I.

The PEOPLE, Plaintiff and Respondent,

v.
Scott BREVERMAN, Defendant and Appellant.
1998

Two young men who were walking by defendant's house got into a fight with a larger group
of youths congregated in the driveway. The two sustained cuts and bruises before the fracas ended
and they were allowed to leave. The next night, at least one of the pair returned with a group of
friends to exact some sort of retaliation. Members of the group taunted defendant, then used a
baseball bat and other implements to batter his automobile, which was parked in the driveway near
his front door. Defendant fired several shots through a window pane in the front door, then came
outside and fired further shots toward the fleeing vandals. One bullet from this second volley fatally
wounded a member of the group.

Defendant was charged with murder. The jury also received instructions on justifiable
homicide ("reasonable" self-defense) and on the lesser "necessarily included" offenses of voluntary
and involuntary manslaughter. The voluntary manslaughter instructions were premised entirely on
the theory of "unreasonable" self-defense.

II.
The PEOPLE, Plaintiff and Respondent,
v.
Steven B. LEE, Defendant and Appellant.

1999

The victim, his wife Mee Nor, hosted a Chinese New Year's party in their home on February
14, 1999. Their two young daughters, Mary and Susan, two friends of daughter Mary, and Mary's
teacher, Manuel Bella, were present. Defendant did not appear to harbor any anger toward his wife,
but he drank heavily from a bottle of cognac he had purchased that day. The defendant had consumed
alcohol, but appeared as normal self to others he was dinning with. Bella had only one small drink.
Defendant drank throughout the evening. He became emotional and told Bella he had lost his job. He
appeared depressed. As the evening progressed defendant became less coherent, his eyelids drooped,
and he began to nod. He tried but was unable to stand and escort Bella to the door when Bella left
shortly before the shooting.

The cognac bottle was empty or almost empty at the end of dinner. After Bella left the
parents began to argue; Defendant appeared different to Mary, as if he were "possessed by a spirit."
He had a blank stare and was staggering. Defendant went to the bedroom, staggering and falling
against the wall, and returned two or three minutes later with his handgun, a .357 magnum Smith &
Wesson. He pulled Mee Nor from the kitchen sink, where she was washing dishes, into the hallway,
where the couple continued to push each other with the gun between them. Mary went back to her
bedroom, heard her parents arguing, and then heard a shot. When she came out of her room, she saw
her father holding Mee Nor who was lying on the floor, begging her not to die. The gun was on the
floor. Mee Nor had died instantly from a contact or near contact gunshot to the head just above her
eye. Defendant's eyeglasses and the empty cognac bottle were found on the dining table.

III.
421 U.S. 684

MULLANEY ET AL.
v.
WILBUR.

1975

In June, 1966, a jury found respondent Stillman E. Wilbur, Jr., guilty of murder. The case
against him rested on his own pretrial statement and on circumstantial evidence showing that he
fatally assaulted Claude Hebert in the latter's hotel room. Respondent's statement, introduced by
the prosecution, claimed that he had attacked Hebert in a frenzy provoked by Hebert's homosexual
advance. The defense offered no evidence, but argued that the homicide was not unlawful, since
respondent lacked criminal intent. Alternatively, Wilbur's counsel asserted that, at most, the
homicide was manslaughter, rather than murder, since it occurred in the heat of passion provoked
by the homosexual assault.

IV.
The PEOPLE, Plaintiff and Respondent,
v.
George John BLAKELEY, Defendant and Appellant.

2000

On October 25, 1994, defendant George John Blakeley and his friend, David Fraire, spent the
early afternoon drinking brandy in a park in Vallejo, California. They then went to defendant's home.
Also there were Steven Blakeley (defendant's brother), Tony Santiago, and Lionel Vallo (a friend of
Santiago's). Fraire passed around bottles of beer, and Vallo bought $20 worth of methamphetamine
from defendant.

Vallo, who had been drinking, asked about the quality of the methamphetamine, saying that
some methamphetamine he had recently bought from Santiago had been "bunk." Santiago told Vallo,
"fuck you," and Vallo replied, "fuck you." Defendant said to both Santiago and Vallo, "shut the fuck
up"; Vallo told defendant, "you shut the fuck up."

Defendant told Vallo to leave the house. Vallo, who was six feet tall and weighed 205
pounds, swung a beer bottle at defendant, who was five feet five inches tall and weighed 140 pounds,
but missed. Defendant then hit Vallo in the head with an unopened bottle of beer. The bottle
shattered, cutting Vallo's cheek. After throwing a beer bottle at defendant, but missing him, Vallo
charged at defendant. Defendant drew a large knife from a sheath on his belt and a struggle ensued.
Santiago pulled Vallo off defendant. Vallo was bleeding heavily from a stab wound to the chest.
Fraire told defendant "let's go," and defendant, weeping, drove Fraire home.

After telling his friend Vallo, "You dying, ain't nothing I could do, you got it to the heart,"
Santiago asked Steven Blakeley (who had been out of the room during the fight) to "call 911" and
then left. The police and paramedics soon arrived but were unable to save Vallo, who died shortly
thereafter from a single stab wound to the heart. Defendant fled, eventually turning up at his uncle's
home in San Bernardino. His uncle called the police.

V.
THE PEOPLE, Plaintiff and Respondent,
v.
MANUEL DE JESUS SAILLE, Defendant and Appellant.

1991

On November 30, 1985, defendant started drinking at a friend's house shortly before noon.
He had drunk 15 to 18 beers by about 6 o'clock that evening; he then went to a bar and drank about 3
or 4 more beers. He was noticeably drunk when he went to Eva's Cafe about 9 p.m. The bartender
signalled the security guard, David Ballagh, to ask defendant to leave. Ballagh told defendant he
could not drink there because he appeared intoxicated and asked defendant to leave; defendant did
so. Defendant returned about an hour later, but was reminded by Ballagh that he could not come in.
Defendant left but returned again around 11 p.m. and was rebuffed once again by Ballagh. As he left
he said to Ballagh, "I'm going to get a gun and kill you."

Defendant went home around 1 a.m., got his rifle (a semiautomatic assault rifle), and returned
to the bar. As he entered the bar, defendant said to Ballagh, "I told you I would be back." Ballagh
tried to grab the rifle; it discharged and killed a patron. Defendant was eventually subdued outside
the bar; both he and Ballagh were shot during the struggle.

VI.
447 U.S. 410

ILLINOIS
v.
VITALE.

1980

On November 24, 1974, an automobile driven by respondent John Vitale, a juvenile, struck two
small children. One of the children died almost immediately; the other died the following day. A police
officer at the scene of the accident issued a traffic citation charging Vitale with failing to reduce speed to
avoid an accident in violation of § 11-601 (a) of the Illinois Vehicle Code. Ill. Rev. Stat., Ch. 95 1/2, §
11-601 (a) (1979). This statute provides in part that "speed must be decreased as may be necessary to
avoid colliding with any person or vehicle on or entering the highway in compliance with legal
requirements and the duty of all persons to use due care." On December 23, 1974, Vitale appeared in the
Circuit Court of Cook County, Ill., and entered a plea of not guilty to the charge of failing to reduce
speed. After a trial without a jury, Vitale was convicted and sentenced to pay a fine of $15.

VII.
Alfred Morris CABLE
v.
COMMONWEALTH of Virginia

1992

In the early morning of November 6, 1989, the first day of turkey hunting season, defendant, age 44,
and the victim, David Virgil Clowers, age 37, arrived together in a Warren County section of the
Washington National Forest, known as Shaw Gap, to hunt for turkeys.The homicide took place about
3:30 p.m. on a Massanutten Mountain range where the terrain was steep with dense vegetation and
small trees "very close together." The weather was "partly overcast" but the visibility was "very
good."

The defendant, an experienced hunter, and the victim were legally dressed in camouflage attire and
their faces were blackened. The defendant was armed with a 12-gauge semi-automatic shotgun. He
was carrying two types of ammunition in shells that looked "just alike" although labelled differently.
Some shells were packed with double-aught buckshot, "capable of inflicting very serious, grievous
wounds at a long distance," and others were packed with No. 4 birdshot, used for hunting small
game.

During the morning hours, and into the early afternoon, the pair had been hunting separately without
success. They saw no other persons in the woods, nor any turkeys. After they met for lunch, they
decided to hunt for squirrels, which were also in season. Defendant decided to change the load in his
weapon. He removed the double-aught buckshot shells and thought he inserted shells with No. 4
birdshot. The duo decided to separate again and the defendant "walked about 30 yards over the hill."
The victim remained "on top of the mountain."

About 10 to 15 minutes passed and defendant heard gunshot to his right rear and behind him; he
thought it was the victim shooting. "Maybe 20 minutes" later, defendant heard a squirrel "barking off
to the right." Defendant started walking towards the sound of the squirrel, which defendant estimated
came from 20 yards away. Defendant continued walking towards the sound and a ravine,
approaching "a big old tree."

According to the defendant, "when I got to the edge of it, I just stopped because I did not want to
cross it, because it was thick through there." Continuing, defendant said: "So, when I stopped, I heard
something like a squirrel jumping out of the tree. I turned, put my gun up, and I seen a flash of
movement and I shot ... it was just a flash of movement," black in color.

After defendant fired, the victim "hollered, `Alfred, damn it, you shot me, buddy.' " Defendant stated
that the vegetation was so thick at the scene that even if the victim had been wearing an orange vest,
he would not have seen him through the foliage. Defendant, who was not wearing eyeglasses,
admitted that "for a long time" his distance vision had been impaired but he had not obtained glasses
before the incident.
At the time he fired, defendant had "no idea" the victim "was in that area." The record does not
reveal the distance between the defendant and the victim when he was shot. According to defendant,
"He was, I guess, across the ravine like, on the other side sort of."

The victim immediately had difficulty breathing. After rendering aid to the victim, the distraught
defendant went down the mountain seeking medical assistance for his friend. The defendant, along
with rescue personnel, returned to the scene about two hours later to find that the victim had died. He
had sustained two penetrating buckshot wounds, one entering the left rear rib cage and the other
entering the waist area at the left rear. The former wound caused the death.

VIII.
THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL HANSEN, Defendant and Appellant.

On September 19, 1991, defendant Michael Hansen, together with Rudolfo Andrade and
Alexander Maycott, planned to purchase $40 worth of methamphetamine. With that purpose,
defendant, accompanied by his girlfriend Kimberly Geldon and Maycott, drove in defendant's
Camaro to an apartment duplex located in the City of San Diego. Upon arriving at the duplex,
defendant pounded on the door of the upstairs apartment where Christina Almenar resided with her
two children. When he received no response, defendant proceeded to return to his automobile and
was approached by Michael Echaves.

Echaves resided in the downstairs apartment with Martha Almenar (Christina's sister) and
Martha's two children, Diane Rosalez, thirteen years of age, and Louie Miranda, five years of age. At
the time, Diane and Louie were outside with Echaves helping him with yard work. In response to a
question from Echaves, defendant said he was looking for Christina. When Echaves stated he had not
seen her, defendant asked whether Echaves would be able to obtain some crystal methamphetamine
(speed). After making a telephone call, Echaves informed defendant that he would be able to do so.
Defendant said he would attempt to purchase the drug elsewhere but, if unsuccessful, would return.

Defendant and his companions departed but returned approximately 20 minutes later.
Defendant, accompanied by Echaves, Maycott, and Geldon, then drove a short distance to another
apartment complex. Defendant parked his vehicle, gave Echaves two $20 bills, and told Echaves he
would wait while Echaves obtained the methamphetamine. Echaves said he would be back shortly.

When Echaves failed to return, defendant and his companions proceeded to Echaves's
apartment. Defendant knocked on the door and the windows. Diane and Louie were inside the
apartment alone but did not respond. Their mother, Martha, had left the apartment to meet Echaves,
who had telephoned her after eluding defendant. After meeting Echaves at a hardware store, Martha
telephoned her children from a public telephone booth. Diane answered and told her mother that the
"guys in the Camaro" had returned, pounded on the door, and then had left.

Meanwhile, defendant, Maycott, and Geldon returned to the location where Andrade was
waiting for them, acquiring en route a handgun from an acquaintance. The three men then decided to
return to Echaves's apartment with the objective either of recovering their money or physically
assaulting Echaves. At approximately 7:30 p.m., defendant approached the apartment building in his
automobile with the lights turned off, and then from the vehicle fired the handgun repeatedly at the
dwelling. At the time, Diane was inside the apartment, in the living room with her brother. The
kitchen and living room lights were on. Diane was struck fatally in the head by one of the bullets
fired by defendant.

On the basis of information furnished by witnesses to the shooting, the police were able to
trace to defendant the vehicle from which the shots had been fired. On September 20, at
approximately 3 a.m., police officers arrested defendant at the room of a motel where he was staying.
Searching the trunk of his Camaro, the police discovered a nine-millimeter semiautomatic handgun
and an empty ammunition clip for the weapon.

Five bullet holes were found at the scene of the homicide inside the apartment. It later was
determined that shell casings and three bullets recovered at that location had been fired from the
handgun found inside the trunk of defendant's vehicle.

IX.
The PEOPLE, Plaintiff and Respondent,
v.
Milton Otis LEWIS, Defendant and Appellant.

2001

In December 1988, James and Helen Rumsey lived in a unit of the Shasta Pines Apartments
in Redding. Marie Baker, a methamphetamine user, lived in another unit in the same building.
Staying with Baker at that time was 15-year-old Amy Hadix, who also used methamphetamine
regularly. June Rice, another renter at the Shasta Pines Apartments, sold drugs from her apartment.
On December 21, 1988, defendant, who knew Rice and was a methamphetamine user, came to Rice's
apartment with a man who wanted to sell some drugs. Rice directed them to Baker's apartment. On
December 24, 1988, around 10:00 or 11:00 a.m., the Rumseys came to Baker's apartment to give her
back some money they owed her. In defendant's presence, James Rumsey pulled a wallet from his
back pocket and removed $50, which he 641*641 handed to Baker. A short time later, also in
defendant's presence, Baker's eight-year-old daughter commented on James Rumsey's money, saying,
"Oh, Mom, he's got gobs."

Later that day, defendant went to June Rice's apartment and bought a halfgram of
methamphetamine with money he had taken from a man after a fistfight in Baker's apartment. After
injecting the drugs, he told Rice they were "decent." When he returned to Baker's apartment,
however, he complained to Baker and Hadix that the drugs were no good. They told him to return to
Rice's apartment to get either more drugs or his money back. When Hadix said she was going
downstairs to visit another renter, defendant went with her.

As Hadix passed the Rumseys' first floor apartment, she noticed the door was ajar, and she
greeted James, who was seated in an easy chair just inside the doorway. Suddenly, defendant jumped
on James and stuck a knife in his neck. He then reached into James's back pocket, pulled out his
wallet and opened it, but found no money in it.
 When Helen Rumsey tried to come to her husband's aid, defendant kicked her hard in the
groin area, causing her to fall. As she got up, defendant thrust the knife into her throat, and she fell to
the floor again. Defendant returned to James and tried to reach into the front pocket of his pants, but
he was unsuccessful. He turned James's body over and retrieved a pocketknife from his back pocket.
Defendant then picked up a gun belonging to James from a nearby table and held it to Helen's
forehead as she struggled to her knees. Yelling obscenities at her, defendant threatened to shoot
unless he got some money. He pulled the trigger, and Helen heard a click. She then crawled to where
James was lying, opened the wallet defendant had looked in but discarded, and removed $250 in $50
bills that had been hidden in a secret compartment. After Helen handed defendant the money, he
picked up James's pocketknife and gun, grabbed the knife he had brought with him, and walked out
the door.

Meanwhile, Hadix had run to Tim Smith's apartment and told him that defendant was killing
the Rumseys. A few minutes later, defendant appeared at Smith's door and told Hadix to come with
him to June Rice's apartment. On arrival, defendant pulled James's gun from his pocket and pointed it
at Rice, complaining about "bunk dope." Hadix ran to the bathroom in fright but came out a minute
later after hearing a neighbor yell that Helen Rumsey had been stabbed. She ran to Baker's apartment,
and defendant followed.

Once back inside Baker's apartment, defendant went to the kitchen to wash blood from his
hands. He ordered Baker to hold the gun for him, but she refused. Defendant then handed Baker $250
in $50 bills and told her to hold the money for him. He told Hadix to come with him, and they left.
Baker later found defendant's buck knife on her kitchen counter. She wrapped it and threw it away.
As to the money defendant had left with her, she spent $50 on groceries and the rest on
methamphetamine.

After leaving Baker's apartment, defendant, accompanied by Hadix, hid the gun in a shed
behind the apartment complex. They then proceeded to a garbage bin belonging to a nearby church.
Defendant opened the lid, threw Hadix inside, and then jumped in himself. They hid there for six or
seven hours. During this time, Hadix asked defendant why he had killed James Rumsey. Defendant
replied, "It had to be done." The next morning, defendant and Hadix returned to the shed to retrieve
the gun, and, at Hadix's suggestion, they went to her parents' home, which was close by.

Shortly thereafter, the police arrived at the home of Hadix's parents. When Hadix's father
opened the door for the officers, defendant fled into the bathroom. Defendant ignored the officers'
orders to put his gun down and come out. Forty-five minutes later, defendant emerged, leaving the
gun in the bathroom. An autopsy showed that James Rumsey died from hemorrhaging caused by a
five inch-deep knife wound to the front of the neck. Helen Rumsey sustained knife wounds to the
side and back of her neck; one of these wounds was directly over the carotid artery. Forensic testing
showed that the gun retrieved from the bathroom of Hadix's parents' home was the gun taken from
the Rumseys' apartment. The gun held a full magazine, but there was no round in the chamber.
 X
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Richard J. MENDOZA, Defendant-Appellee.

2003

Defendant and codefendant Ivan Tims visited the home of victim William Stockdale and
Stockdale's nephew, Thurman Chillers, with the intent to purchase marijuana. Tims initially waited
outside in the car while defendant discussed the price of the drugs with Stockdale and Chillers in the
house. Agreeing on a price, defendant indicated to Stockdale that he had to return to the car to get
additional money. When defendant returned to the house, he was accompanied by Tims. Both men
brandished handguns.

Chillers testified that, upon entering the home, defendant instructed Tims to "shoot him." In
response, Tims alternately pointed his gun at Chillers and Stockdale. Stockdale, in turn, rushed at
defendant, grabbed defendant's gun and swung it downwards. Chillers ran out of the house. As he
ran, he saw Stockdale "tussling" with defendant. Chillers further testified that he heard one shot
while he was in the house and four or five more shots when he was outside. In the end, Stockdale
was shot twice, once in the leg and once in the chest. The chest wound proved fatal.

Defendant was charged with first-degree murder, M.C.L. § 750.316, and possession of a
firearm during the commission of a felony, M.C.L. § 750.227b. His defense was that Tims shot
Stockdale. Defendant elicited testimony from various witnesses establishing that defendant was not
in the house when the victim was fatally wounded and that the fatal bullet came from a gun traceable
to Tims.
 447 U.S. 410 (1980)

ILLINOIS
v.
VITALE.
No. 78-1845.

Supreme Court of United States.

Argued January 8, 1980.

Decided June 19, 1980.
CERTIORARI TO THE SUPREME COURT OF ILLINOIS.

411*411 James S. Veldman argued the cause for petitioner. With him on the briefs were William J.
Scott, Attorney General of Illinois, Donald B. MacKay and Melbourne A. Noel, Jr., Assistant
Attorneys General, Bernard Carey, and Marcia B. Orr.

Lawrence G. Dirksen argued the cause and filed a brief for respondent.

MR. JUSTICE WHITE delivered the opinion of the Court.

The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment prohibits
the State of Illinois (State) from prosecuting for involuntary manslaughter the driver of an
automobile involved in a fatal accident, who previously has been convicted for failing to reduce
speed to avoid the collision.

I
On November 24, 1974, an automobile driven by respondent John Vitale, a juvenile, struck two small
children. One of the children died almost immediately; the other died the following day. A police
officer at the scene of the accident issued a traffic citation charging Vitale with failing to reduce
speed to avoid an accident in violation of § 11-601 (a) of the Illinois Vehicle Code. Ill. Rev. Stat., ch.
95 1/2, § 11-601 (a) (1979). This statute provides in part that "[s]peed must be 412*412 decreased as
may be necessary to avoid colliding with any person or vehicle on or entering the highway in
compliance with legal requirements and the duty of all persons to use due care." [1]

On December 23, 1974, Vitale appeared in the Circuit Court of Cook County, Ill., and entered a plea
of not guilty to the charge of failing to reduce speed.[2] After a trial without a jury, Vitale was
convicted and sentenced to pay a fine of $15.[3]

On the following day, December 24, 1974, a petition for adjudication of wardship was filed in the
juvenile division of 413*413 the Circuit Court of Cook County, charging Vitale with two counts of
involuntary manslaughter.[4] The petition, which was signed by the police officer who issued the
traffic citation, alleged that Vitale "without lawful justification while recklessly driving a motor
vehicle caused the death of" the two children killed in the November 20, 1974, accident. App. 2-4.
Vitale's counsel filed a motion to dismiss on the grounds, among others, that the manslaughter
prosecution was "violative of statutory and/or constitutional double jeopardy," id., at 7, because of
Vitale's previous conviction for failing to reduce speed to avoid the accident. The juvenile court
found it unnecessary to reach a constitutional question because it held that the manslaughter
prosecution was barred by Illinois statutes requiring, with certain nonpertinent exceptions, that all
offenses based on the same conduct be prosecuted in a single prosecution. Ill. Rev. Stat., ch. 38, §§ 3-
3 and 3-4 (b) (1) (1979).[5] The juvenile court dismissed the petition for 414*414 adjudication of
wardship and the State appealed. The Appellate Court of Illinois, First District, In re Vitale, 44 Ill.
App. 3d 1030, 358 N. E. 2d 1288 (1976), affirmed the holding that the manslaughter prosecution was
barred by the state compulsory joinder statutes. Ill. Rev. Stat., ch. 38, §§ 3-3 and 3-4 (b) (1) (1979).

