 F.2d 1213, 1216 [citing Collins].) First,

these authorities deal with a different, although similarly worded, statute. Second,

“lower federal decisional authority is neither binding nor controlling in matters

involving state law.” (Stone Street Capital, LLC v. California State Lottery Com.

(2008) 165 Cal.App.4th 109, 123, fn. 11.) Third, Collins, from which this

statement derives, cited only United States v. Chapman (10th Cir. 1980) 615 F.2d

1294, but that case nowhere suggested that an ordinary person must be aroused to

kill. (See id. at p. 1300 [describing passion as that which “ „would be aroused

naturally in the mind of the ordinary reasonable person under the same or similar

circumstances‟ ”].)

E. Instructional Error and Prejudice

As noted, the version of CALCRIM No. 570 given by the trial court stated

in relevant part: “In deciding whether the provocation was sufficient, consider

whether a person of average disposition would have been provoked and how such

a person would react in the same situation knowing the same facts.” The Court of

Appeal properly rejected the Attorney General‟s claim that this instruction did not

go far enough by failing to expressly tell the jury to consider the conduct the

provocation might cause in an ordinary person of average disposition and whether

such a person would kill in the face of the same provocation. However, the Court

of Appeal reasoned the given instruction was potentially ambiguous because it

“did not expressly limit the jurors‟ focus to whether the provocation would have

caused an average person to act out of passion rather than judgment” and

“allowed, and perhaps even encouraged, jurors to consider whether the

provocation would cause an average person to do what the defendant did; i.e.,

commit a homicide.”

We disagree that the instruction is ambiguous as written. Indeed, under

ordinary circumstances, the instruction‟s statement that the jury should consider

23

how a person of average disposition “would react” under the same circumstances

would have been unproblematic. As noted, the court instructed that the heat of

passion principle came into play if defendant acted under the influence of intense

emotion that obscured his reasoning or judgment. Telling the jury to consider how

a person of average disposition “would react” properly draws the jury‟s attention

to the objective nature of the standard and the effect the provocation would have

on such a person‟s state of mind.14

However, the parties‟ closing arguments muddied the waters on this point.

As the Court of Appeal majority observed, the prosecutor‟s examples that a

reasonable person would not kill if “[y]ou stub your toe” or get “cut off in traffic,”

although hardly clear, seemed to suggest that the jury should consider the ordinary

person‟s conduct and whether such a person would kill. As discussed, this was not

the correct standard.15 Defense counsel‟s jury argument countered the

prosecutor‟s statements and suggested the law “doesn‟t say the provocation would

have caused a person of average disposition to kill. . . . [I]nstead the law is

provocation that causes a person to act rashly impulsively without thinking.”

14 CALCRIM No. 570 has subsequently been revised to replace this language

with the following: “In deciding whether the provocation was sufficient, consider

whether a person of average disposition, in the same situation and knowing the

same facts, would have reacted from passion rather than from judgment.”

(CALCRIM No. 570 [2008 rev.].)

15 The prosecutor‟s jury argument arguably approached the improper

argument condemned in People v. Najera (2006) 138 Cal.App.4th 212. In that

murder case, the prosecutor argued against a finding of heat of passion voluntary

manslaughter, stating: “ „Would a reasonable person do what the defendant did?

Would a reasonable person be so aroused as to kill somebody? That‟s the

standard.‟ ” (Id. at p. 223, italics omitted.) Although finding these comments

misstated the law, Najera concluded the defendant forfeited any prosecutorial

misconduct claim by failing to object. (Id. at pp. 223-224.) Najera did not

consider the instructional claim before us.

24

These competing formulations by the advocates may have confused the jury‟s

understanding of the court‟s instructions.

