People v. Moye

WERDEGAR, J.,

Concurring. — I concur in the judgment on the ground that any error in refusing to instruct on heat-of-passion voluntary manslaughter was, on the particular facts of this case, harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]. As the majority explains, the jurors, disbelieving defendant’s testimony to the extent of rejecting his claims of reasonable and unreasonable self-defense, were not reasonably likely to accept that same testimony as showing defendant killed Mark Urrutia in a heat of passion provoked by Urrutia’s attack on him. (Maj. opn., ante, at pp. 555-557.)

I write separately because I believe the question whether the record contains substantial evidence justifying the requested instruction is closer than the majority allows. Defendant’s testimony that Urrutia attacked him with a baseball bat, hitting him several times, and that defendant “wasn’t, like, in the right state of mind” as he wrested the bat from Urrutia and struck the fatal blows, arguably would have permitted a rational juror to find defendant killed “upon a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a).) This is so even though, as the majority stresses, the thrust of defendant’s testimony was to show he acted in self-defense, rationally responding to the victim’s attack. As we explained in People v. Barton (1995) 12 Cal.4th 186 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ], instructions on voluntary manslaughter should be given when supported by substantial evidence, notwithstanding the defendant’s “protestations of innocence” (id. at p. 196). “The trial court must instruct on lesser included offenses when there is substantial evidence to support the instruction, regardless of the theories of *559 the case proffered by the parties.” (Id. at p. 203.) Nor did the trial court’s instruction on the unreasonable self-defense theory of voluntary manslaughter excuse it from instructing on heat of passion as well if the evidence supported both theories. (People v. Breverman (1998) 19 Cal.4th 142, 162 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ].)

Although not as strong as in People v. Breverman, supra, 19 Cal.4th at pages 163-164, or People v. Barton, supra, 12 Cal.4th at page 202 , there was in this case evidence of heat of passion. Defendant testified to a sudden attack by the victim that put him in an excited state — not “in [his] right state of mind” — leading to a struggle that ended in the victim’s death. As the failure to give the requested instruction was clearly harmless, unlike the majority I would not decide the difficult question of whether this testimony constitutes substantial evidence defendant killed in a heat of passion.