The Supreme Court of Illinois, with two justices dissenting, affirmed on other grounds. In re Vitale,
71 Ill. 2d 229, 375 N. E. 2d 87 (1978). The court did not reach the state statutory question for it
found "a more compelling reason why respondent cannot be prosecuted for the offense of involuntary
manslaughter": the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through
the Due Process Clause of the Fourteenth Amendment. After analyzing the elements of each offense,
the court held that because "the lesser offense, failing to reduce speed, requires no proof beyond that
which is necessary for conviction of the greater, involuntary manslaughter, . . . for purposes of the
double jeopardy clause, the greater offense is by definition the `same' as the lesser offense included
within it." Id., at 239, 375 N. E. 2d, at 91. Thus the court concluded that the manslaughter 415*415
prosecution was barred by the Double Jeopardy Clause.

The dissenting justices argued that the manslaughter prosecution was not barred by the Double
Jeopardy Clause because the homicide charge could be proved by showing one or more reckless acts
other than the failure to reduce speed. Id., at 242, 251-253, 375 N. E. 2d, at 93, 96-97 (Underwood,
J., joined by Ryan, J., dissenting).

On November 27, 1978, we granted the State's petition for certiorari, vacated the judgment, and
remanded the case to the Supreme Court of Illinois to consider whether its judgment was based upon
federal or state constitutional grounds. 439 U. S. 974 (1978). After the Supreme Court of Illinois, on
remand, certified that its judgment was based upon federal constitutional grounds, we again granted a
writ of certiorari. 444 U. S. 823 (1979).

II
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for
the same offence to be twice put in jeopardy of life or limb." This constitutional guarantee is
applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v.
Maryland, 395 U. S. 784 (1969), and it applies not only in traditional criminal proceedings but also
in the kind of juvenile proceedings Vitale faced. Breed v. Jones, 421 U. S. 519 (1975).

The constitutional prohibition of double jeopardy has been held to consist of three separate
guarantees: (1) "It protects against a second prosecution for the same offense after acquittal. [(2) I]t
protects against a second prosecution for the same offense after conviction. [(3)] And it protects
against multiple punishments for the same offense." North Carolina v. Pearce, 395 U. S. 711, 717
(1969) (footnotes omitted). Because Vitale asserts that his former conviction for failing to reduce
speed bars his manslaughter prosecution, we are concerned with only the second of these three
guarantees in the instant case. The sole question before us is whether the 416*416 offense of failing to
reduce speed to avoid an accident is the "same offense" for double jeopardy purposes as the
manslaughter charges brought against Vitale.

In Brown v. Ohio, 432 U. S. 161 (1977), we stated the principal test for determining whether two
offenses are the same for purposes of barring successive prosecutions. Quoting from Blockburger v.
United States, 284 U. S. 299, 304 (1932), which in turn relied on Gavieres v. United States, 220 U. S.
338, 342-343 (1911), we held that

"`[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not.'" 432 U. S., at 166.

We recognized that the Blockburger test focuses on the proof necessary to prove the statutory
elements of each offense, rather than on the actual evidence to be presented at trial. Thus we stated
that if "`each statute requires proof of an additional fact which the other does not,' Morey v.
Commonwealth, 108 Mass. 433, 434 (1871)," the offenses are not the same under the Blockburger
test. 432 U. S., at 166 (emphasis supplied); Iannelli v. United States, 420 U. S. 770, 785, n. 17
(1975).[6]

III
We accept, as we must, the Supreme Court of Illinois' identification of the elements of the offenses
involved here. Under Illinois law, involuntary manslaughter with a motor vehicle involves a
homicide by the "reckless operation of a motor vehicle in a manner likely to cause death or great
bodily 417*417 harm." In re Vitale, 71 Ill. 2d, at 239, 375 N. E. 2d, at 91. The charge of failing to
reduce speed on which respondent was convicted requires proof "that the defendant drove carelessly
and failed to reduce speed to avoid colliding with a person." Id., at 238, 375 N. E. 2d at 91. The
Illinois court, after specifying these elements, then stated that "the lesser offense, failing to reduce
speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary
manslaughter" and concluded, as a matter of federal law, that "the greater offense is by definition the
`same' as the lesser offense included within it." Id., at 239, 375 N. E. 2d, at 91.

The Illinois court relied upon our holding in Brown v. Ohio, supra, that a conviction for a lesser-
included offense precludes later prosecution for the greater offense. There, Brown was first convicted
of joyriding in violation of an Ohio statute under which it was a crime to "take, operate, or keep any
motor vehicle without the consent of its owner." He was then convicted under another statute of
stealing the same motor vehicle. The Ohio courts had held that every element of the joyriding "is also
an element of the crime of auto theft," and that to prove auto theft one need prove in addition to
joyriding only the intent permanently to deprive the owner of possession. Holding that the second
prosecution was barred, by the Double Jeopardy Clause and the Fourteenth Amendment, we
observed that "the prosecutor who has established joyriding need only prove the requisite intent in
order to establish auto theft." Id., at 167. But we also noted that "the prosecutor who has established
auto theft necessarily has established joyriding as well." Id., at 168.

Both observations were essential to the Brown holding. Had the State been able to prove auto theft,
without also proving that the defendant took, operated, or kept the auto without the consent of the
owner—if proof of the auto theft had not necessarily involved proof of joyriding—the successive
prosecutions would not have been for the "same offense" within the meaning of the Double Jeopardy
Clause.

418*418 Vitale does not dispute this proposition, but insists that the Illinois court fully satisfied
Brown when it held that the lesser offense of failure to reduce speed "requires no proof beyond that
which is necessary for a conviction of the greater, involuntary manslaughter." It is clear enough from
the opinion below that manslaughter by motor vehicle could be proved against Vitale by showing a
death caused by his recklessly failing to slow his vehicle to avoid a collision with the victim. Proving
manslaughter in this way would also prove careless failure to slow; nothing more would be needed to
prove the latter offense, an offense for which Vitale has already been convicted.

The State, however, does not concede that its manslaughter charge will or must rest on proof of a
reckless failure to slow; it insists that manslaughter by automobile need not involve any element of
failing to reduce speed. The petition for wardship charging manslaughter alleged only that Vitale
"without lawful justification, while recklessly driving a motor vehicle, caused [two] death[s]" in
violation of the manslaughter statute. Further, the dissenting justices relied upon the absence of any
showing that the manslaughter charge on which respondent had not been tried, would rest upon his
reckless failure to reduce speed. Nor could it be known, in their view, what particular reckless acts
might be relied upon to prove the homicide charge.[7] The State agrees, and submits 419*419 that
because it is not necessary to prove a failure to slow to establish manslaughter, the rule of Brown v.
Ohio does not bar its homicide case against Vitale.

The Illinois Supreme Court did not expressly address the contentions that manslaughter by
automobile could be proved without also proving a careless failure to reduce speed, and we are
reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved
here as an authoritative holding that under Illinois law proof of manslaughter by automobile would
always involve a careless failure to reduce speed to avoid a collision.

Of course, any collision between two automobiles or between an automobile and a person involves a
moving automobile and in that sense a "failure" to slow sufficiently to avoid the accident. But such a
"failure" may not be reckless or even careless, if, when the danger arose, slowing as much as
reasonably possible would not alone have avoided the accident. Yet, reckless driving causing death
might still be proved if, for example, a driver who had not been paying attention could have avoided
the accident at the last second, had he been paying attention, by simply swerving his car. The point is
that if manslaughter by automobile does not always entail proof of a failure to slow, then the two
offenses are not the "same" under the Blockburger test. The mere possibility that the State will seek
to rely on all of the ingredients necessarily included in the traffic offense to establish an element of
its manslaughter case would not be sufficient to bar the latter prosecution.

IV
If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter
by automobile, then the two offenses are the "same" under Blockburger and 420*420 Vitale's trial on
the latter charge would constitute double jeopardy under Brown v. Ohio.[8] In any event, it may be
that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to
rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case,
because Vitale has already been convicted for conduct that is a necessary element of the more serious
crime for which he has been charged, his claim of double jeopardy would be substantial under Brown
and our later decision in Harris v. Oklahoma, 433 U. S. 682 (1977).

In Harris, we held, without dissent, that a defendant's conviction for felony murder based on a killing
in the course of an armed robbery barred a subsequent prosecution against the same defendant for the
robbery. The Oklahoma felony-murder statute on its face did not require proof of a robbery to
establish felony murder; other felonies could underlie a felony-murder prosecution.[9] But for the
purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony
murder as a separate offense distinct from its various elements. Rather, we treated a killing in the
course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-
included offense. The State conceded that the robbery for which petitioner had been indicted was in
fact the underlying felony, all elements of 421*421 which had been proved in the murder prosecution.
We held the subsequent robbery prosecution barred under the Double Jeopardy Clause, since under
In re Nielsen, 131 U. S. 176 (1889), a person who has been convicted of a crime having several
elements included in it may not subsequently be tried for a lesser-included offense—an offense
consisting solely of one or more of the elements of the crime for which he has already been
convicted. Under Brown, the reverse is also true; a conviction on a lesser-included offense bars
subsequent trial on the greater offense.

By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow
to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a
substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United
States Constitution.

V
Because of our doubts about the relationship under Illinois law between the crimes of manslaughter
and a careless failure to reduce speed to avoid an accident, and because the reckless act or acts the
State will rely on to prove manslaughter are still unknown, we vacate the judgment of the Illinois
Supreme Court and remand the case to that court for further proceedings not inconsistent with this
opinion.[10]

So ordered.

MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and
MR. JUSTICE MARSHALL join, dissenting.

The controlling issue in this case is whether respondent's failure to reduce speed to avoid a collision,
in violation of 422*422 § 11-601 (a) of the Illinois Motor Vehicle Code,[1] was a lesser offense
included within the greater offense of killing a person by the reckless "driving of a motor vehicle," in
violation of § 9-3 (b) of the Illinois Criminal Code.[2] The Illinois Supreme Court held that it was and
that, because respondent had already been convicted on the lesser charge, the State was barred by the
Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth
Amendment, from prosecuting him on the greater charge.

There are two separate reasons, each of which is sufficient in itself, for affirming the judgment of the
Illinois Supreme Court. First, after applying the test set forth in Brown v. Ohio, 432 U. S. 161, the
Illinois Supreme Court made a finding that failing to reduce speed to avoid a collision is a lesser-
included offense of reckless homicide as a matter of state law. This Court clearly has a duty to
respect that finding. Second, even if the dissenting members of the Illinois Supreme Court were
correct in their view that, as a matter of state law, the traffic offense is not necessarily a lesser-
included 423*423 offense in every reckless homicide prosecution, the Double Jeopardy Clause bars
the homicide prosecution under the particular facts of this case. For, even if the State intended to rely
on evidence other than respondent's failure to reduce speed to establish the element of reckless
driving necessary for a homicide conviction, the prosecutor's failure to apprise the respondent and the
court of such a theory at some point in the lengthy proceedings on the double jeopardy issue should
bar the second trial in this case.

I
Relying on Blockburger v. United States, 284 U. S. 299, the Court holds that the question the Illinois
Supreme Court should have addressed in this case was whether proof of reckless homicide by vehicle
will always, in each and every case, establish the defendant's guilt of the traffic offense as well. If
not, the Court states that the traffic offense is not necessarily the "same offense" for double jeopardy
purposes and therefore the second prosecution may not be barred by the Double Jeopardy Clause.[3]
Ante, at 419. The Court then goes on to discuss the position of the dissenting justices in the Illinois
Supreme Court that it is theoretically possible for an Illinois prosecutor to prove a charge of reckless
homicide by vehicle without proving a failure to reduce speed in order to avoid a collision. Because
it finds the majority's response to this argument "cryptic," the Court refuses to accept the Illinois
court's clear determination that the traffic offense is a lesser-included offense of reckless homicide;
instead, it reverses and remands for a new determination as to whether "under Illinois law proof of
manslaughter by automobile would always involve a careless failure to reduce speed to avoid a
collision."[4]

424*424 I cannot agree that this is an appropriate disposition. As the Court itself recognizes, it is not
the province of this or any other federal court to tell the State of Illinois what is or is not a lesser-
included offense under state law.[5] To the extent that this Court has any role at all, it is to ensure that
the States apply the proper analytic framework insofar as they rely on the Double Jeopardy Clause of
the Federal Constitution. Unlike the Court, I have no doubt that in this case the Illinois Supreme
Court did apply the proper test.

As the dissenting justices in the Illinois Supreme Court pointed out at some length, the Illinois courts
are hardly unfamiliar with the Blockburger test, having consistently applied it for many years in
determining whether two offenses are the same for purposes of either the Double Jeopardy Clause or
the State's own compulsory joinder statute. In re Vitale, 71 Ill. 2d 229, 244-245, 375 N. E. 2d 87, 93-
94 (1978). In this case the majority of the Illinois court did not purport 425*425 to deviate from that
test. On the contrary, it relied heavily on this Court's opinion in Brown v. Ohio, supra, which in turn
relied upon Blockburger.

Thus, after examining the statutory definitions of the two crimes at issue in this case, without
reference to the particular facts of this case, the Illinois Supreme Court concluded:

"As is usually the situation between greater and lesser included offenses, the lesser offense, failing to
reduce speed, requires no proof beyond that which is necessary for conviction of the greater,
involuntary manslaughter. Accordingly, for purposes of the double jeopardy clause, the greater
offense is by definition the `same' as the lesser offense included within it." 71 Ill. 2d, at 239, 375 N.
E. 2d, at 91.

In so holding, the court made the same finding as this Court did in Brown v. Ohio:

"Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto
theft, as defined by that court, constitute 'the same statutory offense' within the meaning of the
Double Jeopardy Clause. App. 23. For it is clearly not the case that `each [statute] requires proof of a
fact which the other does not.' 284 U. S., at 304. As is invariably true of a greater and lesser included
offense, the lesser offense—joyriding—requires no proof beyond that which is required for
conviction of the greater—auto theft. The greater offense is therefore by definition the 'same' for
purposes of double jeopardy as any lesser offense included in it." 432 U. S., at 168.

Having made the finding required by Brown v. Ohio, based on its interpretation of its own law, the
Illinois Supreme Court should not now be required to go through the process all over again simply to
assure this Court that it really meant what it plainly said.

426*426
II
In Part IV of its opinion the Court states that, even if the Illinois Supreme Court should hold on
remand that failure to reduce speed is not always a lesser-included offense as a matter of state law,
respondent will still have a "substantial" double jeopardy claim if the State finds it necessary to rely
on his failure to reduce speed in order to sustain its manslaughter case. In my opinion such a claim
would not merely be "substantial"; it would be dispositive.

In Harris v. Oklahoma, 433 U. S. 682, we held that a conviction on a felony-murder charge barred a
subsequent prosecution for robbery, where the robbery had been used to establish the requisite intent
on the murder charge. Cf. Whalen v. United States, 445 U. S. 684. Since it was theoretically possible
that a different felony could have supported the murder charge, such a result may not have been
required by a literal application of the Blockburger test, see Whalen v. United States, supra, at 708-
711 (REHNQUIST, J., dissenting). However, the entire Court agreed that it was required by the
Double Jeopardy Clause. In this case, it is equally clear that the State could not use respondent's
failure to reduce speed to avoid a collision as the reckless act necessary to establish reckless
homicide by vehicle, even if theoretically his recklessness could be proved in some other way.

Throughout the five years that this case has been in litigation, the State has apparently not seen fit to
reveal the basis of its homicide prosecution. The Court does not view this omission as an important
one. On the contrary, its opinion implies that the State may proceed to trial before a determination is
made on respondent's double jeopardy claim. But surely such a procedure is inconsistent with the
Double Jeopardy Clause, which was specifically designed to protect the citizen from multiple trials.
The vital interest in avoiding an unlawful second trial led the Court in Abney v. United States, 431 U.
S. 651, to allow an appeal in advance of trial 427*427 in order to assure the defendant that the
substance of his constitutional right to be protected against double jeopardy would not be lost before
his plea could be vindicated. In that case the Court emphasized that "the Double Jeopardy Clause
protects an individual against more than being subjected to double punishments. It is a guarantee
against being twice put to trial for the same offense." Id., at 660-661 (emphasis in original).
Continuing, the Court stated:
"Because of this focus on the `risk' of conviction, the guarantee against double jeopardy assures an
individual that, among other things, he will not be forced, with certain exceptions, to endure the
personal strain, public embarrassment, and expense of a criminal trial more than once for the same
offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Mr.
Justice Black aptly described the purpose of the Clause:
"`The underlying idea, one that is deeply ingrained in at least the Anglo-American system of
jurisprudence, is that the State with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'
Green [v. United States, 355 U. S. 184,] 187-188.
". . . [I]f a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full
protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before
that subsequent exposure occurs." Id., at 661-662. (Emphasis in original.)

If a defendant is entitled to have an appellate court rule on his double jeopardy claim in advance of
trial, he is surely entitled to a definitive ruling by the trial court in advance 428*428 of trial. Since the
State has not provided the respondent with notice of any basis for the prosecution that does not
depend upon proving, for the second time, a careless failure to reduce speed, I would not require this
respondent to stand trial again.

I respectfully dissent.

[1] Section 11-601 (a) of the Illinois Vehicle Code, Ill. Rev. Stat., ch. 95 1/2, § 11-601 (a) (1979), provides:

"No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard
to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a
vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when
approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when
traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by
reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or
vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care."

[2] With respect to the traffic offense, the record contains a copy of the complaint, which charged that respondent on
"Wednesday, November 20, 1974, 12:29 p. m., did then and there operate a certain motor vehicle upon a public highway of this
State, to wit 170th and Ingleside in Thornton, situated in Cook County, Illinois, and did then and there violate section 11-601 (a)
of the Illinois Vehicle Code by failure to reduce speed to avoid an accident." (Record 66-67.) Notations on the back of the
complaint indicate that Vitale pleaded not guilty, waived a jury trial, was found guilty, and fined.

[3] Failing to reduce speed to avoid an accident is punishable by no more than 30 days in jail or by a fine of no more than $500.
Ill. Rev. Stat., ch. 95 1/2, § 16-104 (a) (1975), and ch. 38, §§ 1005-9-1 and 1005-8-3 (1979).

[4] At the time Vitale was prosecuted, § 9-3 of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, § 9-3 (1973), provided:

"(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or
unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs
them recklessly. (b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for
reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless
homicide."

[5] Section 3-3 of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, § 3-3 (1979), provides:
"(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be
prosecuted for each such offense. (b) If the several offenses are known to the proper prosecuting officer at the time of
commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution,
except as provided in Subsection (c), if they are based on the same act. (c) When 2 or more offenses are charged as required by
Subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately."

Section 3-4 (b) of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, § 3-4 (b) (1979), provides in pertinent part:

"A prosecution is barred if the defendant was formerly prosecuted for a different offense, . . . if such former prosecution: (1)
Resulted in either a conviction or an acquittal, and the subsequent prosecution . . . was for an offense with which the defendant
should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate
trial of such charge). . . ."

The juvenile court held that because the prosecution knew at the time the traffic offense was prosecuted that the automobile
accident had resulted in the deaths that were the basis of the manslaughter charges, § 3-3 required that the traffic offense and the
manslaughter charges be prosecuted in a single prosecution. The court therefore concluded that the manslaughter prosecution was
barred by § 3-4 (b) (1).

[6] In Iannelli v. United States, 420 U. S., at 785, n. 17, we stated: "[T]he Court's application of the test focuses on the statutory
elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a
substantial overlap in the proof offered to establish the crimes."

[7] "The petition for wardship may have been based on Vitale's acts in permitting his attention to be diverted while driving at a
high rate of speed, failing to appropriately maintain the vehicle's braking system, failing to note the seven school zone and speed
warning signs, initially raising the speed of his auto to a dangerous level, or by disobeying the commands of the crossing guard.
While we do not now know which of that series of acts the State intended to rely on at trial, one certainly cannot now say that it
would rely solely upon Vitale's failure to reduce speed to the exclusion of his other misconduct." In re Vitale, 71 Ill. 2d 229, 251,
375 N. E. 2d 87, 97 (1978) (Underwood, J., dissenting).

The police report concerning Vitale's accident noted that the brakes on the automobile were defective and that there had been a
school crossing guard and a stop sign at the intersection where the accident occurred. (Record 29, 30.)

[8] We recognized in Brown v. Ohio, 432 U. S., at 169, n. 7 that "[a]n exception may exist where the State is unable to proceed
on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have
not been discovered despite the exercise of due diligence." This exception is not applicable here because the trial court found that
the prosecution was aware that Vitale's accident had resulted in two deaths at the time he was prosecuted for failing to reduce
speed.

[9] The Oklahoma felony-murder statute under which Harris was convicted, Okla. Stat., Tit. 21, § 701 (3) (1971), provided that
homicide is murder "[w]hen perpetrated without any design to effect death by a person engaged in the commission of any
felony."

[10] We note also that the Illinois Supreme Court did not reach the question whether the lower Illinois courts were correct in
dismissing the manslaughter case under the State's compulsory joinder statute.

[1] Illinois Rev. Stat., ch. 95 1/2, § 11-601 (a) (1979), provides:

"No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard
to traffic conditions and the use of the highway, or endangers the safety of any person or, property. The fact that the speed of a
vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when
approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when
traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by
reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or
vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care." (Emphasis
supplied.)
[2] "If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless
homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless
homicide." Ill. Rev. Stat., ch. 38, § 9-3 (b) (1973).

[3] See the discussion of Part IV of the Court's opinion, infra, at 426.

[4] "The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved
without also proving a careless failure to reduce speed, and we are reluctant to accept its rather cryptic remarks about the
relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by
automobile would always involve a careless failure to reduce speed to avoid a collision." Ante, at 419.