A majority of the Court of Appeal concluded the potential ambiguity

prejudiced defendant. First, the majority observed that the jury‟s note highlighted

the ambiguity but that the trial court‟s response “did not really focus on the jury‟s

question, and did not really clarify the aspect of the instruction at issue.” Second,

the majority noted that the prosecutor‟s closing argument “used the examples of

stubbing a toe, getting cut off in traffic, or being jealous to argue that minor

provocation is not sufficient to cause a reasonable person to kill someone.” The

majority reasoned that, although the prosecutor‟s argument “may not have risen to

the level of misconduct, [] it did serve to reinforce the problem with the jury

instruction on provocation . . . .” The majority concluded the instructional error

was prejudicial under these circumstances. That analysis falls short.

Preliminarily, defendant argues the standard for evaluating federal

constitutional errors applies here, i.e., “before a federal constitutional error can be

held harmless, the court must be able to declare a belief that it was harmless

beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24.) He

asserts the ambiguity introduced into the instructions here deprived him of his

federal constitutional rights to a jury trial and due process. We have previously

rejected this argument. In noncapital cases, “the rule requiring sua sponte

instructions on all lesser necessarily included offenses supported by the evidence

derives exclusively from California law.” (Breverman, supra, 19 Cal.4th at p.

169.) As such, “in a noncapital case, error in failing sua sponte to instruct, or to

instruct fully, on all lesser included offenses and theories thereof which are

supported by the evidence must be reviewed for prejudice exclusively under

[People v.] Watson [(1956) 46 Cal.2d 818, 836].” (Breverman, at p. 178; see

Moye, supra, 47 Cal.4th at p. 555.) “ „[M]isdirection of the jury, including

25

incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not

amount to federal constitutional error are reviewed under the harmless error

standard articulated‟ in Watson.” (People v. Larsen (2012) 205 Cal.App.4th 810,

830; see People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) “[U]nder Watson, a

defendant must show it is reasonably probable a more favorable result would have

been obtained absent the error.” (People v. Mena (2012) 54 Cal.4th 146, 162.)

The prejudice analysis of the majority below overlooks an important

circumstance: The jury asked for additional guidance and the trial court gave it. It

was not reasonably probable that the jury here was misled to defendant‟s

detriment. Although counsel‟s argument may have created ambiguity about the

nature of sufficient provocation, the jury directly requested clarification of the

standard. The jury‟s note pinpointed the issue, inquiring if it should consider

whether an ordinary person would “commit the same crime (homicide) or can it be

other, less severe, rash acts.” The trial court responded with a correct statement of

law, that “[t]he provocation involved must be such as to cause a person of average

disposition in the same situation and knowing the same facts to do an act rashly

and under the influence of such intense emotion that his judgment or reasoning

process was obscured.” This response properly refocused the jury on the relevant

mental state, properly set out in CALCRIM No. 570, and away from whether an

ordinary person of average disposition would kill in light of the provocation.

Because of the trial court‟s clarifying instruction, it was not reasonably probable

that any possible ambiguity engendered by counsel‟s argument misled the jury.

Further, the Watson test for harmless error “focuses not on what a

reasonable jury could do, but what such a jury is likely to have done in the absence

of the error under consideration. In making that evaluation, an appellate court

may consider, among other things, whether the evidence supporting the existing

judgment is so relatively strong, and the evidence supporting a different outcome

26

is so comparatively weak, that there is no reasonable probability the error of which

the defendant complains affected the result.” (Breverman, supra, 19 Cal.4th at p.

177; see People v. Prince (2007) 40 Cal.4th 1179, 1267-1268.)

As the Court of Appeal dissent suggested below, evidence of provocation

was both weak and contradicted. Defendant testified that he went to the apartment

at the victim‟s invitation. He claimed they only argued because Tempongko was

angry with him for being late for their agreed-upon dinner engagement. He denied

being angry earlier in the day when he called on her cell phone.

This recitation is not only uncorroborated, it is at odds with a great deal of

other evidence. Michael Houtz testified that Tempongko took the cell phone call

after J.N. had answered it and told her, “Dad is mad.” The call devolved into

yelling. Thereafter, Tempongko was very upset. When they arrived at the

apartment, Tempongko appeared frightened and did not get out of the car until

Houtz drove around the block four times, while she repeatedly scanned the area.

Tempongko had an active restraining order barring defendant from the residence.

