People v. Lee

*79 KENNARD, J.,

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 *80 rational jury could not find beyond a reasonable doubt that he acted in the heat of passion. Under the due process clause of the Fourteenth Amendment to the United States Constitution, it is the prosecution’s burden in a criminal case to prove every element of a crime beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358 [ 90 S.Ct. 1068 , 25 L.Ed.2d 368 ].) To meet this burden, the prosecution must introduce evidence sufficiently substantial to permit a rational trier of fact to find the defendant guilty beyond a reasonable doubt of each of the essential elements of the crime. (People v. Johnson (1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 , 16 A.L.R.4th 1255 ]; see also Jackson v. Virginia (1979) 443 U.S. 307, 315-319 [ 99 S.Ct. 2781, 2786-2789 , 61 L.Ed.2d 560 ].) I conclude defendant’s claim lacks merit whether or not there was sufficient evidence of heat of passion.

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) 12 Cal.4th 186, 199 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]).

“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) 54 Cal.3d 1103, 1114 [ 2 Cal.Rptr.2d 364 , 820 P.2d 588 ] [‘express malice and an intent unlawfully to kill are one and the same’], 1115; People v. Swain (1996) 12 Cal.4th 593, 601-603 [ 49 Cal.Rptr.2d 390 , 909 P.2d 994 ].)” (People v. Breverman (1998) 19 Cal.4th 142, 188 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ] (dis. opn. of Kennard, J.), fns. omitted.)

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 *81 addition the defendant acted in the heat of passion. 1 “[W]hen the intentional killing results from a sudden quarrel or heat of passion induced by adequate provocation,” the killer lacks malice and the only crime committed is voluntary manslaughter. (People v. Saille (1991) 54 Cal.3d 1103, 1114 [ 2 Cal.Rptr.2d 364 , 820 P.2d 588 ].) The presence of heat of passion establishes the absence of malice even when one of the mental states necessary for murder is present. “Given the manner in which California has structured the relationship between murder and voluntary manslaughter, the complete definition of malice is the intent to kill or the intent to do a dangerous act with conscious disregard of its danger plus the absence of both heat of passion and unreasonable self-defense.” (People v. Breverman, supra, 19 Cal.4th at p. 189 (dis. opn. of Kennard, J.), italics original.)

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. 2 (CALJIC No. 8.40, supra.) Thus, the jury was to return a verdict of voluntary manslaughter if it found an unlawful intentional killing but found that the prosecution had not proven beyond a reasonable doubt the absence of heat of passion. The jury was not required to find affirmative proof of the presence of heat of passion as an element of voluntary manslaughter. Finally, the court instructed the jury that if it had a reasonable doubt whether the crime was murder or voluntary manslaughter, it must give the defendant the benefit of such doubt and find the crime to be voluntary manslaughter rather than murder. 3 (CALJIC No. 8.72, supra.)

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. *82 There was no eyewitness testimony concerning the final minutes of the confrontation between defendant and his wife, the victim. The jury could have concluded that it simply did not know enough about what occurred in those final minutes to find beyond a reasonable doubt that defendant did not act in the 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) 515 U.S. 506, 513 [ 115 S.Ct. 2310, 2315 , 132 L.Ed.2d 444 ] [describing “the historical and constitutionally guaranteed right of criminal defendants to demand that the jury decide guilt or innocence on every issue”]; id. at pp. 522-523 [ 115 S.Ct. at p. 2320 ] [“The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.”].) No matter how overwhelming the evidence supporting the existence of a particular element may seem to a court, it is for the jury to decide whether the element has been proven sufficiently to dispel all reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277 [ 113 S.Ct. 2078, 2080 , 124 L.Ed.2d 182 ] [“The [jury trial] right includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ ”].) It is for this reason that the court may never direct a verdict of conviction in a criminal trial. (Ibid. [“Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.”].)

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. 4

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 *83 different circumstances in which a killing is involuntary manslaughter. First, a killing is involuntary manslaughter if it occurs because the defendant, without intending to kill, commits without due caution or circumspection an ordinarily lawful act that poses a high risk of death or great bodily harm. (Pen. Code, § 192, subd. (b).) The trial court here instructed the jury on this theory of involuntary manslaughter. Second, a killing is involuntary manslaughter if it occurs in the course of the defendant’s commission of a misdemeanor or infraction that under the circumstances is dangerous to human life. (Ibid.) The trial court did not instruct the jury on this theory of involuntary manslaughter.

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, 19 Cal.4th 142, 162 .) Here, there was sufficient evidence from which the jury could have convicted defendant of involuntary manslaughter on a misdemeanor theory. Specifically, the jury could have reasonably concluded that when defendant shot and killed his wife he was committing the misdemeanor of brandishing a firearm (Pen. Code, § 417, subd. (a)(2)) under circumstances dangerous to human life.

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, 19 Cal.4th 142, 178 .) Here, there is such a probability. Defendant was highly intoxicated and arguing with his wife when he shot her; there was no direct evidence that he intended to kill her or even that he intended to fire the gun. The jury spent three days deliberating over defendant’s level of culpability for causing his wife’s death. Having rejected murder, the jury’s choice was between voluntary and involuntary manslaughter. Under the instructions given, however, the jury could reach a verdict of involuntary manslaughter only if it found that the killing 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.” (Italics added.) The jury rejected the view that defendant’s acts were merely lawful but dangerous ones in rejecting this theory of involuntary manslaughter. Had it been instructed on the misdemeanor theory of involuntary manslaughter, however, it could have easily and reasonably concluded that defendant killed his wife unintentionally in the course of committing, under circumstances dangerous to human life, the misdemeanor of brandishing a firearm. Accordingly, defendant’s conviction should be reversed.

*84 The plurality rejects this conclusion on the ground that defendant’s conviction of the greater offense of voluntary manslaughter, and the jury’s finding in the course of reaching that verdict that defendant intended to kill, makes it improbable that it would have convicted defendant of involuntary manslaughter on a misdemeanor theory. In People v. Breverman, supra, 19 Cal.4th 142, 178 , footnote 25, however, this court pointed out the fallacy of reasoning from the fact that a jury found a defendant guilty of the elements of a greater offense to the conclusion that it would not have chosen to convict him of a lesser offense on which it was erroneously not instructed. “That the jury chose the greater over acquittal, and that the evidence technically permits conviction of the greater, does not resolve the question whether, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears reasonably probable the jury would nonetheless have elected the lesser if given that choice.” (Ibid.) After examining the entire cause in this case, I find that there is a reasonable probability that the jury would have convicted defendant of involuntary manslaughter.

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 *82 the benefit of such doubt and find it to be manslaughter rather than murder.” (CALJIC No. 8.72, supra.)

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.