[5] Despite its apparent agreement with the dissenters' reading of the Illinois statutes, see ibid., the Court does not hold that the
Illinois Supreme Court is foreclosed from concluding on remand that failure to reduce speed is a lesser-included offense of
reckless homicide by vehicle. On the contrary, the Court states:

"If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the
two offenses are the `same' under Blockburger and Vitale's trial on the latter charge would constitute double jeopardy under
Brown v. Ohio." Ante, at 419-420.

See also Brown v. Ohio, 432 U. S. 161, 167, where the Court reiterated that state courts "`have the final authority to interpret . . .
that State's legislation.' Garner v. Louisiana, 368 U. S. 157, 169 (1961)," and thus accepted as "authoritative" the Ohio courts'
definition of the elements of the two offenses.
 415 S.E.2d 218 (1992)

Alfred Morris CABLE

v.
COMMONWEALTH of Virginia.
Record No. 911152.

Supreme Court of Virginia.

February 28, 1992.

B.R. Hicks, Springfield, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for
appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY and

HASSELL, JJ., and HARRISON, Retired Justice.

COMPTON, Justice.

Tried by a jury in the Circuit Court of Warren County, appellant Alfred Morris
Cable was convicted of involuntary manslaughter for the killing of his hunting
companion. The defendant appeals the Court of Appeals' affirmance of that
conviction, Cable v. Commonwealth, 12 Va. App. 565, 405 S.E.2d 444 (1991),
with the sole appellate issue being whether the evidence was sufficient to support
the jury's verdict.

The facts are undisputed, although some are susceptible of conflicting inferences.
Therefore, applying settled appellate principles, we will state the facts in the light
most favorable to the Commonwealth, which prevailed in the trial court.

In the early morning of November 6, 1989, the first day of turkey hunting season,
defendant, age 44, and the victim, David Virgil Clowers, age 37, arrived together
in a Warren County section of the 219*219 George Washington National Forest,
known as Shaw Gap, to hunt for turkeys.

The area was open to the public. The most popular activity conducted there was
hunting, although it was "common to find backpackers, hikers, birdwatchers, [and]
people that look at trees and flowers" present in the area. The homicide took place
about 3:30 p.m. on a Massanutten Mountain range where the terrain was steep with
dense vegetation and small trees "very close together." The weather was "partly
overcast" but the visibility was "very good."

The defendant, an experienced hunter, and the victim were legally dressed in
camouflage attire and their faces were blackened. The defendant was armed with a
12-gauge semi-automatic shotgun. He was carrying two types of ammunition in
shells that looked "just alike" although labelled differently. Some shells were
packed with double-aught buckshot, "capable of inflicting very serious, grievous
wounds at a long distance," and others were packed with No. 4 birdshot, used for
hunting small game.

During the morning hours, and into the early afternoon, the pair had been hunting
separately without success. They saw no other persons in the woods, nor any
turkeys. After they met for lunch, they decided to hunt for squirrels, which were
also in season. Defendant decided to change the load in his weapon. He removed
the double-aught buckshot shells and thought he inserted shells with No. 4
birdshot. The duo decided to separate again and the defendant "walked about 30
yards over the hill." The victim remained "on top of the mountain."

About 10 to 15 minutes passed and defendant heard gunshot to his right rear and
behind him; he thought it was the victim shooting. "Maybe 20 minutes" later,
defendant heard a squirrel "barking off to the right." Defendant started walking
towards the sound of the squirrel, which defendant estimated came from 20 yards
away. Defendant continued walking towards the sound and a ravine, approaching
"a big old tree."

According to the defendant, "when I got to the edge of it, I just stopped because I
did not want to cross it, because it was thick through there." Continuing, defendant
said: "So, when I stopped, I heard something like a squirrel jumping out of the tree.
I turned, put my gun up, and I seen a flash of movement and I shot ... it was just a
flash of movement," black in color.

After defendant fired, the victim "hollered, `Alfred, damn it, you shot me, buddy.' "
Defendant stated that the vegetation was so thick at the scene that even if the
victim had been wearing an orange vest, he would not have seen him through the
foliage. Defendant, who was not wearing eyeglasses, admitted that "for a long
time" his distance vision had been impaired but he had not obtained glasses before
the incident.

At the time he fired, defendant had "no idea" the victim "was in that area." The
record does not reveal the distance between the defendant and the victim when he
was shot. According to defendant, "He was, I guess, across the ravine like, on the
other side sort of."

The victim immediately had difficulty breathing. After rendering aid to the victim,
the distraught defendant went down the mountain seeking medical assistance for
his friend. The defendant, along with rescue personnel, returned to the scene about
two hours later to find that the victim had died. He had sustained two penetrating
buckshot wounds, one entering the left rear rib cage and the other entering the
waist area at the left rear. The former wound caused the death.

Subsequently, the defendant was indicted, tried, and sentenced in accordance with
the jury's verdict to 12 months in jail. The trial court suspended the execution of all
but four months of the jail sentence, and imposed other conditions including a
prohibition against the defendant hunting with a firearm for five years. Execution
of the sentence was stayed pending appeal.

Settled principles pertinent to this case should be reviewed. Where a defendant

220*220 has been convicted by a jury whose verdict has been approved by the trial
judge, and where the defendant assails the sufficiency of the evidence, under
familiar rules it is the appellate court's duty to examine the evidence which tends to
support the verdict and to permit the verdict to stand unless plainly wrong. If there
is evidence to sustain the verdict, the reviewing court "should not overrule it and
substitute its own judgment, even if its opinion might differ from that of the jury."
Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961); Code
§ 8.01-680.

"Involuntary manslaughter is defined as the accidental killing of a person, contrary

to the intention of the parties, during the prosecution of an unlawful, but not
felonious, act, or during the improper performance of some lawful act. Beck v.
Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 9-10 (1975); Mundy v.
Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244 (1926). The `improper'
performance of the lawful act, to constitute involuntary manslaughter, must
amount to an unlawful commission of such lawful act, not merely a negligent
performance. The negligence must be criminal negligence. Kirk v. Commonwealth,
186 Va. 839, 847, 44 S.E.2d 409, 413 (1947). The accidental killing must be the
proximate result of a lawful act performed in a manner `so gross, wanton, and
culpable as to show a reckless disregard of human life.' King v. Commonwealth,
217 Va. 601, 607, 231 S.E.2d 312, 316 (1977). See Bell v. Commonwealth, 170 Va.
597, 611-12, 195 S.E. 675, 681 (1938)." Gooden v. Commonwealth, 226 Va. 565,
571, 311 S.E.2d 780, 784 (1984).
In this context, the term "gross, wanton, and culpable" describes conduct. The
word "gross" means "aggravated or increased negligence" while the word
"culpable" means "deserving of blame or censure." Bell, 170 Va. at 611, 195 S.E.
at 681. "`Gross negligence' is culpable or criminal when accompanied by acts of
commission or omission of a wanton or wilful nature, showing a reckless or
indifferent disregard of the rights of others, under circumstances reasonably
calculated to produce injury, or which make it not improbable that injury will be
occasioned, and the offender knows, or is charged with the knowledge of, the
probable result of his acts." Id. at 611-12, 195 S.E. at 681.

In this Court, the defendant contends that the Court of Appeals' affirmance of his
conviction improperly establishes a rule of strict liability in criminal cases arising
from hunting accidents. Conceding that he was careless and failed to exercise due
care, defendant maintains that he was not criminally negligent.

He points out that the victim "was wearing camouflage clothing, had blackened his
face, and was in a ravine in dense vegetation." He points to testimony that he "had
neither seen nor heard anyone else in the area in the nine or ten hours he had been
on the mountain." He argues that he "had ample reason to believe that no one was
or could be in the vicinity." He says, "Based upon his experience, the acuity of his
hearing, and his knowledge of the terrain that lay between where he had last seen
Clowers and his own position, he was certain that he could have heard Clowers
moving through the woods and since he had not heard him, he reasonably believed
that Clowers was still up on the mountain, high and to his right."

Defendant argues that the evidence is uncontradicted that he believed his weapon
was loaded with No. 4 birdshot which, he says, is not likely to inflict serious bodily
injury or death, that he thought he was shooting at a squirrel, and that he shot only
once. Thus, defendant contends, his conduct, as revealed by all the evidence,
"cannot be said to evince a callous and reckless disregard for human life." We do
not agree.

As we examine the evidence which tends to support the jury's verdict, we conclude
that the judgment of conviction is neither plainly wrong nor without evidence to
support it. Thus, we hold that the Court of Appeals did not err in affirming the
conviction.

221*221 Some of the very factors upon which the defendant relies to exonerate
himself of criminal negligence actually tend to support the conviction. The
defendant knew that his companion was nearby dressed in camouflage clothing
with a blackened face, so attired to conceal his presence. The defendant was fully
aware that the thickness of the foliage would render a person so attired still more
obscure. Being an experienced hunter, the defendant knew, or should have known,
one of the basic principles of hunting safety, as stated by the Commonwealth's
expert witness, "always be sure of your target and what is behind it before you
fire."

Although possessing this knowledge, the defendant, with impaired vision,

nonetheless fired at "a flash of movement" without identifying the target, having
mistakenly inserted a lethal load into his weapon. He seeks to excuse his conduct
by saying that he believed he was shooting at a squirrel. Yet, he never saw a
squirrel. Given the conditions existing in this thicket of foliage in this public
section of a national park, the defendant had a duty to identify his target before
shooting. A person who is criminally negligent in omitting to perform a duty is
guilty of involuntary manslaughter, although no malice is shown. Davis v.
Commonwealth, 230 Va. 201, 205, 335 S.E.2d 375, 378 (1985). This defendant
never even attempted identification.

Indeed, the defendant did not have to shoot at all. He could have waited until his
view of a target was unobstructed, especially since he knew that at least one other
human was in the immediate area.

Paraphrasing Bell, we believe defendant's conduct amounted to aggravated

negligence evidenced by acts of omission of a wanton nature, showing an
indifferent disregard of the rights of others, under circumstances which made it not
improbable that injury would occur, the defendant being charged with knowledge
of the probable result of his acts.

Accordingly, the judgment of the Court of Appeals will be

Affirmed.

STEPHENSON, J., dissents.

STEPHENSON, Justice, with whom CARRICO, Chief Justice, and HARRISON,

Retired Justice, join, dissenting.

I respectfully dissent.

A higher degree of negligence is required to establish criminal negligence than to

establish simple or gross negligence.[*] To establish criminal negligence, the
evidence must prove beyond a reasonable doubt that a defendant's conduct was so
gross and wanton as to show a reckless disregard of human life. Bell v.
Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938).

"[A]n actual or constructive consciousness of the danger involved" is essential to

prove wanton negligence. Wolfe v. Baube, 241 Va. 462, 465, 403 S.E.2d 338, 340
(1991). Thus, "[t]he act done must be intended or it must involve a reckless
disregard for the rights of another and will probably result in an injury." Infant C.
v. Boy Scouts of America, 239 Va. 572, 580-81, 391 S.E.2d 322, 327 (1990).

In the present case, the victim was dressed in camouflage attire, and his face was
blackened. The defendant had no reason to believe that the victim was nearby.
They had gone their separate ways approximately 30 minutes earlier. They had
seen no other persons all day. The defendant, an experienced hunter, thought he
heard a squirrel "bark," then "heard something like a squirrel jumping out of [a]
tree." He fired his shotgun upon seeing "a flash of movement" in a thicket. The
defendant thought that he was shooting at a squirrel. 222*222 He also believed that
his gun was loaded with "bird shot."

The defendant and the victim were not only good friends and hunting companions
but the victim soon would have been the defendant's son-in-law. It is inconceivable
that the defendant would consciously show a reckless disregard of the victim's life.

The only other involuntary manslaughter case arising out of a hunting accident that
we have decided is Gooden v. Commonwealth, 226 Va. 565, 311 S.E.2d 780
(1984). In Gooden, a majority held that the evidence was sufficient to sustain the
defendant's conviction. 226 Va. at 573, 311 S.E.2d at 785. Although I joined the
dissent, id. at 573-74, 311 S.E.2d at 785-86, I think the evidence in Gooden was
much stronger for conviction than is the evidence in the present case.

In Gooden, the victim wore a red hat and red bandannas pinned to the front and
back of his jacket, and he stood "on top of a knoll," in the "clear," upon a power
line easement. Id. at 567, 311 S.E.2d at 781. Further, the defendant fired his gun
even though "too many" hunters had been observed that afternoon along the
easement. Id., 311 S.E.2d at 781-82. Finally, the victim's companion saw no deer
in the vicinity either before or during the shooting. Id. at 573, 311 S.E.2d at 785.

Justice Cochran's dissent in Gooden contains the following statement which is

equally appropriate in the present case:
No one can deny that this was a tragic accident. But [the defendant] was engaged
in the lawful pursuit of a form of recreation sponsored by the Commonwealth. He
was not required to insure the safety of all other hunters within the range of his
[weapon]. The devotees of this sport are aware of a certain inherent risk of danger
where high-powered weapons may lawfully be used. To convict [the defendant] of
manslaughter, under the most favorable view of the evidence, is in effect to impose
a rule of strict liability. We have not approved such a rule in civil litigation and we
are not justified in applying it in a criminal prosecution. Although the evidence is
sufficient to establish ordinary negligence, I do not agree that it is sufficient to
establish criminal negligence.

Id. at 574, 311 S.E.2d at 786.

Accordingly, I would hold that the evidence, as a matter of law, is insufficient to

establish criminal negligence. Upon that issue, I do not think that reasonable minds
could differ. Therefore, I would reverse the trial court's judgment.

[*] Simple negligence is the failure to exercise that degree of care that a reasonably
prudent person would exercise under similar circumstances to avoid injuring
another. Gross negligence is "that degree of negligence which shows indifference
to others as constitutes an utter disregard of prudence amounting to a complete
neglect of the safety of [another]. It must be such a degree of negligence as would
shock fair minded men although something less than willful recklessness."
Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis
omitted).
 421 U.S. 684 (1975)

MULLANEY ET AL.
v.
Wilbur.
No. 74-13.

Supreme Court of United States.

Argued January 15, 1975.

Decided June 9, 1975.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT.

Vernon I. Arey, Assistant Attorney General of Maine, argued the cause for
petitioners. With him on the brief were Jon A. Lund, Attorney General, Richard S.
Cohen, Deputy Attorney General, and Charles K. Leadbetter, Assistant Attorney
General.

Peter J. Rubin, by appointment of the Court, 419 U. S. 1017, argued the cause and
filed a brief for respondent.

MR. JUSTICE POWELL delivered the opinion of the Court.

The State of Maine requires a defendant charged with murder to prove that he
acted "in the heat of passion on sudden provocation" in order to reduce the
homicide to 685*685 manslaughter. We must decide whether this rule comports
with the due process requirement, as defined in In re Winship, 397 U. S. 358, 364
(1970), that the prosecution prove beyond a reasonable doubt every fact necessary
to constitute the crime charged.

In June 1966 a jury found respondent Stillman E. Wilbur, Jr., guilty of murder. The
case against him rested on his own pretrial statement and on circumstantial
evidence showing that he fatally assaulted Claude Hebert in the latter's hotel room.
Respondent's statement, introduced by the prosecution, claimed that he had
attacked Hebert in a frenzy provoked by Hebert's homosexual advance. The
defense offered no evidence, but argued that the homicide was not unlawful since
respondent lacked criminal intent. Alternatively, Wilbur's counsel asserted that at
most the homicide was manslaughter rather than murder, since it occurred in the
heat of passion provoked by the homosexual assault.

The trial court instructed the jury that Maine law recognizes two kinds of
homicide, murder and manslaughter, and that these offenses are not subdivided
into different degrees. The common elements of both are that the homicide be
unlawful—i. e., neither justifiable nor excusable[1]—and that it be intentional.[2]
The prosecution is required to prove these elements by proof beyond a reasonable
doubt, and only if they are 686*686 so proved is the jury to consider the distinction
between murder and manslaughter.

In view of the evidence the trial court drew particular attention to the difference
between murder and manslaughter. After reading the statutory definitions of both
offenses,[3] the court charged that "malice aforethought is an essential and
indispensable element of the crime of murder," App. 40, without which the
homicide would be manslaughter. The jury was further instructed, however, that if
the prosecution established that the homicide was both intentional and unlawful,
malice aforethought was to be conclusively implied unless the defendant proved by
a fair preponderance of the evidence that he acted in the heat of passion on sudden
provocation.[4] The court emphasized that "malice aforethought 687*687 and heat
of passion on sudden provocation are two inconsistent things," id., at 62; thus, by
proving the latter the defendant would negate the former and reduce the homicide
from murder to manslaughter. The court then concluded its charge with elaborate
definitions of "heat of passion"[5] and "sudden provocation."[6]

After retiring to consider its verdict, the jury twice returned to request further
instruction. It first sought reinstruction on the doctrine of implied malice
aforethought, and later on the definition of "heat of passion." Shortly after the
second reinstruction, the jury found respondent guilty of murder.

Respondent appealed to the Maine Supreme Judicial Court, arguing that he had
been denied due process because he was required to negate the element of malice
aforethought by proving that he had acted in the heat of passion on sudden
provocation. He claimed that under Maine law malice aforethought was an
essential element of the crime of murder—indeed that it was the sole element
distinguishing murder from manslaughter. Respondent contended, therefore, that
this Court's decision in Winship requires the prosecution to prove the existence of
that element beyond a reasonable doubt.
688*688 The Maine Supreme Judicial Court rejected this contention,[7] holding
that in Maine murder and manslaughter are not distinct crimes but, rather, different
degrees of the single generic offense of felonious homicide. State v. Wilbur, 278 A.
2d 139 (1971). The court further stated that for more than a century it repeatedly
had held that the prosecution could rest on a presumption of implied malice
aforethought and require the defendant to prove that he had acted in the heat of
passion on sudden provocation in order to reduce murder to manslaughter. With
respect to Winship, which was decided after respondent's trial,[8] the court noted
that it did not anticipate the application of the Winship principle to a factor such as
the heat of passion on sudden provocation.

Respondent next successfully petitioned for a writ of habeas corpus in Federal

District Court. Wilbur v. Robbins, 349 F. Supp. 149 (Me. 1972). The District Court
ruled that under the Maine statutes murder and manslaughter are distinct offenses,
not different degrees of a single offense. The court further held that "[m]alice
aforethought is made the distinguishing element of the offense of murder, and it is
expressly excluded as an element of the offense of manslaughter." Id., at 153.
Thus, the District Court concluded, Winship requires the prosecution to prove
malice aforethought beyond a reasonable doubt; it cannot rely on a presumption of
implied malice, which requires the defendant to prove that he acted in the heat of
passion on sudden provocation.

689*689 The Court of Appeals for the First Circuit affirmed, subscribing in
general to the District Court's analysis and construction of Maine law. 473 F. 2d
943 (1973). Although recognizing that "within broad limits a state court must be
the one to interpret its own laws," the court nevertheless ruled that "a totally
unsupportable construction which leads to an invasion of constitutional due
process is a federal matter." Id., at 945. The Court of Appeals equated malice
aforethought with "premeditation," id., at 947, and concluded that Winship requires
the prosecution to prove this fact beyond a reasonable doubt.

Following this decision, the Maine Supreme Judicial Court decided the case of
State v. Lafferty, 309 A. 2d 647 (1973), in which it sharply disputed the First
Circuit's view that it was entitled to make an independent determination of Maine
law. The Maine court also reaffirmed its earlier opinion that murder and
manslaughter are punishment categories of the single offense of felonious
homicide. Accordingly, if the prosecution proves a felonious homicide the burden
shifts to the defendant to prove that he acted in the heat of passion on sudden
provocation in order to receive the lesser penalty prescribed for manslaughter.[9]
In view of the Lafferty decision we granted certiorari in this case and remanded to
the Court of Appeals for reconsideration. 414 U. S. 1139 (1974). On 690*690
remand, that court again applied Winship, this time to the Maine law as construed
by the Maine Supreme Judicial Court. 496 F. 2d 1303 (1974). Looking to the
"substance" of that law, the court found that the presence or absence of the heat of
passion on sudden provocation results in significant differences in the penalties and
stigma attaching to conviction. For these reasons the Court of Appeals held that the
principles enunciated in Winship control, and that to establish murder the
prosecution must prove beyond a reasonable doubt that the defendant did not act in
the heat of passion on sudden provocation.

Because of the importance of the issues presented, we again granted certiorari. 419
U. S. 823 (1974). We now affirm.

II

We reject at the outset respondent's position that we follow the analysis of the
District Court and the initial opinion of the First Circuit, both of which held that
murder and manslaughter are distinct crimes in Maine, and that malice
aforethought is a fact essential to the former and absent in the latter. Respondent
argues that the Maine Supreme Judicial Court's construction of state law should not
be deemed binding on this Court since it marks a radical departure from prior
law,[10] leads to internally 691*691 inconsistent results, and is a transparent effort
to circumvent Winship. This Court, however, repeatedly has held that state courts
are the ultimate expositors of state law, see, e. g., Murdock v. City of Memphis, 20
Wall. 590 (1875); Winters v. New York, 333 U. S. 507 (1948), and that we are
bound by their constructions except in extreme circumstances not present here.[11]
Accordingly, we accept as binding the Maine Supreme Judicial Court's
construction of state homicide law.

III

The Maine law of homicide, as it bears on this case, can be stated succinctly:
Absent justification or excuse, all intentional or criminally reckless killings are
felonious homicides. Felonious homicide is punished as murder— i. e., by life
imprisonment—unless the defendant proves 692*692 by a fair preponderance of
the evidence that it was committed in the heat of passion on sudden provocation, in
which case it is punished as manslaughter—i. e., by a fine not to exceed $1,000 or
by imprisonment not to exceed 20 years. The issue is whether the Maine rule
requiring the defendant to prove that he acted in the heat of passion on sudden
provocation accords with due process.