He had violated the order a month before and was arrested. The only noises the

neighbor, Maldonado, heard coming from the victim‟s apartment were a muffled

male voice and children screaming. Contrary to defendant‟s claim that

Tempongko was the source of the yelling and hurled insults at him, Maldonado

did not hear an adult woman‟s voice. J.N. testified his mother was “frantic” upon

their return home and repeatedly told a caller, “Please don‟t come to the house.”

Thereafter, J.N. heard loud banging after which defendant let himself into the

apartment. He was angry and began yelling at Tempongko as he entered, quizzing

her on where she had been and with whom. J.N., who witnessed the argument and

stabbing, did not testify he heard anything about a purported abortion.

Defendant‟s departure from the scene, disposal of the knife, and flight to a foreign

country, where he was arrested six years later, all reflected consciousness of guilt.

27

(See People v. McWhorter (2009) 47 Cal.4th 318, 376; People v. Garcia (2008)

168 Cal.App.4th 261, 292; People v. Siravo (1993) 17 Cal.App.4th 555, 563.)

Given the strong evidence supporting defendant‟s murder conviction and the

comparatively weak evidence of any legally adequate provocation, a different

result was not reasonably probable.

Defendant argues the trial court‟s response to the jury‟s question did not

resolve the ambiguity because the trial court directed the jury to consider whether

the provocation would cause a person of average disposition “to do an act rashly”

rather than “to act rashly.” Defendant suggests the former formulation continued

to improperly focus the jury on the “act” performed, i.e., the act of killing, and

whether an ordinary person would commit the act of killing in response to

provocation. The trial court‟s response, taken as a whole, cannot support such a

strained interpretation. As discussed, the trial court told the jury to consider

whether a person of average disposition would “do an act rashly and under the

influence of such intense emotion that his judgment or reasoning process was

obscured.” This instruction properly focused upon the rashness of the act, not on

the act alone.

III. CONCLUSION

We reaffirm today the standard for determining heat of passion that we

adopted nearly a century ago. Provocation is adequate only when it would render

an ordinary person of average disposition “liable to act rashly or without due

deliberation and reflection, and from this passion rather than from judgment.”

(Logan, supra, 175 Cal. at p. 49.) We decline the Attorney General‟s invitation to

deviate from this venerable understanding that has been faithfully applied by juries

for decades. Although the former version of CALCRIM No. 570 properly

conveyed the Logan test, the argument of counsel may have introduced ambiguity.

28

However, the jury asked a clarifying question and the trial court‟s response

dispelled any confusion.

IV. DISPOSITION

We reverse the judgment of the Court of Appeal.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

LIU, J.

29

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Beltran

__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 3/30/11, 1st Dist., Div. 4

Original Appeal

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S192644

Date Filed: June 3, 2013

__________________________________________________________________________________

Court: Superior

County: San Francisco

Judge: Robert L. Dondero

__________________________________________________________________________________

Counsel:

Linda M. Leavitt, under appointmetn by the Supreme Court, for Defendant and Appellant.

Mary Greenwood, Public Defender (Santa Clara) and Michael Ogul, Deputy Public Defender, for

California Public Defenders Association, California Attorneys for Criminal Justice and Santa Clara County

Public Defender as Amici Curiae on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Laurence K. Sullivan and

Jeffery M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.

W. Scott Thorpe; Brian Feinberg, Laura Delehunt and Jay Melaas, Deputy District Attorneys (Contra

Costa), for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and

Respondent.

Bay Area Legal Aid, Minouche Kandel; Greines, Martin, Stein & Richland, Cynthia E. Tobisman, Kent J.

Bullard and Lara M. Krieger for San Francisco Domestic Violence Consortium, California Women

Lawyers, California Partnership to End Domestic Violence, Queen‟s Bench Bar Association and Women

Lawyers of Sacramento as Amici Curiae on behalf of Plaintiff and Respondent.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Linda M. Leavitt

PMB 312

5214-F Diamond Hts. Blvd.

San Francisco, CA 94131

(415) 682-7000

Jeffery M. Laurence

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5897

2