Our analysis may be illuminated if this issue is placed in historical context.[12] At

early common law only those homicides committed in the enforcement of justice
were considered justifiable; all others were deemed unlawful and were punished by
death. Gradually, however, the severity of the common-law punishment for
homicide abated. Between the 13th and 16th centuries the class of justifiable
homicides expanded to include, for example, accidental homicides and those
committed in self-defense. Concurrently, the widespread use of capital punishment
was ameliorated further by extension of the ecclesiastic jurisdiction. Almost any
person able to read was eligible for "benefit of clergy," a procedural device that
effected a transfer from the secular to the ecclesiastic jurisdiction. And under
ecclesiastic law a person who committed an unlawful homicide was not executed;
instead he received a one-year sentence, had his thumb branded and was required
to forfeit his goods. At the turn of the 16th century, English rulers, concerned with
the accretion of ecclesiastic jurisdiction at the expense of the secular, enacted a
series of statutes eliminating the benefit of 693*693 clergy in all cases of "murder
of malice prepensed."[13] Unlawful homicides that were committed without such
malice were designated "manslaughter," and their perpetrators remained eligible
for the benefit of clergy.

Even after ecclesiastic jurisdiction was eliminated for all secular offenses the
distinction between murder and manslaughter persisted. It was said that
"manslaughter, when voluntary,[14] arises from the sudden heat of the passions,
murder from the wickedness of the heart." 4 W. Blackstone, Commentaries *190.
Malice aforethought was designated as the element that distinguished the two
crimes, but it was recognized that such malice could be implied by law as well as
proved by evidence. Absent proof that an unlawful homicide resulted from "sudden
and sufficiently violent provocation," the homicide was "presumed to be
malicious."[15] Id., at *201. In view of this presumption, the early English
authorities, relying on the case of The King v. Oneby, 92 Eng. Rep. 465 (K. B.
1727), held that once the prosecution proved that the accused had committed the
homicide, it was "incumbent upon the prisoner to make out, to the satisfaction of
the court and jury" "all . . . circumstances of justification, excuse, or alleviation." 4
W. Blackstone, Commentaries 694*694 *201. See M. Foster, Crown Law 255
(1762). Thus, at common law the burden of proving heat of passion on sudden
provocation appears to have rested on the defendant.[16]
In this country the concept of malice aforethought took on two distinct meanings:
in some jurisdictions it came to signify a substantive element of intent, requiring
the prosecution to prove that the defendant intended to kill or to inflict great bodily
harm; in other jurisdictions it remained a policy presumption, indicating only that
absent proof to the contrary a homicide was presumed not to have occurred in the
heat of passion. See State v. Rollins, 295 A. 2d 914, 918-919 (Me. 1972). See
generally Perkins, A Re-Examination of Malice Aforethought, 43 Yale L. J. 537,
548-549, 566-568 (1934).[17] In a landmark case, Commonwealth v. York, 50 Mass.
93 (1845), Chief Justice Shaw of the Massachusetts Supreme Judicial Court held
that the defendant was required to negate malice aforethought by proving by a
preponderance 695*695 of the evidence that he acted in the heat of passion.[18]
Initially, York was adopted in Maine[19] as well as in several other jurisdictions.[20]
In 1895, however, in 696*696 the context of deciding a question of federal
criminal procedure, this Court explicitly considered and unanimously rejected the
general approach articulated in York. Davis v. United States, 160 U. S. 469.[21]
And, in the past half century, the large majority of States have abandoned York and
now require the prosecution to prove the absence of the heat of passion on sudden
provocation beyond a reasonable doubt. See W. LaFave & A. Scott, Handbook on
Criminal Law 539-540 (1972).[22]

This historical review establishes two important points. First, the fact at issue
here—the presence or absence of the heat of passion on sudden provocation—has
been, almost from the inception of the common law of homicide, the single most
important factor in determining the degree of culpability attaching to an unlawful
homicide. And, second, the clear trend has been toward requiring the prosecution
to bear the ultimate burden of proving this fact. See generally Fletcher, supra, n.
16; H. Packer, The Limits of the Criminal Sanction 137-139 (1968).

Petitioners, the warden of the Maine Prison and the State of Maine, argue that
despite these considerations 697*697 Winship should not be extended to the
present case. They note that as a formal matter the absence of the heat of passion
on sudden provocation is not a "fact necessary to constitute the crime" of felonious
homicide in Maine. In re Winship, 397 U. S., at 364 (emphasis supplied). This
distinction is relevant, according to petitioners, because in Winship the facts at
issue were essential to establish criminality in the first instance, whereas the fact in
question here does not come into play until the jury already has determined that the
defendant is guilty and may be punished at least for manslaughter. In this situation,
petitioners maintain, the defendant's critical interests in liberty and reputation are
no longer of paramount concern since, irrespective of the presence or absence of
the heat of passion on sudden provocation, he is likely to lose his liberty and
certain to be stigmatized.[23] In short, petitioners would limit Winship to those facts
which, if not proved, would wholly exonerate the defendant.

This analysis fails to recognize that the criminal law of Maine, like that of other
jurisdictions, is concerned not only with guilt or innocence in the abstract but also
698*698 with the degree of criminal culpability. Maine has chosen to distinguish
those who kill in the heat of passion from those who kill in the absence of this
factor. Because the former are less "blameworth[y]," State v. Lafferty, 309 A. 2d,
at 671, 673 (concurring opinion), they are subject to substantially less severe
penalties. By drawing this distinction, while refusing to require the prosecution to
establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates
the interests found critical in Winship.

The safeguards of due process are not rendered unavailing simply because a
determination may already have been reached that would stigmatize the defendant
and that might lead to a significant impairment of personal liberty. The fact
remains that the consequences resulting from a verdict of murder, as compared
with a verdict of manslaughter, differ significantly. Indeed, when viewed in terms
of the potential difference in restrictions of personal liberty attendant to each
conviction, the distinction established by Maine between murder and manslaughter
may be of greater importance than the difference between guilt or innocence for
many lesser crimes.

Moreover, if Winship were limited to those facts that constitute a crime as defined
by state law, a State could undermine many of the interests that decision sought to
protect without effecting any substantive change in its law. It would only be
necessary to redefine the elements that constitute different crimes, characterizing
them as factors that bear solely on the extent of punishment. An extreme example
of this approach can be fashioned from the law challenged in this case. Maine
divides the single generic offense of felonious homicide into three distinct
punishment categories—murder, voluntary manslaughter, and involuntary
manslaughter. Only the first two of these categories require that the homicidal act
either be 699*699 intentional or the result of criminally reckless conduct. See State
v. Lafferty, supra, at 670-672 (concurring opinion). But under Maine law these
facts of intent are not general elements of the crime of felonious homicide. See
Brief for Petitioners 10 n. 5. Instead, they bear only on the appropriate punishment
category. Thus, if petitioners' argument were accepted, Maine could impose a life
sentence for any felonious homicide—even one that traditionally might be
considered involuntary manslaughter —unless the defendant was able to prove that
his act was neither intentional nor criminally reckless.[24]

Winship is concerned with substance rather than this kind of formalism.[25] The
rationale of that case requires an analysis that looks to the "operation and effect of
the law as applied and enforced by the State," St. Louis S. W. R. Co. v. Arkansas,
235 U. S. 350, 362 (1914), and to the interests of both the State and the defendant
as affected by the allocation of the burden of proof.

In Winship the Court emphasized the societal interests in the reliability of jury
verdicts:[26]

"The requirement of proof beyond a reasonable doubt has [a] vital role in our
criminal procedure for cogent reasons. The accused during a criminal 700*700
prosecution has at stake interests of immense importance, both because of the
possibility that he may lose his liberty upon conviction and because of the certainty
that he would be stigmatized by the conviction. . . .
"Moreover, use of the reasonable-doubt standard is indispensable to command the
respect and confidence of the community in applications of the criminal law. It is
critical that the moral force of the criminal law not be diluted by a standard of
proof that leaves people in doubt whether innocent men are being condemned."
397 U. S., at 363, 364.

These interests are implicated to a greater degree in this case than they were in
Winship itself. Petitioner there faced an 18-month sentence, with a maximum
possible extension of an additional four and one-half years, id., at 360, whereas
respondent here faces a differential in sentencing ranging from a nominal fine to a
mandatory life sentence. Both the stigma to the defendant and the community's
confidence in the administration of the criminal law are also of greater
consequence in this case,[27] since the adjudication of delinquency involved in
Winship was "benevolent" in intention, seeking to provide "a generously conceived
program of compassionate treatment." Id., at 376 (BURGER, C. J., dissenting).

Not only are the interests underlying Winship implicated to a greater degree in this
case, but in one respect the protection afforded those interests is less here. In
Winship the ultimate burden of persuasion remained with the prosecution, although
the standard had been reduced to proof by a fair preponderance of the evidence.
701*701 In this case, by contrast, the State has affirmatively shifted the burden of
proof to the defendant. The result, in a case such as this one where the defendant is
required to prove the critical fact in dispute, is to increase further the likelihood of
an erroneous murder conviction. Such a result directly contravenes the principle
articulated in Speiser v. Randall, 357 U. S. 513, 525-526 (1958):

"[W]here one party has at stake an interest of transcending value—as a criminal

defendant his liberty —th[e] margin of error is reduced as to him by the process of
placing on the [prosecution] the burden . . . of persuading the factfinder at the
conclusion of the trial . . . ."

See also In re Winship, 397 U. S., at 370-372 (Harlan, J., concurring).

It has been suggested, State v. Wilbur, 278 A. 2d, at 145, that because of the
difficulties in negating an argument that the homicide was committed in the heat of
passion the burden of proving this fact should rest on the defendant. No doubt this
is often a heavy burden for the prosecution to satisfy. The same may be said of the
requirement of proof beyond a reasonable doubt of many controverted facts in a
criminal trial. But this is the traditional burden which our system of criminal
justice deems essential.

Indeed, the Maine Supreme Judicial Court itself acknowledged that most States
require the prosecution to prove the absence of passion beyond a reasonable doubt.
Id., at 146.[28] Moreover, the difficulty of meeting such an 702*702 exacting
burden is mitigated in Maine where the fact at issue is largely an "objective, rather
than a subjective, behavioral criterion." State v. Rollins, 295 A. 2d, at 920. In this
respect, proving that the defendant did not act in the heat of passion on sudden
provocation is similar to proving any other element of intent; it may be established
by adducing evidence of the factual circumstances surrounding the commission of
the homicide. And although intent is typically considered a fact peculiarly within
the knowledge of the defendant, this does not, as the Court has long recognized,
justify shifting the burden to him. See Tot v. United States, 319 U. S. 463, 469
(1943); Leary v. United States, 395 U. S. 6, 45 (1969).

Nor is the requirement of proving a negative unique in our system of criminal

jurisprudence.[29] Maine itself requires the prosecution to prove the absence of self-
defense beyond a reasonable doubt. See State v. Millett, 273 A. 2d 504 (1971).[30]
Satisfying this burden imposes an obligation that, in all practical effect, is identical
to the burden involved in negating the heat of passion on sudden provocation.
Thus, we discern no unique hardship on the prosecution that would justify
requiring the defendant to carry the burden of proving a fact so critical to criminal
culpability.[31]
703*703 IV

Maine law requires a defendant to establish by a preponderance of the evidence

that he acted in the heat of passion on sudden provocation in order to reduce
murder to manslaughter. Under this burden of proof a defendant can be given a life
sentence when the evidence indicates that it is as likely as not that he deserves a
significantly lesser sentence. This is an intolerable result in a society where, to
paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of
manslaughter as a murderer than to sentence a murderer for the lesser 704*704
crime of manslaughter. In re Winship, 397 U. S., at 372 (concurring opinion). We
therefore hold that the Due Process Clause requires the prosecution to prove
beyond a reasonable doubt the absence of the heat of passion on sudden
provocation when the issue is properly presented in a homicide case. Accordingly,
the judgment below is

Affirmed.

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,

concurring.

While I join in the Court's opinion, the somewhat peculiar posture of the case as it
comes to us leads me to add these observations.

Respondent made no objection to the trial court's instruction respecting the burden
of proof on the issue of whether he had acted in the heat of passion on sudden
provocation. Nonetheless, on his appeal to the Supreme Judicial Court of Maine,
that court considered his objection to the charge on its merits and held the charge
to be a correct statement of Maine law. It neither made any point of respondent's
failure to object to the instruction in the trial court,[*] nor did it give any
consideration to the doctrine long approved by this Court that the 705*705
instructions to the jury are not to be judged in artificial isolation, but must be
viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104,
107 (1926); Cupp v. Naughten, 414 U. S. 141, 147 (1973). It likewise expressed no
view on whether, even though the instruction might have amounted to
constitutional error, that error could have been harmless. Chapman v. California,
386 U. S. 18 (1967). Its reason for not treating the possibility that the error was
harmless may have been because, as this Court's opinion points out, ante, at 687,
the jury came back in the midst of its deliberations and requested further
instructions on the doctrine of implied malice aforethought and the definition of
"heat of passion."
The case which has now reached us through the route of federal habeas corpus,
therefore, is a highly unusual one which does present the abstract question of law
isolated by the Supreme Judicial Court of Maine and now decided here.

I agree with the Court that In re Winship, 397 U. S. 358 (1970), does require that
the prosecution prove beyond a reasonable doubt every element which constitutes
the crime charged against a defendant. I see no inconsistency between that holding
and the holding of Leland v. Oregon, 343 U. S. 790 (1952). In the latter case this
Court held that there was no constitutional requirement that the State shoulder the
burden of proving the sanity of the defendant.

The Court noted in Leland that the issue of insanity as a defense to a criminal
charge was considered by the jury only after it had found that all elements of the
offense, including the mens rea, if any, required by state law, had been proved
beyond a reasonable doubt. Id., at 792, 795. Although as the state court's
instructions in Leland recognized, id., at 794-795, evidence relevant 706*706 to
insanity as defined by state law may also be relevant to whether the required mens
rea was present, the existence or nonexistence of legal insanity bears no necessary
relationship to the existence or nonexistence of the required mental elements of the
crime. For this reason, Oregon's placement of the burden of proof of insanity on
Leland, unlike Maine's redefinition of homicide in the instant case, did not effect
an unconstitutional shift in the State's traditional burden of proof beyond a
reasonable doubt of all necessary elements of the offense. Id., at 795. Both the
Court's opinion and the concurring opinion of Mr. Justice Harlan in In re Winship,
supra, stress the importance of proof beyond a reasonable doubt in a criminal case
as "bottomed on a fundamental value determination of our society that it is far
worse to convict an innocent man than to let a guilty man go free." 397 U. S., at
372 (Harlan, J., concurring). Having once met that rigorous burden of proof that,
for example, in a case such as this, the defendant not only killed a fellow human
being, but did it with malice aforethought, the State could quite consistently with
such a constitutional principle conclude that a defendant who sought to establish
the defense of insanity, and thereby escape any punishment whatever for a heinous
crime, should bear the laboring oar on such an issue.

[1] As examples of justifiable or excusable homicides, the court mentioned a

soldier in battle, a policeman in certain circumstances, and an individual acting in
self-defense. App. 38.

[2] The court elaborated that an intentional homicide required the jury to find
"either that the defendant intended death, or that he intended an act which was
calculated and should have been understood by [a] person of reason to be one
likely to do great bodily harm and that death resulted." Id., at 37.

[3] The Maine murder statute, Me. Rev. Stat. Ann., Tit. 17, § 2651 (1964),
provides:

"Whoever unlawfully kills a human being with malice aforethought, either express
or implied, is guilty of murder and shall be punished by imprisonment for life."

The manslaughter statute, Me. Rev. Stat. Ann., Tit. 17, § 2551 (1964), in relevant
part provides:

"Whoever unlawfully kills a human being in the heat of passion, on sudden

provocation, without express or implied malice afore-thought. . . shall be punished
by a fine of not more than $1,000 or by imprisonment for not more than 20 years . .
. ."

[4] The trial court also explained the concept of express malice aforethought,
which required a "premeditated design to kill" thereby manifesting a "general
malignancy and disregard for human life which proceeds from a heart void of
social duty and fatally bent on mischief." App. 40-42. Despite this instruction, the
court repeatedly made clear that express malice need not be established since
malice would be implied unless the defendant proved that he acted in the heat of
passion. Hence, the instruction on express malice appears to have been wholly
unnecessary, as the Maine Supreme Judicial Court subsequently held. State v.
Lafferty, 309 A. 2d 647 (1973). See also n. 10, infra.

[5] "Heat of passion . . . means that at the time of the act the reason is disturbed or
obscured by passion to an extent which might [make] ordinary men of fair, average
disposition liable to act irrationally without due deliberation or reflection, and from
passion rather than judgment." App. 47.

[6] "[H]eat of passion will not avail unless upon sudden provocation. Sudden
means happening without previous notice or with very brief notice; coming
unexpectedly, precipitated, or unlooked for. . . . It is not every provocation, it is not
every rage of passion that will reduce a killing from murder to manslaughter. The
provocation must be of such a character and so close upon the act of killing, that
for a moment a person could be—that for a moment the defendant could be
considered as not being the master of his own understanding." Id., at 47-48.
[7] Respondent did not object to the relevant instructions at trial. The Maine
Supreme Judicial Court nevertheless found the issue cognizable on appeal because
it had "constitutional implications." State v. Wilbur, 278 A. 2d 139, 144 (1971).

[8] The Maine court concluded that Winship should not be applied retroactively.
We subsequently decided, however, that Winship should be given complete
retroactive effect. Ivan v. City of New York, 407 U. S. 203 (1972).

[9] The Maine court emphasized that, contrary to the view of the Court of Appeals
for the First Circuit, malice aforethought connotes no substantive fact (such as
premeditation), but rather is solely a policy presumption. Under its interpretation of
state law, the Maine court would require proof of the same element of intent for
both murder and manslaughter, the distinction being that in the latter case the
intent results from a sudden provocation which leads the defendant to act in the
heat of passion. 309 A. 2d, at 670-671 (concurring opinion).

[10] Respondent relies on Bouie v. City of Columbia, 378 U. S. 347 (1964). In that
case a State Supreme Court's reinterpretation of a criminal statute was so novel as
to be "unforeseeable" and therefore deprived the defendants of fair notice of the
possible criminality of their acts at the time they were committed. Thus, the
retroactive application of the new interpretation was itself a denial of due process.
See also Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673 (1930). In this case, as
respondent apparently concedes, Brief for Respondent 12, there was no
comparable prejudice to respondent since in Maine the burden of proving heat of
passion has rested on the defendant for more than a century. See, e. g., State v.
Knight, 43 Me. 11, 137-138 (1857). To be sure, the trial court instructed the jury
on the concept of express malice aforethought, see n. 4, supra, a concept that was
subsequently stripped of its vitality by the Maine Supreme Judicial Court. But the
trial court explicitly stated that express malice aforethought need not be shown
since malice would be implied from the unlawful homicide. In considering these
instructions as a whole, see Cupp v. Naughten, 414 U. S. 141, 147 (1973), we
discern no prejudice to respondent.

[11] On rare occasions the Court has re-examined a state-court interpretation of

state law when it appears to be an "obvious subterfuge to evade consideration of a
federal issue." Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 129 (1945).
See Ward v. Love County, 253 U. S. 17 (1920); Terre Haute & I. R. Co. v. Indiana
ex rel. Ketcham, 194 U. S. 579 (1904). In this case the Maine court's interpretation
of state law, even assuming it to be novel, does not frustrate consideration of the
due process issue, as the Maine court itself recognized, State v. Wilbur, 278 A. 2d,
at 146, and as the remainder of this opinion makes clear. See generally Comment,
Due Process and Supremacy as Foundations for the Adequacy Rule: The Remains
of Federalism After Wilbur v. Mullaney, 26 Me. L. Rev. 37 (1974).

[12] Much of this history was set out in the Court's opinion in McGautha v.
California, 402 U. S. 183, 197-198 (1971). See also 3 J. Stephen, A History of the
Criminal Law of England 1-107 (1883); 2 F. Pollock & F. Maitland, The History
of English Law 478-487 (2d ed. 1909).

[13] 12 Hen. 7, c. 7 (1496); 4 Hen. 8, c. 2 (1512); 23 Hen. 8, c. 1, §§ 3, 4 (1531); 1

Edw. 6, c. 12, § 10 (1547).

[14] Blackstone also referred to a class of homicides called involuntary

manslaughter. Such homicides were committed by accident in the course of
perpetrating another unlawful, although not felonious, act. 4 W. Blackstone,
Commentaries *192-193. This offense, with some modification and elaboration,
generally has been recognized in this country. See R. Perkins, Criminal Law 70-77
(2d ed. 1969).

[15] Thus it appears that the concept of express malice aforethought was
surplusage since if the homicide resulted from sudden provocation it was
manslaughter; otherwise it was murder. In this respect, Maine law appears to
follow the old common law. See generally Comment, The Constitutionality of the
Common Law Presumption of Malice in Maine, 54 B. U. L. Rev. 973, 986-999
(1974).

[16] Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-

Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 904-907 (1968),
disputes this conclusion, arguing that the reliance on Oneby's case was misplaced.
In Oneby the jury returned a special verdict making specific findings of fact. No
finding was made with respect to provocation. Absent such a finding the court held
that the homicide was murder. Fletcher maintains that in the context of a special
verdict it is impossible to determine whether the defendant failed to satisfy his
burden of going forward with "some evidence" or the ultimate burden of
persuading the jury. See also n. 20, infra.

[17] Several jurisdictions also divided murder into different degrees, typically
limiting capital punishment to first-degree murder and requiring the prosecution to
prove premeditation and deliberation in order to establish that offense. See Keedy,
History of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L. Rev.
759 (1949); Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Col.
L. Rev. 701, 703-707 (1937).

[18] Justice Wilde dissented, arguing that the Commonwealth was required to
prove all facts necessary to establish murder, including malice aforethought, which
in turn required it to negate the suggestion that the killing occurred in the heat of
passion on sudden provocation. He also rejected the doctrine of implied malice on
the ground that "[n]o malice can be inferred from the mere act of killing. Such a
presumption, therefore, is arbitrary and unfounded." 50 Mass., at 128.

[19] State v. Knight, 43 Me. 11 (1857).

[20] See cases cited in Fletcher, supra, n. 16, at 903 nn. 77-79. Some confusion
developed, however, as to precisely what York required. Contemporary writers
divide the general notion of "burden of proof" into a burden of producing some
probative evidence on a particular issue and a burden of persuading the factfinder
with respect to that issue by a standard such as proof beyond a reasonable doubt or
by a fair preponderance of the evidence. See, e. g., E. Cleary, McCormick on
Evidence § 336 (2d ed. 1972). This distinction apparently was not well recognized
at the time York was decided, and thus in some jurisdictions it was unclear whether
the defendant was required to bear the production burden or the persuasion burden
on the issue of heat of passion. See, e. g., cases discussed in People v. Morrin, 31
Mich. App. 301, 315-323, 187 N. W. 2d 434, 441-446 (1971). Indeed, 10 years
after the decision in York, Chief Justice Shaw explained that "the doctrine of York's
case was that where the killing is proved to have been committed by the defendant,
and nothing further is shown, the presumption of law is that it was malicious and
an act of murder." Commonwealth v. Hawkins, 69 Mass. 463, 465 (1855)
(emphasis in original). He further noted that this presumption did not govern when
there was evidence indicating that the defendant might have acted in the heat of
passion. In that situation, "if the jury, upon all the circumstances, are satisfied,
beyond a reasonable doubt, that [the homicide] was done with malice, they will
return a verdict of murder; otherwise, they will find the defendant guilty of
manslaughter." Id., at 466. Thus, even the author of York quickly limited its scope
to require only that the accused produce some evidence on the issue of passion;
that is, that he satisfy the production but not the persuasion burden. Other
jurisdictions blurred the distinction between these two burdens by requiring the
defendant to prove "to the satisfaction of the jury" that he acted in the heat of
passion. See, e. g., State v. Willis, 63 N. C. 26 (1868).
[21] In Leland v. Oregon, 343 U. S. 790 (1952), the Court declined to apply the
specific holding of Davis—that the prosecution must prove sanity beyond a
reasonable doubt—to the States.

[22] See also State v. Cuevas, 488 P. 2d 322 (Haw. 1971) (Winship requires the
prosecution to prove malice aforethought beyond a reasonable doubt). England
also now requires the prosecution to negate heat of passion on sudden provocation
by proof beyond a reasonable doubt. Mancini v. Director of Public Prosecutions,
[1942] A. C. 1; see Woolmington v. Director of Public Prosecutions, [1935] A. C.
462.

[23] Relying on Williams v. New York, 337 U. S. 241 (1949), and McGautha v.
California, 402 U. S., at 196, petitioners seek to buttress this contention by arguing
that since the presence or absence of the heat of passion on sudden provocation
affects only the extent of punishment it should be considered a matter within the
traditional discretion of the sentencing body and therefore not subject to rigorous
due process demands. But cf. United States v. Tucker, 404 U. S. 443 (1972). There
is no incompatibility between our decision today and the traditional discretion
afforded sentencing bodies. Under Maine law the jury is given no discretion as to
the sentence to be imposed on one found guilty of felonious homicide. If the
defendant is found to be a murderer, a mandatory life sentence results. On the other
hand, if the jury finds him guilty only of manslaughter it remains for the trial court
in the exercise of its discretion to impose a sentence within the statutorily defined
limits.

[24] Many States impose different statutory sentences on different degrees of

assault. If Winship were limited to a State's definition of the elements of a crime,
these States could define all assaults as a single offense and then require the
defendant to disprove the elements of aggravation—e. g., intent to kill or intent to
rob. But see State v. Ferris, 249 A. 2d 523 (Me. 1969) (prosecution must prove
elements of aggravation in criminal assault case by proof beyond a reasonable
doubt).

[25] Indeed, in Winship itself the Court invalidated the burden of proof in a
juvenile delinquency proceeding even though delinquency was not formally
considered a "crime" under state law. 397 U. S., at 365-366; id., at 373-374
(Harlan, J., concurring).

[26] See also Lego v. Twomey, 404 U. S. 477, 486 (1972).

[27] See Duncan v. Louisiana, 391 U. S. 145, 160 (1968):

"The penalty authorized by the law of the locality may be taken `as a gauge of its
social and ethical judgments.' " Quoting from District of Columbia v. Clawans,
300 U. S. 617, 628 (1937).

[28] See supra, at 696. See also 38 Mo. L. Rev. 105 (1973). Many States do
require the defendant to show that there is "some evidence" indicating that he acted
in the heat of passion before requiring the prosecution to negate this element by
proving the absence of passion beyond a reasonable doubt. See W. LaFave & A.
Scott, Criminal Law 539 (1972); Perkins, supra, n. 14, at 50-51. See also nn. 16 &
20, supra. Nothing in this opinion is intended to affect that requirement. See also n.
30, infra.

[29] See generally F. Wharton, A Treatise on the Law of Evidence § 320 (9th ed.
1884); Model Penal Code § 1.13, Comment, p. 110 (Tent. Draft No. 4, 1955);
Fletcher, supra, n. 16, at 883, and n. 14.

[30] In Millet the Maine Supreme Judicial Court adopted the "majority rule"
regarding proof of self-defense. The burden of producing "some evidence" on this
issue rests with the defendant, but the ultimate burden of persuasion by proof
beyond a reasonable doubt remains on the prosecution.

[31] This conclusion is supported by consideration of a related line of cases.

Generally in a criminal case the prosecution bears both the production burden and
the persuasion burden. In some instances, however, it is aided by a presumption,
see Davis v. United States, 160 U. S. 469 (1895) (presumption of sanity), or a
permissible inference, see United States v. Gainey, 380 U. S. 63 (1965) (inference
of knowledge from presence at an illegal still). These procedural devices require
(in the case of a presumption) or permit (in the case of an inference) the trier of
fact to conclude that the prosecution has met its burden of proof with respect to the
presumed or inferred fact by having satisfactorily established other facts. Thus, in
effect they require the defendant to present some evidence contesting the otherwise
presumed or inferred fact. See Barnes v. United States, 412 U. S. 837, 846 n. 11
(1973). Since they shift the production burden to the defendant, these devices must
satisfy certain due process requirements. See e. g., Barnes v. United States, supra;
Turner v. United States, 396 U. S. 398 (1970).

In each of these cases, however, the ultimate burden of persuasion by proof beyond
a reasonable doubt remained on the prosecution. See, e. g., Barnes v. United
States, supra, at 845 n. 9; Davis v. United States, supra, at 484-488. Shifting the
burden of persuasion to the defendant obviously places an even greater strain upon
him since he no longer need only present some evidence with respect to the fact at
issue; he must affirmatively establish that fact. Accordingly, the Due Process
Clause demands more exacting standards before the State may require a defendant
to bear this ultimate burden of persuasion. See generally Ashford & Risinger,
Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical
Overview, 79 Yale L. J. 165 (1969).

[*] While Fay v. Noia, 372 U. S. 391 (1963), holds that a failure to appeal through
the state-court system from a constitutionally infirm judgment of conviction does
not bar subsequent relief in federal habeas corpus, failure to object to a proposed
instruction should stand on a different footing. It is one thing to fail to utilize the
appeal process to cure a defect which already inheres in a judgment of conviction,
but it is quite another to forgo making an objection or exception which might
prevent the error from ever occurring. Cf. Davis v. United States, 411 U. S. 233
(1973). Here, however, the Maine Supreme Judicial Court nevertheless
affirmatively ruled that the issue was cognizable despite respondent's failure to
object at trial. See majority opinion, ante, at 688 n. 7. And the State did not contest
the propriety of consideration of the issue in federal habeas.
 82 Cal.Rptr.2d 625 (1999)
971 P.2d 1001
20 Cal.4th 47
The PEOPLE, Plaintiff and Respondent,
v.
Steven B. LEE, Defendant and Appellant.
No. S060352.

Supreme Court of California.

March 4, 1999.
Rehearing Denied April 14, 1999.

626*626 Victor J. Morse, under appointment by the Supreme Court, San

Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant

Attorney General, Ronald A. Bass, Assistant Attorney General, Doug MacMaster,
Michael E. Banister and Catherine A. Rivlin, Deputy Attorneys General, for
Plaintiff and Respondent.

BAXTER, J.

The sole question presented in this case is whether the Court of Appeal erred in
concluding that even though the evidence was sufficient to support a conviction of
second degree murder (Pen.Code, § 187[1], defendant's conviction of voluntary
manslaughter (§ 192, subd. (a)) must be reversed because evidence of provocation
was insufficient.

The Court of Appeal held that defendant's request for a voluntary manslaughter
instruction was not invited error which precluded his appellate claim. It also held
that the evidence was not sufficient to establish that defendant acted under
provocation by the victim and thus did not support a conviction of voluntary
manslaughter. Finally the court held that, because the evidence warranted and the
jury might have convicted defendant of involuntary manslaughter had an
instruction on misdemeanor manslaughter (§ 192, subd. (b)) been given, the error
in permitting the jury to return a voluntary manslaughter verdict was not favorable
to defendant within the reasoning of People v. Powell (1949) 34 Cal.2d 196, 208
P.2d 974 (Powell). The Court of Appeal therefore reversed the conviction with
directions that a conviction of involuntary manslaughter be entered.

We conclude that the Court of Appeal erred in doing so. Both sides agree that the
evidence was sufficient to support conviction of second degree murder. The verdict
establishes that, in convicting defendant of voluntary manslaughter under the
instructions it was given, the jury necessarily found all of the facts necessary to
establish second degree murder even if the jury believed that malice was negated
by heat of passion or 627*627 intoxication. Although the trial court erred in failing
to instruct on the misdemeanor manslaughter form of involuntary manslaughter,
that error could not have prejudiced defendant because the involuntary
manslaughter instructions that were given permitted conviction of that offense if
the jury found only an unlawful, unintentional killing without malice.

In these circumstances Powell does apply. If there was error in instructing on

voluntary manslaughter, that error was favorable to defendant, as was any error in
returning a verdict of voluntary manslaughter. Defendant may not complain on
appeal about errors favorable to him.[2]

We shall, therefore, reverse the judgment of the Court of Appeal.

I
TRIAL AND CONVICTION

The tragic events which led to this conviction occurred after defendant and the
victim, his wife Mee Nor, hosted a Chinese New Year's party in their home on
February 14, 1991.[3] Their two young daughters, Mary and Susan, two friends of
daughter Mary, and Mary's teacher, Manuel Bella, were present. Defendant did not
appear to harbor any anger toward his wife, but he drank heavily from a bottle of
cognac he had purchased that day. The 750-milliliter bottle had not been opened
until dinnertime, but defendant had consumed half of the bottle before Bella
arrived and the group sat down for dinner. Bella arrived at the Lee home at 6:30
p.m. At that time defendant appeared to be his usual self. Before they sat down to
eat defendant had at least two glasses of cognac. As the food which defendant had
prepared was ready, the group sat down for dinner within five to ten minutes of the
time Bella arrived. The mood was happy and Bella observed no hostility between
defendant and his wife.

Bella had only one small drink. Defendant drank throughout the evening. He
became emotional and told Bella he had lost his job. He appeared depressed. As
the evening progressed defendant became less coherent, his eyelids drooped, and
he began to nod. He tried but was unable to stand and escort Bella to the door
when Bella left shortly before the shooting. The cognac bottle was empty or almost
empty at the end of dinner.

After Bella left, 12-year-old Mary saw her parents arguing and pushing each other.
The couple argued almost daily, but on this occasion their voices were low and soft
and Mary could not hear what they argued about. Defendant appeared different to
Mary, as if he were "possessed by a spirit." He had a blank stare and was
staggering.

Defendant went to the bedroom, staggering and falling against the wall, and
returned two or three minutes later with his handgun, a .357 magnum Smith &
Wesson. He pulled Mee Nor from the kitchen sink, where she was washing dishes,
into the hallway, where the couple continued to push each other with the gun
between them. Mary went back to her bedroom, heard her parents arguing, and
then heard a shot. When she came out of her room, she saw her father holding Mee
Nor who was lying on the floor, begging her not to die. The gun was on the floor.
Mee Nor had died instantly from a contact or near contact gunshot to the head just
above 628*628 her eye. Defendant's eyeglasses and the empty cognac bottle were
found on the dining table. Each had blood on them. At 2:20 a.m. on February 15,
the day after the shooting, defendant had a blood-alcohol level of .26 percent.

An expert testified that at the time of the shooting defendant's blood-alcohol level
was between .33 and .39 percent.[4] At that level an individual has confusion,
severe muscular incoordination, difficulty in walking and talking, and loss of
critical judgment. It is a level of blood alcohol at which an individual can be
approaching unconsciousness, a comatose state, or even death. A person who
drank alcohol on a regular basis would have a greater tolerance than an
inexperienced drinker and would be able to function in what appears to be a
reasonably normal way. The level of impairment would be the same, however, in
the regular drinker and nondrinker at the same blood-alcohol level.

Defendant was charged with murder. The information also alleged that in the
commission of the offense he had used a firearm (§ 12022.5, subd. (a)) and that the
offense was a serious felony within the meaning of section 1192.7, subdivision
(c)(8). At the close of the evidence the jury was instructed on murder.

Both the prosecution and the defense requested instructions on voluntary

manslaughter. The trial court instructed the jury that voluntary intoxication could
negate any specific intent or mental element of murder or voluntary manslaughter.
Subsequently, in defining voluntary manslaughter the court instructed that if
malice was lacking an unlawful killing could be voluntary manslaughter even if the
killing was intentional. The court then instructed that there was no malice if the
killing occurred on sudden quarrel or heat of passion, going on to explain the
provocation necessary to justify finding sudden quarrel or heat of passion. Three
instructions told the jury intent to kill was an element of voluntary manslaughter.

The court then instructed that an unlawful killing without malice aforethought and
without intent to kill was involuntary manslaughter. The court instructed that a
killing was unlawful within the meaning of the instruction if committed during an
ordinarily lawful act that posed a high risk of death or great bodily harm without
due caution and circumspection, a criminal negligence theory of involuntary
manslaughter. The court also instructed that a killing by a person who was
unconscious as a result of voluntary intoxication was involuntary manslaughter.
The court did not instruct on the "misdemeanor manslaughter" form of involuntary
manslaughter, however. The omitted instruction, part of CALJIC No. 8.51, would
have advised the jury that: "If a person causes another's death, while committing a
misdemeanor or infraction which is dangerous to human life under the
circumstances of its commission, the crime is involuntary manslaughter."

Defense counsel argued that if defendant killed his wife there was no malice.
Therefore, the killing could only be manslaughter. She argued that the evidence
showed at most the elements of involuntary manslaughter. She suggested that
defendant was unconscious as a result of intoxication and, under the applicable
law, his offense was involuntary manslaughter.

During deliberations the jury requested that the testimony of the defense expert on
toxicology who had described the effects of intoxication be reread. The jury first
returned a verdict of not guilty of first degree murder and reported itself unable to
reach a unanimous verdict on second degree murder. The court then reread
CALJIC No. 8.72: "If you are satisfied beyond a reasonable doubt that the killing
was unlawful but you have a reasonable doubt whether the crime is murder or
manslaughter, you must give the defendant the benefit of such doubt and find it to
be manslaughter rather than murder." After further jury inquiries regarding the
meaning of "conscious disregard for human life and the instruction defining second
degree murder," the jury returned verdicts of 629*629 not guilty of second degree
murder and guilty of voluntary manslaughter, also finding true the charge that
defendant personally used a firearm in the commission of that offense.
Defendant appealed.

II

APPEAL

On appeal defendant contended that there was insufficient evidence to support the
verdict of voluntary manslaughter and that the trial court erred in failing to give
complete instructions on involuntary manslaughter. In support of the first claim he
argued that the evidence was not sufficient to establish an intent to kill or
provocation. In support of the second, he argued that the omission of an instruction
on misdemeanor manslaughter prevented the jury from finding that he had
committed misdemeanor manslaughter on a theory that the killing occurred during
the brandishing of a firearm in violation of section 417, subdivision (a)(2), a
misdemeanor.[5] Relying on People v. Williams (1975) 13 Cal.3d 559, 564, 119
Cal.Rptr. 210, 531 P.2d 778, and People v. McManis (1972) 26 Cal. App.3d 608,
614, 102 Cal.Rptr. 889, he argued that his failure to request that the instruction be
given on the basis of section 417 was irrelevant as the court was obligated to give
that instruction sua sponte.

It was more likely, defendant argued, that the jury would believe that in holding
the weapon during the pushing and shoving exchange, he committed a
misdemeanor that was inherently dangerous to human life than it was that the jury
would believe that the killing occurred while he was engaging in an ordinarily
lawful act which involves a risk of death or great bodily harm without due caution
or circumspection.

The Court of Appeal held that the evidence was sufficient to support a jury finding
of intent to kill. It nonetheless reversed the judgment of conviction on the ground
that a reasonable trier of fact could not find the evidence sufficient to establish that
the killing occurred "upon a sudden quarrel or heat of passion" (§ 192, subd. (a))
because there was no evidence that the quarrel was induced by provocation.
(People v. Saille (1991) 54 Cal.3d 1103, 1114, 2 Cal.Rptr.2d 364, 820 P.2d 588.)
Relying on People v. Williams (1969) 71 Cal.2d 614, 624, 79 Cal.Rptr. 65, 456
P.2d 633, the court reasoned that, as an element of the offense, provocation must
be affirmatively demonstrated, not left to speculation. The voluntary manslaughter
verdict was, therefore, "legally insupportable."

The Court of Appeal rejected the People's argument that defendant could not
obtain a reversal on the basis of an error that was favorable to the defendant. (See
Powell, supra, 34 Cal.2d at p. 205, 208 P.2d 974.) That rule was inapplicable, the
court reasoned, because the evidence did not indisputably establish as it had in
Powell that if the defendant, who had been convicted of manslaughter, was guilty
of any crime it was second degree murder, making the error there one that was
favorable to the defendant. In this case there was a "distinct possibility" that
defendant's offense was no more than involuntary manslaughter. However, the trial
court had also erred in giving instructions on involuntary manslaughter when it
omitted the instruction on misdemeanor manslaughter. Because the jury did not
have that option available when it brought in a verdict of voluntary manslaughter,
the Court of Appeal concluded it could not determine that error in returning the
voluntary manslaughter verdict was an error favorable to defendant.

The Court of Appeal reversed the judgment, reasoning that the jury had acquitted
defendant of murder, the sudden quarrel/heat of passion theory of voluntary
manslaughter was not supported by the evidence, and the evidence did support
conviction of involuntary manslaughter. The court therefore remanded defendant
to the trial court for resentencing on the lesser offense.

630*630 This court granted review to consider respondent's arguments that (1)
People v. Saille, supra, 54 Cal.3d at page 1114, 2 Cal. Rptr.2d 364, 820 P.2d 588,
holding that under section 188 malice is established whenever an intentional killing
is shown, should not preclude a verdict of voluntary manslaughter when a
sympathetic jury finds intent to kill, and (2) that a voluntary manslaughter
conviction need not be reduced to involuntary manslaughter when it is rendered in
response to instructions requested by a defendant that were not supported by the
evidence and the verdict resulting from that error was favorable to the defendant.

We conclude that Powell, supra, 34 Cal.2d 196, 208 P.2d 974, is dispositive
regardless of whether defendant's request for the voluntary manslaughter
instruction was a tactical decision and thus invited error. Therefore, we address
only the basis for our conclusion that the errors, if any, in instructing on voluntary
manslaughter on sudden quarrel or heat of passion and the conviction of voluntary
manslaughter were favorable to the defendant notwithstanding the omitted
instruction on the misdemeanor manslaughter form of involuntary manslaughter.

III
DISCUSSION

It has long been the rule in this state that, in the absence of prejudice, a defendant
may not complain of error favorable to the defendant, including the giving of
correct, but inapplicable, instructions and return of a verdict of an offense less than
that which the evidence shows. (§ 1258; see Powell, supra, 34 Cal.2d at pp. 206-
207, 208 P.2d 974; People v. Tuthill (1947) 31 Cal.2d 92, 102, 187 P.2d 16; People
v. Finch (1963) 213 Cal. App.2d 752, 777, 29 Cal.Rptr. 420; People v. Thompson
(1961) 193 Cal.App.2d 620, 626, 14 Cal.Rptr. 512; People v. Kelley (1914) 24
Cal.App. 54, 61, 140 P. 302.)

"[E]ven if it be assumed that the trier of fact erred here when he found defendant
guilty only of manslaughter, defendant cannot invoke reversal on an error which is
favorable to him. [Citations.] An appellant is precluded from complaining that he
was convicted of a lesser offense than the one of which he is guilty according to
undisputed evidence, or according to that view of the evidence which, it
indisputably appears, the trier of fact accepted." (Powell, supra, 34 Cal.2d at pp.
205-206, 208 P.2d 974.)

In Powell, the defendant was charged with abortion and murder of the victim. In a
nonjury trial the court found him guilty of abortion and voluntary manslaughter.
On appeal the defendant argued that the court did not have the power to find him
guilty of manslaughter because the evidence showed that he was either guilty of
second degree murder or of no crime. The court rejected that reasoning and held
that regardless of whether the verdict was simply error, or was the product of
extralegal considerations such as mercy, the trier of fact had the power to return a
verdict of a lesser offense than that shown either by undisputed evidence or by the
version of the evidence the record demonstrated had been accepted by the trier of
fact. (Powell, supra, 34 Cal.2d. at pp. 206-207, 208 P.2d 974.)

Defendant here argues that Powell is not applicable because in this case (1) the
jury did not indisputably accept the evidence that would support a conviction of the
greater offense, second degree murder, and (2) the evidence would have supported
an instruction on involuntary manslaughter on a theory that the killing occurred in
the commission of the misdemeanor of brandishing a weapon, but the appropriate
instruction was omitted. Unlike the circumstances in Powell, defendant argues, he
was not guilty only of murder or of no offense. Thus the voluntary manslaughter
verdict was not favorable to him.

For reasons discussed below, we disagree.

Before addressing the applicability of Powell to this case, we note our agreement
with the Court of Appeal on two important points. The evidence was sufficient to
support a finding of intent to kill and the trial court erred in failing to fully instruct
on involuntary manslaughter.
A. Evidence of Intent to Kill.

In determining whether, based on the entire record, a reasonable trier of fact could
631*631 conclude that the People proved the existence of an element of an offense
beyond a reasonable doubt, a reviewing court considers the evidence in a light
most favorable to the judgment and presumes the existence of every fact that could
reasonably be deduced from the evidence. (People v. Crittenden (1994) 9 Cal.4th
83, 139, 36 Cal.Rptr.2d 474, 885 P.2d 887.) The standard is the same when a case
relies in part on circumstantial evidence. "`"`If the circumstances reasonably justify
the trier of fact's findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a
reversal of the judgment.'" [Citations.]'" (People v. Stanley (1995) 10 Cal.4th 764,
793, 42 Cal.Rptr.2d 543, 897 P.2d 481.)

The evidence that defendant quarreled with his wife, the quarrel escalated into
shoving and pushing, defendant broke off the argument, went to another room and
obtained a loaded gun, and that gun was fired at close range while in contact with
the victim's head, is clearly sufficient to support an inference that defendant
retrieved and fired the gun with the intent to kill his wife.

B. Instructions.

1. Voluntary manslaughter instructions.

The Penal Code defines manslaughter as "the unlawful killing of a human being
without malice." (§ 192.) The offense is voluntary manslaughter when the killing is
"upon a sudden quarrel or heat of passion." (Id., subd. (a).) As we have explained
in greater detail in People v. Breverman (1998) 19 Cal.4th 142, 154, 77
Cal.Rptr.2d 870, 960 P.2d 1094 (Breverman), manslaughter has been considered a
lesser, necessarily included, offense of intentional murder. Generally, an intent to
unlawfully kill reflects malice. (§ 188; Breverman, supra, 19 Cal.4th at p. 153, 77
Cal.Rptr.2d 870, 960 P.2d 1094; People v. Saille, supra, 54 Cal.3d at p. 1113, 2
Cal.Rptr.2d 364, 820 P.2d 588.) An unlawful killing with malice is murder. (§
187.) Nonetheless, an intentional killing is reduced to voluntary manslaughter if
other evidence negates malice. Malice is presumptively absent when the defendant
acts upon a sudden quarrel or heat of passion on sufficient provocation (§ 192,
subd. (a)), or kills in the unreasonable, but good faith, belief that deadly force is
necessary in self-defense. (In re Christian S. (1994) 7 Cal.4th 768, 30 Cal. Rptr.2d
33, 872 P.2d 574.) Only these circumstances negate malice when a defendant
intends to kill. (People v. Barton (1995) 12 Cal.4th 186, 199, 47 Cal.Rptr.2d 569,
906 P.2d 531.)
Although section 192, subdivision (a), refers to "sudden quarrel or heat of
passion," the factor which distinguishes the "heat of passion" form of voluntary
manslaughter from murder is provocation. The provocation which incites the
defendant to homicidal conduct in the heat of passion must be caused by the victim
(see In re Thomas C. (1986) 183 Cal.App.3d 786, 798, 228 Cal.Rptr. 430), or be
conduct reasonably believed by the defendant to have been engaged in by the
victim. (See People v. Brooks (1986) 185 Cal.App.3d 687, 694, 230 Cal.Rptr. 86;
see also 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes Against the
Person, § 512, p. 579.) The provocative conduct by the victim may be physical or
verbal, but the conduct must be sufficiently provocative that it would cause an
ordinary person of average disposition to act rashly or without due deliberation and
reflection. (People v. Berry (1976) 18 Cal.3d 509, 515, 134 Cal.Rptr. 415, 556
P.2d 777; People v. Valentine (1946) 28 Cal.2d 121, 138-139, 169 P.2d 1.) "Heat
of passion arises when `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,
supra, 12 Cal.4th at p. 201, 47 Cal.Rptr.2d 569, 906 P.2d 531.)

There was evidence here that defendant and Mee Nor were engaged in an argument
prior to the shooting. There was no direct evidence that Mee Nor did or said
anything sufficiently provocative that her conduct would cause an average person
to react with deadly passion. Nor was there direct evidence that defendant acted
under the influence of such passion.

632*632 Respondent argues that something Mee Nor said to defendant after the
dinner guests left seemed to anger defendant as he and his wife argued and pushed
each other for five minutes before the gun was fired. Respondent also argues that
defendant may have been prone to emotional instability and lacked critical
judgment as a result of his intoxication, thus increasing the possibility that he
reacted strongly to only modest provocation.

The test of adequate provocation is an objective one, however. The provocation

must be such that an average, sober person would be so inflamed that he or she
would lose reason and judgment. Adequate provocation and heat of passion must
be affirmatively demonstrated. (People v. Sedeno (1974) 10 Cal.3d 703, 719, 112
Cal.Rptr. 1, 518 P.2d 913; People v. Williams, supra, 71 Cal.2d 614, 624, 79
Cal.Rptr. 65, 456 P.2d 633.)
We need not decide here whether the evidence of provocation was insufficient to
permit a reasonable jury to find that the killing was voluntary manslaughter rather
than murder on a heat of passion theory[6] or whether giving the instruction on
voluntary manslaughter was error (Breverman, supra, 19 Cal.4th at p. 162, 77
Cal.Rptr.2d 870, 960 P.2d 1094; People v. Steger (1976) 16 Cal.3d 539, 549, 128
Cal.Rptr. 161, 546 P.2d 665; People v. Anderson (1965) 63 Cal.2d 351, 360, 46
Cal.Rptr. 763, 406 P.2d 43), however. We need not do so because, as explained
below, even assuming arguendo that the instruction and the verdict were erroneous,
any such error was favorable to defendant.

2. Involuntary manslaughter instructions.

The first instruction on involuntary manslaughter given by the court was: "Every
person who unlawfully kills a human being without malice aforethought and
without an intent to kill is guilty of the crime of involuntary manslaughter in
violation of section 192(b). In order to prove such crime, each of the following
elements must be proved: One, a human being was killed; two, the killing was
unlawful." It was only after that instruction had been given that the court gave the
instructions, requested by defendant, which described two circumstances in which
involuntary manslaughter might be committed — criminal negligence and
unconsciousness resulting from voluntary intoxication.

As noted, the trial court did not instruct on misdemeanor manslaughter — an

unlawful killing without malice in the commission of an unlawful act not
amounting to felony. (§ 192, subd. (b).) That was error. As the Court of Appeal
recognized, when defendant used his gun in the quarrel with Mee Nor he violated
section 417, subdivision (a)(2), committing the misdemeanor offense of
"brandishing" a weapon. In Breverman, supra, 19 Cal.4th at page 160, 77
Cal.Rptr.2d 870, 960 P.2d 1094, we confirmed that the duty to instruct sua sponte
on lesser included offenses is not satisfied by instructing on only one theory of an
offense if other theories are supported by the evidence. This obligation exists even
when the defendant does not request the instruction or objects to its being given.
(People v. Barton, supra, 12 Cal.4th at p. 203, 47 Cal.Rptr.2d 569, 906 P.2d 531.)
Evidence that an unlawful killing without malice occurred in the commission of an
unlawful act not amounting to felony — the "misdemeanor manslaughter" theory
of involuntary manslaughter — is not simply the basis for a defense. Just as
evidence of "unreasonable self-defense" may establish one form of voluntary
manslaughter and is not simply a defense (Breverman, supra, 19 633*633 Cal.4th
at p. 159, 77 Cal.Rptr.2d 870, 960 P.2d 1094; People v. Barton, supra, 12 Cal.4th
at pp. 200-201, 47 Cal.Rptr.2d 569, 906 P.2d 531), evidence of misdemeanor
manslaughter may establish another form of involuntary manslaughter. For that
reason the trial court erred in failing to instruct sua sponte on that theory.

Nonetheless, we do not agree with the Court of Appeal and the dissent of Justice
Mosk that because defendant was acquitted of murder, and evidence of heat of
passion was insufficient to support the voluntary manslaughter verdict, a judgment
of involuntary manslaughter should be imposed. Whether the voluntary
manslaughter verdict should be upheld or is, as the Court of Appeal held, legally
insupportable in the absence of adequate provocation is a question independent of
whether the trial court erred in instructing on manslaughter. If error in giving the
voluntary manslaughter instruction or in returning that verdict was favorable to
defendant, he may not complain of the error on appeal and the judgment must be
affirmed.

C. The Voluntary Manslaughter Conviction Was Favorable to Defendant.

Respondent asks the court to apply the Powell rule — defendant may not complain
on appeal of an error favorable to the defendant or that he or she has been
convicted of a lesser offense than that which the evidence indisputably accepted by
the jury warranted. (Powell, supra, 34 Cal.2d at p. 206, 208 P.2d 974.) Defendant
argues that Powell is distinguishable because, unlike the defendant in Powell, he
was not guilty of murder or of no offense. The evidence was such that he might
also have been convicted of involuntary manslaughter had the jury been properly
instructed. We do not consider that difference dispositive. It is not so because
defendant's jury was given a general definition of involuntary manslaughter under
which it could have convicted defendant notwithstanding the error in failing to
instruct on misdemeanor manslaughter. The instructions on the criminal negligence
and unconsciousness-induced-by-voluntary-intoxication forms of involuntary
manslaughter were illustrative, not restrictive. After defining involuntary
manslaughter simply as an unlawful, unintentional killing without malice, the court
instructed: (1) "A killing is unlawful within the meaning of this instruction if it
occurred ... in the commission of an act ordinarily lawful which involves a high
degree of risk of death or great bodily harm without due causation and
circumspection..." and (2) "If you find that a defendant while unconscious as a
result of voluntary intoxication killed another human being without intent to kill
and without malice aforethought, the crime is involuntary manslaughter. When a
person voluntarily induces his own intoxication to the point of unconsciousness, he
or she assumes the risk that while unconscious he or she will commit acts
inherently dangerous to human life or safety. Under the circumstances, the law
implies criminal negligence." Neither instruction implied that these two forms of
involuntary manslaughter were exclusive.

In Breverman, supra, 19 Cal.4th at page 174, 77 Cal.Rptr.2d 870, 960 P.2d 1094,
we held that article VI, section 13 of the California Constitution mandates that the
court assess the impact of erroneous misdirection of a jury, including failure to
instruct on one of several theories on which guilt of a lesser included offense might
be found, on the basis of the entire cause, including the evidence, to determine if
the error resulted in a miscarriage of justice. The error does so only if it appears
reasonably probable that a result more favorable to the defendant would have been
reached absent the error. (See also People v. Watson (1956) 46 Cal.2d 818, 836,
299 P.2d 243.) In posttrial review of a judgment an appellate court "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." (Breverman, supra, 19 Cal.4th at p. 177,
77 Cal.Rptr.2d 870, 960 P.2d 1094.) We see no basis for distinguishing an
assessment of error in failing to instruct on one involuntary manslaughter theory in
this case for purposes of applying Powell. We must examine the jury's action in
light of the evidence and the instructions given to determine if the voluntary
manslaughter verdict was favorable to defendant.

634*634 Here, although a misdemeanor manslaughter instruction was erroneously

omitted, the jury had the opportunity to convict defendant of involuntary
manslaughter if it found simply an unlawful, unintentional killing, without malice.
The jury nonetheless rejected the option of an involuntary manslaughter verdict,
found intent to kill, and convicted defendant of voluntary manslaughter.

The jury had been instructed three times that it must find intent to kill in order to
return a verdict of voluntary manslaughter.[7] The evidence supported such a
finding. We conclude on that basis that the error in failing to instruct on
misdemeanor manslaughter was not prejudicial. It is not likely that had it been
properly instructed the jury would have returned an involuntary manslaughter
verdict. Put otherwise, it is not reasonably probable that the error affected the
voluntary manslaughter verdict. It does not, therefore, enter into our assessment of
whether the possible errors in instructing and returning a verdict on voluntary
manslaughter were favorable to defendant.

Insofar as the instruction on voluntary manslaughter as an intentional killing in the

heat of passion is concerned, any error was favorable to defendant. The evidence
was sufficient to support the conviction of murder. The jury necessarily found that
the killing was intentional which, ordinarily, would establish malice and thus
murder. The prosecutor argued that evidence showed not just second, but first,
degree murder. The jury nonetheless convicted defendant of voluntary
manslaughter instead of murder. The dissenting justices reason that the verdict
establishes that the jury did not find malice beyond a reasonable doubt. We
disagree. Regardless of the jury's understanding of malice as an abstract concept, it
did find beyond a reasonable doubt that defendant intended to kill Mee Nor. In
doing so, it found malice as a matter of law. Contrary to the view of Justice Mosk,
intoxication does not negate malice which is established by intent to kill.

Defendant argues that the court should not presume that the jury which erred in
finding heat of passion was nonetheless correct in finding intent. We do not
assume that the jury found sufficient evidence of provocation and relied on that
theory in returning the voluntary manslaughter verdict, however. It is equally or
more likely that, under the instructions it was given, the jury erroneously believed
that defendant's gross intoxication negated the malice element of murder.

Before instructing on murder and manslaughter, the court instructed: "The next
instruction applies to murder first, murder second, and voluntary [sic] ... Under the
law it is the general rule that no act committed by a person while in a state of
voluntary intoxication is less criminal by reason of being in such condition....
However, there is an exception to this general rule, namely, where a specific intent
or mental state is an essential element of a crime, in such event, you should
consider the defendant's voluntary intoxication in your determination of whether
the defendant possessed the required specific intent or mental state at the time of
the commission of the alleged crime.

"Thus, in the crimes charged, namely, murder first, murder second and voluntary
manslaughter, a necessary element is the existence in the mind of the defendant of
a certain specific intent or mental state which is included in the definition of the
crimes set forth elsewhere in these instructions.

"If the evidence shows that a defendant was intoxicated at the time of the alleged
crime, you should consider that fact in determining whether or not such defendant
had such specific intent or mental state. If from all the evidence you have a
reasonable doubt whether the defendant had such specific intent or mental state,
you must find that 635*635 defendant did not have such specific intent or mental
state."

Other instructions referred to malice as a "mental state" and told the jury that "[t]he
distinction between murder and manslaughter is that murder requires malice, while
manslaughter does not." Another instruction told the jury that malice could be
absent even though the killing was intentional: "Every person who unlawfully kills
another human being without malice aforethought, but with an intent to kill, is
guilty of voluntary manslaughter." This instruction was one of three which
emphasized that intent to kill was an element of voluntary manslaughter. Based on
the instructions it was given the jury could reasonably conclude that, even if intent
to kill was present, if voluntary intoxication was also present malice could be
negated. Thus the jury was not led to believe that heat of passion was the only
basis on which a voluntary manslaughter verdict could be returned. Since the
evidence of gross intoxication was substantial, while evidence of heat of passion
was lacking, we do not presume, as defendant suggests, that the jury erroneously
concluded that the evidence of heat of passion was sufficient to negate malice. It is
more likely the jury concluded that although the killing was intentional it was
committed without malice because defendant was grossly intoxicated. Since
intoxication could not and did not mitigate malice, the jury necessarily found
beyond a reasonable doubt all of the facts necessary to a conviction of second
degree murder.

When, as here, a jury necessarily finds all of the facts required for a conviction of
murder, but convicts the defendant of voluntary manslaughter, any error in that
conviction is favorable to the defendant. The Powell criteria are satisfied in these
circumstances. In finding that the killing was intentional, the jury indisputably
found all of the facts necessary to establish second degree murder. The jury was
instructed that intent to kill is an element of voluntary manslaughter. Under section
188 this intent to kill is sufficient to establish malice. Thus, the jury necessarily
found an unlawful killing of a human being in which malice aforethought was
present unless malice was negated by heat of passion or, under the instructions
given, by voluntary intoxication. Therefore, assuming as we do that there was
insufficient evidence of heat of passion to negate malice, defendant was "convicted
of a lesser offense than the one of which he is guilty ... according to that view of
the evidence which, it indisputably appears, the trier of fact accepted." (Powell,
supra, 34 Cal.2d at p. 206, 208 P.2d 974.) He may not "invoke reversal on an error
which is favorable to him." (Id. at p. 205, 208 P.2d 974.)

Numerous decisions of other state courts also recognize the propriety of sustaining
a conviction of voluntary manslaughter notwithstanding the absence of heat of
passion when the evidence supports a conviction of murder. (See Jimmerson v.
State (1925) 169 Ark. 353, 354, 275 S.W. 662, 663 ["Not being accidental, it must
have been, under the facts, murder in the first degree; so that the defendant was not
prejudiced by a verdict for a lower offense...."]; Commonwealth v. Harry (1970)
437 Pa. 532, 535, 264 A.2d 402, 404 ["`It has long been established that under an
indictment for murder, a jury may return a verdict of voluntary manslaughter,
though the evidence is insufficient to show passion or provocation, where the
record discloses that defendant properly could have been convicted of murder.'"];
State v. Vega (1979) 40 N.C.App. 326, 333-334, 253 S.E.2d 94, 98-99 ["[A]s a
matter of law adequate provocation could not be found to exist so as to justify
submission of voluntary manslaughter.... [¶] ... The trial court gave the jury an
opportunity which legally they should not have had, to find defendant guilty of a
lesser offense. Having been found guilty of a lesser included offense not raised by
the evidence, defendant could not have been prejudiced by its submission. The
error was manifestly favorable to the defendant and is not reversible."]; Patrick v.
State (1969) 245 Ark. 923, 924, 436 S.W.2d 275, 276 ["[T]he accused cannot
complain of such a charge [voluntary manslaughter in the absence of proof of heat
of passion] if the proof would have supported a finding that he was guilty of a
higher degree of homicide than that for which he was convicted."]; O'Conner v.
State (1980) 272 Ind. 460, 467, 399 N.E.2d 364, 369 ["[I]n McDonald v. 636*636
State (1976) 264 Ind. 477, 483, 346 N.E.2d 569, 574, this Court stated: `(I)f
sufficient evidence is presented to the jury by which it could find murder in the
first or second degree, the jury may also return a verdict of guilty of voluntary
manslaughter, notwithstanding the absence of proof of "sudden heat."'"]; State v.
Heald (Me.1972) 292 A.2d 200, 201 ["[A] defendant cannot be heard to complain
of an error which works to his advantage. He is not thereby prejudiced. [Citations.]
... `If, for some reason satisfactory to them (the jury), they mistakenly believe that
an accused is not guilty of the higher grade of offense charged, and find him guilty
of a lesser grade, it is difficult to see how the mitigation is harmful to the
accused.'"]; State v. Perry (1907) 78 S.C. 184, 185, 59 S.E. 851, 852 ["There was
testimony tending to show that the defendant was guilty of murder. Therefore he
has no just cause to complain that the jury took a merciful view of his case, and
simply found him guilty of manslaughter."]; State v. Ellis (1950) 70 Idaho 417, 420
[219 P.2d 953, 954] ["`[U]pon a charge of murder in the first degree, the jury may
find a defendant guilty of manslaughter, even though there is no evidence to show
the lesser rather than the greater crime.'"].)

Nothing in Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (Jackson) suggests that the Powell rule is not fully consistent with federal due
process demands. That opinion reaffirms the dueprocess-based standard of proof
beyond a reasonable doubt of every element of a criminal offense, a standard
established by the court earlier in In re Winship (1970) 397 U.S. 358, 90 S.Ct.
1068, 25 L.Ed.2d 368 (Winship ). The Jackson court did not have before it any
question related to the one we address here—whether a judgment of conviction of
voluntary manslaughter may be affirmed in the absence of evidence of provocation
on the ground that the jury, on sufficient evidence, necessarily found beyond a
reasonable doubt all of the facts necessary to a conviction of murder. Since
Jackson did no more than apply the 1970 Winship standard the decision did not, as
the dissent of Justice Mosk suggests, render the Powell rule one of "dubious
vitality." (Dis. opn. of Mosk, J., post, 82 Cal.Rptr.2d at p. 643, 971 P.2d at p.
1019.) As shown above, variations of the Powell rule have continued to be applied
by our sister states long after Winship. We therefore reject the argument that the
voluntary manslaughter verdict in this case may not stand in the absence of
evidence of provocation.

IV
DISPOSITION

The judgment of the Court of Appeal is reversed.

GEORGE, C.J., and CHIN, J., concur.

Concurring Opinion by BROWN, J.

I agree that defendant's voluntary manslaughter conviction should be affirmed. I

write separately because my analysis of the issues presented differs from that set
out in the plurality opinion.

I begin with an examination of the jury's voluntary manslaughter verdict. Although

the plurality declines to decide the issue (plur. opn., ante, 82 Cal.Rptr.2d at pp.
632-633, 971 P.2d at pp. 1008-1009), the jury's verdict is clearly supported by the
evidence. As this court recently explained in People v. Breverman (1998) 19
Cal.4th 142, 77 Cal. Rptr.2d 870, 960 P.2d 1094 (Breverman), "[b]ecause heat of
passion ... reduce[s] an intentional, unlawful killing from murder to voluntary
manslaughter by negating the element of malice that otherwise inheres in such a
homicide [citation], voluntary manslaughter of [this] form[] is considered a lesser
necessarily included offense of intentional murder [citation]." (Id. at p. 154, 77
Cal.Rptr.2d 870, 960 P.2d 1094, original italics and fn. omitted.) "`Under
California law, a lesser offense is necessarily included in a greater offense if ... the
greater cannot be committed without also committing the lesser.' [Citation.]" (Id. at
p. 154, fn. 5, 77 Cal.Rptr.2d 870, 960 P.2d 1094, italics added.) Thus, by
definition, if the evidence is sufficient for a jury to have convicted of the greater
offense (here, second degree murder), which everyone agrees that it was (see
637*637 plur. opn., ante, 82 Cal.Rptr.2d at pp. 627, 634, 971 P.2d at pp. 1003,
1010; see also dis. opn. of Mosk, J., post, 82 Cal.Rptr.2d at pp. 643, 644, 971 P.2d
at pp. 1019, 1020), it is necessarily sufficient for a jury to have convicted of the
lesser included offense (here, voluntary manslaughter).

Stated somewhat more generally, although a trial court should not instruct on a
lesser included offense "when there is no evidence that the offense was less than
that charged" (Breverman, supra, 19 Cal.4th at p. 154, 77 Cal.Rptr.2d 870, 960
P.2d 1094), it does not follow that if a trial court nonetheless instructs and a jury
nonetheless convicts, the conviction of the lesser included offense should be
reversed for insufficient evidence. To the contrary, because evidence of the greater
offense was sufficient, evidence of the lesser included offense is necessarily
sufficient.

An examination of the factual record and the instructions given to the jury in this
case leads to the same conclusion. Pursuant to CALJIC No. 8.50, the jury was
instructed as follows: "To establish that a killing is murder and not manslaughter,
the burden is on the People to prove beyond a reasonable doubt each of the
elements of murder and that the act which caused the death was not done in the
heat of passion or upon a sudden quarrel."[1] Pursuant to CALJIC No. 8.72, the jury
was also instructed as follows: "If you are satisfied beyond a reasonable doubt that
the killing was unlawful but you have a reasonable doubt whether the crime is
murder or manslaughter, you must give the defendant the benefit of such doubt and
find it to be manslaughter rather than murder." Here, as the Court of Appeal
observed, "[w]hile defendant was clearly provoked, there is no evidence in this
record upon which the trier of fact could rationally assess whether the provocation
was sufficient to cause the average person to have acted similarly."[2] Viewed in
this light, the jury's voluntary manslaughter verdict reflects nothing more than its
conclusion that the prosecution failed to carry its assigned burden of negating heat
of passion beyond a reasonable doubt.[3]

II

Nor do the involuntary manslaughter instructions given to the jury provide a basis
for reversing defendant's voluntary manslaughter conviction. The plurality holds
that the trial court erred when it failed to instruct sua sponte on a misdemeanor
manslaughter theory of involuntary manslaughter. (Plur. opn., ante, 82 Cal.Rptr.2d
at pp. 632-633, 971 P.2d at pp. 1008-1009.) According to the plurality, such
instructions were warranted because "when defendant used his gun in the quarrel
with [his wife] he 638*638 violated [Penal Code] section 417, subdivision (a)(2),
committing the misdemeanor offense of `brandishing' a weapon." (Plur. opn., ante,
82 Cal.Rptr.2d at p. 632, 971 P.2d at p. 1008.) The plurality then proceeds to deem
the error harmless. (Id. 82 Cal.Rptr.2d at pp. 632-634, 971 P.2d at pp. 1008-1010.)

This case demonstrates, yet again, the pitfalls of requiring trial courts to instruct
sua sponte on lesser included offenses. (See Breverman, supra, 19 Cal.4th at pp.
195-202, 77 Cal.Rptr.2d 870, 960 P.2d 1094 (dis. opn. of Brown, J.).) As a legal
matter, requiring sua sponte instructions on involuntary manslaughter, on a
misdemeanor manslaughter theory, on a "brandishing" subtheory, demands that our
trial judges be psychic. And, as a factual matter, I question whether such
instructions were warranted in this case. As noted above, a trial court should not
instruct on a lesser included offense "when there is no evidence that the offense
was less than that charged." (Breverman, supra, 19 Cal.4th at p. 154, 77
Cal.Rptr.2d 870, 960 P.2d 1094.) Here, it is doubtful whether a rational jury could
have found that brandishing — and only brandishing — occurred. It appears that at
a bare minimum, when defendant used his gun during the quarrel with his wife, he
committed felony assault. (Cf. People v. Lipscomb (1993) 17 Cal.App.4th 564,
569-570, 21 Cal.Rptr.2d 445.) Under these circumstances, I would not require the
trial court to have instructed sua sponte on the misdemeanor manslaughter theory
of involuntary manslaughter.[4]

III

For the reasons discussed above, I agree that defendant's voluntary manslaughter
conviction should be affirmed.

Dissenting Opinion by MOSK, J.

I dissent.

After trial in the superior court, a jury returned a verdict finding defendant guilty of
the voluntary manslaughter of his wife and also made a finding that he personally
used a firearm therein. The superior court rendered a judgment convicting and
sentencing him accordingly.

The Court of Appeal reversed. As defendant had claimed, it concluded that the
jury's verdict finding him guilty of voluntary manslaughter was not supported by
sufficient evidence in violation of the due process clause of the Fourteenth
Amendment to the United States Constitution as construed in Jackson v. Virginia
(1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. It then remanded the cause to
the superior court with directions to render a judgment convicting defendant of
involuntary manslaughter and sentencing him therefor.

Although it was without any ground on which to order review, this court
nevertheless chose to intervene, apparently in order to do what it deemed to be
substantial justice. Regrettably, in reversing the Court of Appeal's judgment today,
it has done the opposite.

Murder is the "unlawful killing of a human being ... with malice aforethought."
(Pen. Code, § 187, subd. (a).) Malice aforethought "may be express or implied. It is
express when there is manifested a deliberate intention unlawfully to take away the
life of a fellow creature. It is implied, when no considerable provocation appears,
or when the 639*639 circumstances attending the killing show an abandoned and
malignant heart." (Id., § 188.) Murder is "of the first degree" if it is "perpetrated ...
by any ... kind of willful, deliberate, and premeditated killing," including killing by
specified means, or if it is "committed in the perpetration of, or attempt to
perpetrate," specified felonies. (Id., § 189.) Murder is "of the second degree" if it is
not of the first (ibid.), which means that it is simply an unlawful killing with malice
aforethought.

Manslaughter is the "unlawful killing of a human being without malice"

aforethought. (Pen.Code, § 192.) Manslaughter is "[v]oluntary" if it is perpetrated
"upon a sudden quarrel or heat of passion" (id., § 192, subd. (a)) following
provocation adequate to arouse a reasonable person (e.g., People v. Valentine
(1946) 28 Cal.2d 121, 136-144, 169 P.2d 1) — in other words, if it is perpetrated
upon "adequate provocation" (e.g., People v. Rhinehart (1973) 9 Cal.3d 139, 154,
107 Cal. Rptr. 34, 507 P.2d 642, disapproved on another point, People v. Bolton
(1979) 23 Cal.3d 208, 213-214, 152 Cal.Rptr. 141, 589 P.2d 396; People v.
Williams (1969) 71 Cal.2d 614, 624, 79 Cal.Rptr. 65, 456 P.2d 633) or, simply,
upon "provocation" (e.g., People v. Jackson (1980) 28 Cal.3d 264, 305, 168
Cal.Rptr. 603, 618 P.2d 149 (plur.opn.); People v. Morse (1969) 70 Cal.2d 711,
734;, 76 Cal.Rptr. 391, 452 P.2d 6071 Witkin & Epstein, Cal.Criminal Law (2d ed.
1988) Crimes Against the Person, § 512, p. 579). Manslaughter is "[i]nvoluntary"
if it is perpetrated (other than in the driving of a vehicle) "in the commission of an
unlawful act, not amounting to a felony" (Pen.Code, § 192, subd. (b)) — briefly, in
the course of a misdemeanor — or "in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and circumspection"
(ibid.) — in short, as a result of what is termed "criminal negligence."[1]
II

At the trial of this cause, the evidence introduced by the People and by defendant
himself showed, virtually beyond dispute, that the "conduct/result" element
common to first and second degree murder and voluntary and involuntary
manslaughter was present: As defendant was brandishing a handgun in his wife's
face, he shot and killed her, and did so unlawfully. But as for the "mental" element
peculiar to each offense, it was otherwise. For defendant's state of mind at the time
of the incident was difficult to assess. What was clear was that he was then so
profoundly intoxicated as to approach unconsciousness, coma, and even death. An
expert so testified. What was also clear was that he had not been provoked. There
was 640*640 simply no direct or even circumstantial evidence that showed or even
suggested that he had been confronted with any word or deed, on the part of his
wife or anyone else, that would have been adequate to arouse a reasonable person
to do what he did. Unsurprisingly, the prosecutor did not argue in favor of
voluntary manslaughter on any theory, but, quite the contrary, argued against it
without qualification. So too did defense counsel.

In its charge to the jury, the superior court defined murder as the unlawful killing
of a human being with malice aforethought, and defined malice aforethought as
"either express or implied": it is "express" when "there is manifested an intention
unlawfully to kill a human being"; it is "implied" when (1) the "killing resulted
from an intentional act," (2) the "natural consequences of the act are dangerous to
human life," and (3) the "act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life." It instructed on first
degree murder, by premeditation and deliberation but not in the perpetration of a
felony. It also instructed on second degree murder, specifically via implied malice
aforethought and not express.

In addition, the superior court defined manslaughter as the unlawful killing of a

human being without malice aforethought. It implied that malice aforethought
might be absent if the killing occurred during intoxication. In spite of the absence
of evidence introduced by either the People or defendant, and in the face of
argument to the contrary presented by both the prosecutor and defense counsel, it
stated that malice aforethought might be deemed to be absent "if the killing
occurred ... upon a sudden quarrel or heat of passion" following "provocation... of
such character and degree as naturally would excite or arouse" such a state of
affairs. It also stated that malice aforethought had to be deemed to be absent unless
the People proved beyond a reasonable doubt that the killing did not occur under
circumstances of this sort. Again, in spite of the absence of evidence, and in the
face of argument to the contrary, it instructed — erroneously — on voluntary
manslaughter. It stated that the offense required that (1) a "human being was
killed," (2) the "killing was unlawful," and (3) the "killing was done with the intent
to kill." It implied that the offense required that the "killing occurred ... upon a
sudden quarrel or heat of passion" following "provocation... of such character and
degree as naturally would excite or arouse" such a state of affairs. It stated that the
People had to prove beyond a reasonable doubt that the killing did not occur under
circumstances of this sort. It also instructed on involuntary manslaughter. It stated
that the offense required that (1) a "human being was killed," and (2) the "killing
was unlawful." It instructed on the offense — erroneously — only as a result of
criminal negligence and not also in the course of a misdemeanor, such as
brandishing a firearm (Pen.Code, § 417, subd. (a)(2)), inasmuch as it stated only
that a "killing is unlawful ... if it occurred" "[i]n the commission of an act
ordinarily lawful, which involves a high degree of risk of death or great bodily
harm, without due caution and circumspection."

On the first day of its deliberations, the jury requested an examination of certain
evidence reflective of the setting and surroundings of the killing. The superior
court granted what it sought.

On the second day, the jury requested a rereading of the testimony of the expert
that defendant was so profoundly intoxicated at the time of the incident as to
approach unconsciousness, coma, and even death. Again, the superior court
granted what it sought.

On the third and last day, the jury returned a verdict finding defendant not guilty of
first degree murder and then one finding him not guilty of second degree murder.
In so doing, under the instructions given, it necessarily found that there was at least
a reasonable doubt about malice aforethought — which meant that there was at
least a reasonable doubt about malice aforethought both in its express form, which
entailed intent to kill, and in its implied form, which involved conscious disregard
for human life. After it returned its not-guilty verdict on first degree murder, it
informed the superior court that it was then "unable to 641*641 reach a unanimous
verdict on" second degree murder. The superior court instructed that, "If you are
satisfied beyond a reasonable doubt that the killing was unlawful but you have a
reasonable doubt whether the crime is murder or manslaughter, you must give the
defendant the benefit of such doubt and find it to be manslaughter rather than
murder." Later, the jury made requests relating to second degree murder via
implied malice aforethought: What is the definition of "conscious disregard for
human life"? What kind of act is required? The latter request the superior court
granted, essentially paraphrasing one of the instructions that it had given. The
former request it refused: "You must use your common sense to arrive at the
definition of this term." In making its requests, the jury revealed that it could not
agree whether the People had proved beyond a reasonable doubt that defendant
harbored malice aforethought in its implied form because of his profound
intoxication. It did not reveal any concern that they might have failed to prove to
the same degree of certainty that he had not been provoked — with the result that
he had to be deemed not to have harbored malice aforethought, either express or
implied, whether he actually did so or not. It proceeded to return the verdict,
referred to above, finding him not guilty of second degree murder. Finally, it
returned a verdict finding him guilty of voluntary manslaughter, and also made a
finding that he personally used a firearm therein. In so doing, under the instructions
given, it necessarily found intent to kill and provocation beyond a reasonable
doubt. As a consequence, it had no occasion to return any verdict on involuntary
manslaughter.

III

On defendant's claim, the Court of Appeal concluded that the jury's verdict finding
him guilty of voluntary manslaughter was not supported by sufficient evidence in
violation of the Fourteenth Amendment's due process clause.

Rightly so.

A jury's verdict finding a defendant guilty of an offense satisfies the Fourteenth

Amendment's due process clause as construed in Jackson v. Virginia, supra, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, if, and only if, it is supported by
sufficient evidence. (Id. at pp. 313-324, 99 S.Ct. 2781.) It is supported by sufficient
evidence if, and only if, it is supported by evidence that would have allowed at
least some rational trier of fact to have found the each of the offense's elements
beyond a reasonable doubt. (Ibid.)

In this cause, the jury's verdict finding defendant guilty of voluntary manslaughter
was not supported by sufficient evidence because it was not supported by evidence
that would have allowed any rational trier of fact to have found the element of
provocation beyond a reasonable doubt. What was stated above bears restatement
here: There was simply no direct or even circumstantial evidence that showed or
even suggested that defendant had been confronted with any word or deed, on the
part of his wife or anyone else, that would have been adequate to arouse a
reasonable person to do what he did.
It is plain that a verdict by the jury finding defendant guilty of second degree
murder, had one been returned, would have been supported by sufficient evidence.
A rational trier of fact could have found each of the elements of this offense
beyond a reasonable doubt. It could surely have determined to the requisite degree
of certainty that there was an unlawful killing. So too as for malice aforethought, at
least in its implied form.

It is also plain that a verdict by the jury finding defendant guilty of involuntary
manslaughter, had one been returned, would have been supported by sufficient
evidence. A rational trier of fact could have found each of the elements of this
offense beyond a reasonable doubt. As stated, it could surely have determined to
the requisite degree of certainty that there was an unlawful killing. Likewise for its
occurrence as a result of criminal negligence or in the course of a misdemeanor, to
wit, brandishing a firearm.

But it is just as plain that the jury's verdict finding defendant guilty of voluntary
manslaughter — the verdict that it did in fact return — was not supported by
sufficient evidence. Without any evidence whatsoever 642*642 to rely on, no
rational trier of fact could have found the element of provocation.

IV

The plurality practically ignore the Court of Appeal's conclusion that the jury's
verdict finding defendant guilty of voluntary manslaughter was not supported by
sufficient evidence in violation of the Fourteenth Amendment's due process clause.
They likewise practically ignore defendant's claim to that effect — a point that he
raised below, and one that he has not abandoned here.[2]

The reason for the plurality's virtual omission is not hard to guess. Any attempt to
reject the Court of Appeal's conclusion or to deny defendant's claim would not, and
could not, succeed.

Instead of accepting reversal, which is assuredly mandated by the United States

Constitution, the plurality strain after affirmance, which is supposedly mandated
by the California Constitution.

Of course, if the California Constitution demanded affirmance and the United

States Constitution demanded reversal, the conflict would have to be resolved in
favor of the latter and against the former. The supremacy clause, which the federal
document contains in its article VI, section 2, and which the state document
acknowledges in its article III, section 1, requires no less.
To affirm under the California Constitution, the plurality rely on People v. Powell
(1949) 34 Cal.2d 196, 208 P.2d 974.

In Powell, we held that a defendant is "precluded from complaining" on appeal that

"he was convicted of a lesser offense than the one of which he is guilty according
to undisputed evidence, or according to that view of the evidence which, it
indisputably appears, the trier of fact accepted" (People v. Powell, supra, 34
Cal.2d at p. 206, 208 P.2d 974, italics added.)

Under the rule of Powell, defendant is not precluded from complaining of his
conviction for voluntary manslaughter.

For it is simply not the case that defendant is guilty of first or even second degree
murder "according to undisputed evidence." (People v. Powell, supra, 34 Cal.2d at
p. 206, 208 P.2d 974.) The evidence was, manifestly, disputed and disputable. The
plurality do not claim otherwise.

Neither is it the case that defendant is guilty of first or even second degree murder
"according to that view of the evidence which, it indisputably appears, the trier of
fact accepted." (People v. Powell, supra, 34 Cal.2d at p. 206, 208 P.2d 974.) The
plurality claim otherwise. I should not have to emphasize this fact, but evidently I
must: The jury returned a verdict finding defendant not guilty of first degree
murder. It also returned a verdict finding him not guilty of second degree murder.
It thereby showed "indisputably" that the "view of the evidence" that it "accepted"
prevented it from finding him guilty of either offense.

The plurality assert that the evidence was sufficient for a verdict by the jury
finding defendant guilty of second degree murder. That is true. But of no import.

The plurality then assert that the jury "necessarily" found that defendant was
indeed guilty of second degree murder, or at least that it "necessarily" found each
of its elements. (Plur. opn., ante, 82 Cal.Rptr.2d at p. 627, 971 P.2d at p. 1003.)
That is false.

The plurality's major premise is that malice aforethought in its express form entails
643*643 intent to kill. It will be accepted for purposes of discussion.

The plurality's minor premise is that the jury "necessarily" found malice
aforethought in its express form by returning its verdict finding defendant guilty of
voluntary manslaughter — which, under the instructions given, implies a finding of
intent to kill beyond a reasonable doubt. It must be rejected.
The plurality altogether disregard the jury's verdicts finding defendant not guilty of
first or second degree murder — which, under the instructions given, imply a
finding, subject only to a single qualification, of at least a reasonable doubt about
intent to kill.

For the first- and second-degree-murder not-guilty verdicts imply a finding of at

least a reasonable doubt about malice aforethought. A finding of at least a
reasonable doubt about malice aforethought implies, in turn, a finding of at least a
reasonable doubt about both its express form and its implied form. A finding of at
least a reasonable doubt about malice aforethought's implied form implies, in its
turn, a finding of at least a reasonable doubt about what that form involves,
namely, conscious disregard for human life. Similarly — and decisively here — a
finding of at least a reasonable doubt about malice aforethought's express form
implies, in its turn, a finding of at least a reasonable doubt about what that form
entails, namely, intent to kill.

The qualification referred to above is this: As a matter of logic, the first- and
second-degree-murder not-guilty verdicts might perhaps simply imply a finding
that the People did not prove the absence of provocation beyond a reasonable
doubt, with the result that defendant had to be deemed not to have harbored malice
aforethought, either express or implied, whether he actually did so or not. As a
matter of fact, however, the verdicts in question do not so imply. The plurality
themselves effectively admit that it was not "likely" that provocation was even at
issue. (Plur. opn., ante, 82 Cal.Rptr.2d at p. 635, 971 P.2d at p. 1011.) Reasonably
so. For, as both the prosecutor and defense counsel argued, neither the People nor
defendant introduced any direct or even circumstantial evidence that showed or
even suggested that defendant had been confronted with any word or deed, on the
part of his wife or anyone else, that would have been adequate to arouse a
reasonable person to do what he did. From all that appears, the jury did not
speculate otherwise. As explained above, it could not agree whether the People had
proved beyond a reasonable doubt that defendant harbored malice aforethought in
its implied form because of his profound intoxication. It was not concerned that
they might have failed to prove to the same degree of certainty that he had not been
provoked.

Not only do the plurality rely on the rule of Powell to affirm under the California
Constitution, they also rely on a rule that they derive from the common law of
various jurisdictions. (See generally, Annot, Propriety of Manslaughter Conviction
in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter
(1983) 19 A.L.R.4th 861, 864-912.)
At the outset, we must note that this rule, which dispenses with the requirement of
sufficient evidence for each of the elements of an offense as a matter of common
law (see Annot., Propriety of Manslaughter Conviction in Prosecution for Murder,
Absent Proof of Necessary Elements of Manslaughter, supra, 19 A.L.R.4th at pp.
864-912), arose prior to, and therefore apart from, Jackson v. Virginia, supra, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, which imposes such a requirement under
the Fourteenth Amendment's due process clause (see id. at pp. 313-324, 99 S.Ct.
2781). We must also note that the rule — to understate the matter — is now of
dubious vitality.

That put aside, the rule operates in the following situation: At a defendant's trial,
there was sufficient evidence of each of the elements of a greater offense; by
contrast, there was not sufficient evidence of at least one of the elements of a lesser
offense; he was convicted of the lesser offense and not the greater. On appeal, he is
not allowed to complain of the result, because the result (it is supposed) was
necessarily favorable to his interests: he could have been convicted of the greater
offense instead of the lesser.

644*644 In a different situation, the rule does not operate: At a different

defendant's trial, there was sufficient evidence of each of the elements of a greater
offense; by contrast, there was not sufficient evidence of at least one of the
elements of a lesser offense; there was, however, sufficient evidence of each of the
elements of an even lesser, or "least," offense; he was convicted of the lesser
offense and not the greater or the least. On appeal, he is allowed to complain of the
result, because the result was not necessarily favorable to his interests: although he
could have been convicted of the greater offense instead of the lesser, he could also
have been convicted of the least.

This cause presents the latter situation and not the former. At defendant's trial,
there was sufficient evidence of each of the elements of second degree murder; by
contrast, there was not sufficient evidence of at least one element of voluntary
manslaughter, specifically, provocation; there was, however, sufficient evidence of
each of the elements of involuntary manslaughter; he was convicted of voluntary
manslaughter and not second degree murder or involuntary manslaughter. On
appeal, he is allowed to complain of the result, because the result was not
necessarily favorable to his interests: although he could have been convicted of
second degree murder instead of voluntary manslaughter, he could also have been
convicted of involuntary manslaughter.
Over a century ago, we held that a "defendant cannot complain where the
determination of his case was more favorable to him than the evidence warranted."
(People v. Muhlner (1896) 115 Cal. 303, 306, 47 P. 128.)

But neither before nor since had we ever even suggested that a defendant could not
complain where the determination might have been less favorable. The plurality
are wrong to do so now.[3]

For the reasons stated above, I would affirm the judgment of the Court of Appeal.

WERDEGAR, J., concurs.

Dissenting Opinion by KENNARD, J.

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 645*645 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 first address defendant's contention that his voluntary manslaughter conviction is

constitutionally defective because on the evidence at trial a 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; see also
Jackson v. Virginia (1979) 443 U.S. 307, 315-319, 99 S.Ct. 2781, 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 [`express malice and an
intent unlawfully to kill are one and the same'], 1115 [2 Cal. Rptr.2d 364, 820 P.2d
588]; 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 646*646 one of these mental states
is present, however, malice is nonetheless absent if in 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, 77
Cal.Rptr.2d 870, 960 P.2d 1094 (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. 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, 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. 2310 ["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 647*647 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, 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 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, 77 Cal.Rptr.2d
870, 960 P.2d 1094.) 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, 77
Cal.Rptr.2d 870, 960 P.2d 1094.) 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. 648*648 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.

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, 77
Cal.Rptr.2d 870, 960 P.2d 1094, 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.

[1] All statutory references are to the Penal Code.

[2] Except as specifically noted in our subsequent discussion, we are not called
upon to, and do not, decide whether the trial court's instructions were correct. It is
unnecessary to resolve in this case whether provocation/heat of passion or intent to
kill are "elements" of voluntary manslaughter, whether involuntary manslaughter
may be found in circumstances other than those specifically described in section
192, or whether manslaughter in any of its forms is an offense necessarily included
in murder. We express no opinion on any of these questions.

[3] Defendant was born in Burma (Myanmar) where he lived until he was grown
and married. He then moved to Taiwan, where he lived for 10 years before coming
to the United States. He and his wife worked for several years to save enough
money to bring their two daughters to the United States in 1989. Burmese is
defendant's native language. He also speaks the Toishan dialect, which is similar to
Cantonese, and Mandarin. At trial an interpreter translated the proceedings from
English to Mandarin and Mandarin to English.

The trial of this matter did not commence until January 1995, as defendant had
been found incompetent to stand trial.

[4] The People relied on the presence of blood on the empty cognac bottle for an
argument that defendant consumed some alcohol after the shooting. Mary testified,
however, that defendant had nothing to drink after the shot was fired. It appears
that defendant consumed most of the 750-milliliter bottle himself during a period
of less than two hours.

[5] Section 417, subdivision (a)(2): "Every person who, except in self-defense, in
the presence of any other person, draws or exhibits any firearm, whether loaded or
unloaded, in a rude, angry, or threatening manner, or who in any manner,
unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor...."

[6] The heat of passion aroused by "sudden quarrel" or "mutual combat" form of
voluntary manslaughter is not implicated here. A defendant who kills during the
mutual combat contemplated by this type of voluntary manslaughter may not take
undue advantage. (People v. Sanchez (1864) 24 Cal. 17, 27.) Not only had
defendant broken off the mutual pushing and shoving with his wife prior to the
homicide, but when it resumed, his use of the gun was necessarily an undue
advantage. (See also § 195: "Homicide is excusable in the following cases: [¶] ...
[¶] 2. When committed by accident and misfortune, in the heat of passion, upon
any sudden and sufficient provocation, or upon a sudden combat, when no undue
advantage is taken, nor any dangerous weapon used, and when the killing is not
done in a cruel or unusual manner.")

[7] The three instructions told the jury: (1) "The crime of murder second requires
the specific intent to unlawfully kill another human being with malice.
"The crime of voluntary manslaughter requires the specific intent to kill another
human being."

(2) "Every person who unlawfully kills another human being without malice
aforethought, but with an intent to kill, is guilty of voluntary manslaughter in
violation of section 192."

(3) "In order to prove such crime, each of the following elements must be proved:
One, a human being was killed; Two the killing was unlawful; and Three, the
killing was done with intent to kill."

[1] CALJIC No. 8.50 is based on the United States Supreme Court's decision in
Mullaney v. Wilbur (1975) 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508
(Mullaney). (See Com. to CALJIC No. 8.50 (6th ed.1996) p. 437.) In Mullaney, the
high court held that "the Due Process Clause requires the prosecution to prove
beyond a reasonable doubt the absence of the heat of passion on sudden
provocation when the issue is properly presented in a homicide case." (421 U.S. at
p. 704, 95 S.Ct. 1881.) This court has yet to address whether the Mullaney holding
governs California's statutory scheme proscribing unlawful homicides. (See
Breverman, supra, 19 Cal.4th at p. 170, fn. 19, 77 Cal.Rptr.2d 870, 960 P.2d 1094
[declining to address the issue]; see also id. at pp. 201-202, fn. 4, 77 Cal.Rptr.2d
870, 960 P.2d 1094 (dis. opn. of Brown, J.) [same].) I express no opinion on that
question here. For the present purposes, it is sufficient to note that the instruction
requiring the prosecution to negate heat of passion beyond a reasonable doubt
inured to defendant's benefit.

[2] Defendant's daughter testified that she saw her parents arguing and pushing
each other, but that she could not hear what they were saying.

[3] The plurality cites People v. Williams (1969) 71 Cal.2d 614, 624, 79 Cal.Rptr.
65, 456 P.2d 633 (Williams), for the proposition that "[a]dequate provocation and
heat of passion must be affirmatively demonstrated." (Plur. opn., ante, 82 Cal.
Rptr.2d at p. 632, 971 P.2d at p. 1008.) This proposition is based on Williams's
statement that "[m]alice is presumed and the burden is on [defendant] `to raise a
reasonable doubt in the minds of the jurors that malice was present.' [Citations.]"
(Williams, supra, 71 Cal.2d at p. 624, 79 Cal.Rptr. 65, 456 P.2d 633.) Similarly,
Justice Mosk's dissenting opinion cites Williams and other decisions of this court
for the proposition that provocation is an element of voluntary manslaughter. (See
dis. opn. of Mosk, J., post, 82 Cal.Rptr.2d at p. 642, fn. 2, 971 P.2d at p. 1018, fn.
2.) We have yet to reconcile these decisions with the United States Supreme
Court's decision in Mullaney. (See ante, fn. 1.)

[4] Having concluded that sua sponte instructions were required, the plurality goes
on to deem the failure to so instruct harmless. (Plur. opn., ante, 82 Cal.Rptr.2d at
pp. 632-634, 971 P.2d at pp. 1008-1010.) The plurality's harmless error analysis is
based primarily on the fact the jury convicted defendant of voluntary
manslaughter, a greater offense of involuntary manslaughter. (See id. 82
Cal.Rptr.2d at pp. 633-634, 971 P.2d at pp. 1009-1010 ["The jury had been
instructed three times that it must find intent to kill in order to return a verdict of
voluntary manslaughter. The evidence supported such a finding. We conclude on
that basis that the error in failing to instruct on misdemeanor manslaughter was not
prejudicial." (Fn.omitted.)].) In other words, the failure to instruct on the lesser
included offense was harmless because the jury convicted defendant of a greater
offense. Once again, "I wonder why, if the sua sponte instruction rule is as
important as some of our prior cases seem to say, we have now made the failure to
instruct on lesser included offenses all but harmless per se. [Citation.]"
(Breverman, supra, 19 Cal.4th at p. 195, fn. 1, 77 Cal.Rptr.2d 870, 960 P.2d 1094
(dis. opn. of Brown, J.).)

[1] As in People v. Breverman (1998) 19 Cal.4th 142, 77 Cal.Rptr.2d 870, 960

P.2d 1094, I must again "decline to consider, in detail and in depth, the relationship
between murder and manslaughter...." (Id. at p. 184, fn. 1, 77 Cal. Rptr.2d 870, 960
P.2d 1094 (dis. opn. of Mosk, J.).) Although the issue is indeed implicated here, it
is not adequately presented. Its resolution will depend on answers to questions such
as these: Is malice aforethought "negate[d]" by provocation? (People v. Saille
(1991) 54 Cal.3d 1103, 1114, 2 Cal.Rptr.2d 364, 820 P.2d 588.) Or is it simply
defined so as to exclude it from its scope? (See Pen.Code, § 188 [defining malice
aforethought in its express form as an intent to kill that is "deliberate," i.e., not
arising upon provocation; similarly defining malice aforethought in its implied
form, in pertinent part, as a mental state not arising upon provocation].) Is
manslaughter an unlawful killing without malice aforethought in the sense of one
without any mental state? Or is it an unlawful killing with some mental state? If so,
what mental state? How, if at all, is it related to malice aforethought? The answers
to such questions will allow us to rationalize the law in this area. We shall no
longer be compelled to treat voluntary manslaughter as a "lesser included offense"
of murder (see cone. opn. of Brown, J., ante, 82 Cal.Rptr.2d at pp. 1012-1013, 971
P.2d at pp. 636-637), even though, as commonly understood, it is a "lesser
including offense" (People v. Breverman, supra, 19 Cal.4th at p. 189, fn. 4, 77
Cal.Rptr.2d 870, 960 P.2d 1094, italics in original (dis. opn. of Kennard, J.);
accord, id. at p. 183, 77 Cal.Rptr.2d 870, 960 P.2d 1094 (dis. opn. of Mosk, J.)).
Neither shall we any longer be compelled to speak of murder's unlawful-killing-
with-malice-aforethought and volunt ary manslaughter's unlawful-killing-without-
malice-aforethought as we must under the common understanding (see dis. opn. of
Kennard, J., post, 82 Cal.Rptr.2d at pp. 645-646, 971 P.2d at pp. 1021-1022) — the
former entailing both the presence of malice aforethought itself and the absence of
provocation, the latter entailing either the absence of malice aforethought itself or
the presence of provocation. For all this, however, we must await another day.

[2] The plurality say that "[i]t is unnecessary to resolve in this case" the issue
whether provocation is an element of voluntary manslaughter. (Plur. opn., ante, 82
Cal.Rptr.2d at p. 627, fn. 2, 971 P.2d at p. 1003, fn. 2.) True. The question has
already been answered — in the affirmative. (E.g., People v. Jackson, supra, 28
Cal.3d at p. 305, 168 Cal.Rptr. 603, 618 P.2d 149 (plur.opn.); People v. Rhinehart,
supra, 9 Cal.3d at p. 154, 107 Cal.Rptr. 34, 507 P.2d 642; People v. Williams,
supra, 71 Cal.2d at p. 624, 79 Cal.Rptr. 65, 456 P.2d 633; People v. Morse, supra,
70 Cal.2d at p. 734;, 76 Cal.Rptr. 391, 452 P.2d 607 1 Witkin & Epstein,
Cal.Criminal Law, supra, Crimes Against the Person, § 512, p. 579.)

The plurality similarly say that it is unnecessary to resolve in this case the issue
whether the element of provocation was supported by sufficient evidence. Not true.
This question too must be answered — in the negative. The plurality all but
concede the point.

[3] Because of the result that I reach, I need not, and do not, proceed to determine
whether the superior court erred reversibly when it instructed on involuntary
manslaughter only as a result of criminal negligence and not also in the course of a
misdemeanor. In concluding against reversal, the plurality claim, in substance, that
the superior court's instructions did not exclude involuntary manslaughter in the
course of a misdemeanor as a matter of law. Perhaps so. But they simply did not
include it as a matter of fact. Indeed, to the jury, made up as it was of laypersons,
they must likely have suggested the opposite. For, by stating that involuntary
manslaughter covers an unlawful killing as a result of criminal negligence in the
form of the commission, "without due caution and circumspection," of an
"ordinarily lawful" act that "involves a high degree of risk of death or great bodily
harm" (italics added), they implied that some even more serious offense covers an
unlawful killing in the course of a misdemeanor, which, by definition, is never a
lawful act, "ordinarily" or otherwise.
[1] 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).)

[2] "In order to prove such crime [of voluntary manslaughter], each of the
following elements must be proved: [¶] 1. A human being was killed, [¶] 2. The
killing was unlawful, and, [¶] 3. The killing was done with the intent to kill."
(CALJIC No. 8.40, supra.)

[3] "If you are satisfied beyond a reasonable doubt that the killing was unlawful
but you have a reasonable doubt whether the crime is murder or manslaughter, you
must give the defendant the benefit of such doubt and find it to be manslaughter
rather than murder." (CALJIC No. 8.72, supra.)

[4] 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.
 96 Cal.Rptr.2d 451 (2000)

23 Cal.4th 82

999 P.2d 675

The PEOPLE, Plaintiff and Respondent,
v.
George John BLAKELEY, Defendant and Appellant.
No. S062453.

Supreme Court of California.

June 2, 2000.
Rehearing Denied July 26, 2000.

452*452 Carol Strickman, Oakland, under appointment by the Supreme Court, for
Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief
Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Joan
Killeen and Raymond A. Cardozo, Deputy Attorneys General, for Plaintiff and
Respondent.

KENNARD, J.

In the companion case of People v. Lasko (2000) 23 Cal.4th 101, 96 Cal. Rptr.2d
441, 999 P.2d 666, we hold that a defendant who, with conscious disregard for life
and the knowledge that such conduct endangers the life of another, unintentionally
but unlawfully kills in a sudden quarrel or the heat of passion is guilty only of
voluntary manslaughter rather than murder. Here, we hold in a case of first
impression that voluntary manslaughter is also committed when a defendant, acting
453*453 with conscious disregard for life and the knowledge that the conduct is
life-endangering, unintentionally but unlawfully kills while having an unreasonable
but good faith belief in the need to act in self-defense.

On October 25, 1994, defendant George John Blakeley and his friend, David
Fraire, spent the early afternoon drinking brandy in a park in Vallejo, California.
They then went to defendant's home. Also there were Steven Blakeley (defendant's
brother), Tony Santiago, and Lionel Vallo (a friend of Santiago's). Fraire passed
around bottles of beer, and Vallo bought $20 worth of methamphetamine from
defendant.

Vallo, who had been drinking, asked about the quality of the methamphetamine,
saying that some methamphetamine he had recently bought from Santiago had
been "bunk." Santiago told Vallo, "fuck you," and Vallo replied, "fuck you."
Defendant said to both Santiago and Vallo, "shut the fuck up"; Vallo told
defendant, "you shut the fuck up."

Defendant told Vallo to leave the house. Vallo, who was six feet tall and weighed
205 pounds, swung a beer bottle at defendant, who was five feet five inches tall
and weighed 140 pounds, but missed. Defendant then hit Vallo in the head with an
unopened bottle of beer. The bottle shattered, cutting Vallo's cheek. After throwing
a beer bottle at defendant, but missing him, Vallo charged at defendant. Defendant
drew a large knife from a sheath on his belt and a struggle ensued. Santiago pulled
Vallo off defendant. Vallo was bleeding heavily from a stab wound to the chest.
Fraire told defendant "let's go," and defendant, weeping, drove Fraire home.

After telling his friend Vallo, "You dying, ain't nothing I could do, you got it to the
heart," Santiago asked Steven Blakeley (who had been out of the room during the
fight) to "call 911" and then left. The police and paramedics soon arrived but were
unable to save Vallo, who died shortly thereafter from a single stab wound to the
heart. Defendant fled, eventually turning up at his uncle's home in San Bernardino.
His uncle called the police.

At trial, eyewitness accounts of the stabbing differed. Vallo's friend Santiago

testified defendant had made a motion "like an uppercut" with the knife as Vallo
charged him, and Vallo almost immediately went limp, falling on top of defendant.
Fraire, defendant's friend, testified that after Vallo attacked defendant the two
struggled for "half a minute or so"; he did not see defendant stab Vallo. Defendant,
who testified on his own behalf, claimed he drew his knife to defend himself when
Vallo charged him, that the two of them fought and went down on the floor, and
that Vallo apparently impaled himself on the knife during the struggle. He did not
realize Vallo had been stabbed until after the fight was over.

The trial court instructed the jury on the charged crime of murder as well as the
lesser included offenses of voluntary and involuntary manslaughter. As to
voluntary manslaughter, the trial court explained: "Every person who unlawfully
kills another human being without malice aforethought but with an intent to kill is
guilty of voluntary manslaughter.... There is no malice aforethought if the killing
occurred in the honest but unreasonable belief in the necessity to defend oneself
against imminent peril to life or great bodily injury." (Italics added.) The court
refused to give defendant's requested instruction that a killing is involuntary
manslaughter when the killer, acting in an unreasonable but good faith belief in the
necessity of self-defense, unintentionally causes the victim's death.[1] Instead, the
454*454 court gave the jury CALJIC No. 8.45, the standard instruction on
involuntary manslaughter.[2] The jury convicted defendant of voluntary
manslaughter.

The Court of Appeal affirmed the conviction. The court reasoned: "[Unreasonable
self-defense] has no special bearing on the crime of involuntary manslaughter. It
neither allows a conviction of this crime, nor prevents one." Because "[t]here was
no instruction ... that prevented the jury from considering involuntary
manslaughter," the Court of Appeal said, the trial court did not have to give
defendant's requested instruction. We granted review.

II

As we did in the companion case of People v. Lasko, supra, 23 Cal.4th 101, 96

Cal.Rptr.2d 441, 999 P.2d 666, we begin our analysis by exploring the differences
between murder and the lesser offense of manslaughter. Murder is the unlawful
killing of a human being with malice aforethought. (Pen.Code, § 187, subd. (a).)[3]
Malice may be either express or implied. It is express when the defendant
manifests "a deliberate intention unlawfully to take away the life of a fellow
creature." (§ 188.) It is implied "when no considerable provocation appears, or
when the circumstances attending the killing show an abandoned and malignant
heart." (Ibid.) This statutory definition of implied malice, we have said, "has never
proved of much assistance in defining the concept in concrete terms" (People v.
Dellinger (1989) 49 Cal.3d 1212, 1217, 264 Cal.Rptr. 841, 783 P.2d 200), and
juries should be instructed that malice is implied "when the killing results from an
intentional act, the natural consequences of which are dangerous to life, which act
was deliberately performed by a person who knows that his conduct endangers the
life of another and who acts with conscious disregard for life" (id. at p. 1215, 264
Cal.Rptr. 841, 783 P.2d 200). As in the companion case of People v. Lasko, for
convenience we shall describe this mental state as "conscious disregard for life."

Manslaughter is "the unlawful killing of a human being without malice." (§ 192.)

A defendant lacks malice and is guilty of voluntary manslaughter in "limited,
explicitly defined circumstances: either when the defendant acts in a `sudden
quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in
`unreasonable self-defense' — the unreasonable but good faith belief in having to
act in self-defense (see In re Christian S. (1994) 7 Cal.4th 768 [30 Cal.Rptr.2d 33,
872 P.2d 574]; People v. Flannel [(1979)] 25 Cal.3d 668 [160 Cal.Rptr. 84, 603
P.2d 1])." (People v. Barton (1995) 12 Cal.4th 186, 199, 47 Cal. Rptr.2d 569, 906
P.2d 531.) At issue here is the second type of voluntary manslaughter: when a
defendant kills in unreasonable self-defense. (The other form of voluntary
manslaughter — when the defendant kills in a sudden quarrel or heat of passion
455*455 — is addressed in the companion case of People v. Lasko, supra, 23
Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666.)

A person who intentionally kills in unreasonable self-defense lacks malice and is

guilty only of voluntary manslaughter, not murder. (People v. Barton, supra, 12
Cal.4th at p. 199, 47 Cal.Rptr.2d 569, 906 P.2d 531; see also People v. Breverman
(1998) 19 Cal.4th 142, 154, 77 Cal.Rptr.2d 870, 960 P.2d 1094; People v. Saille
(1991) 54 Cal.3d 1103, 1107, fn. 1, 2 Cal.Rptr.2d 364, 820 P.2d 588; People v.
Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1.) But what offense is
committed when a person, acting with a conscious disregard for life,
unintentionally kills a human being, but the killing occurs in unreasonable self-
defense? Is the killer guilty of murder, voluntary manslaughter, or involuntary
manslaughter?

We have in the past said that in these circumstances the killer is not guilty of
murder: "[I]mplied malice is shown when `the defendant for a base, antisocial
motive and with wanton disregard for human life, does an act that involves a high
degree of probability that it will result in death.' ... A defendant who acts with the
requisite actual belief in the necessity for self-defense does not act with the base
motive required for implied malice, i.e., with `an abandoned and malignant heart.'
[Citation.] A contrary conclusion, namely, that imperfect self-defense applies only
in cases of express, but not implied, malice would lead to a totally anomalous and
absurd result, in which a defendant, who unreasonably believes that his life is in
imminent danger, would be guilty only of manslaughter if he acts with the intent to
kill his perceived assailant, but would be guilty of murder if he does not intend to
kill, but only to seriously injure, the assailant. There is no authority to support such
an incongruous rule." (In re Christian S., supra, 7 Cal.4th at p. 780, fn. 4, 30 Cal.
Rptr.2d 33, 872 P.2d 574, some italics omitted.)

Defendant here asserts that one who unintentionally and unlawfully kills in
unreasonable self-defense is guilty only of involuntary manslaughter. We have
never before decided whether in these circumstances a defendant is guilty of
voluntary or involuntary manslaughter. As we shall explain, we conclude that
when a defendant, acting with conscious disregard for life, unintentionally kills in
unreasonable self-defense, the killing is voluntary, not involuntary, manslaughter.

Defendant's claim that an unintentional killing in unreasonable self-defense is

involuntary manslaughter is based on the assumption that intent to kill is a
necessary element of voluntary manslaughter. As he points out, we have said so in
a number of cases. (See, e.g., People v. Hawkins (1995) 10 Cal.4th 920, 958, 42
Cal.Rptr.2d 636, 897 P.2d 574; People v. Burroughs (1984) 35 Cal.3d 824, 834, fn.
8, 201 Cal.Rptr. 319, 678 P.2d 894; People v. Ray (1975) 14 Cal.3d 20, 28, 120
Cal.Rptr. 377, 533 P.2d 1017; People v. Sedeno (1974) 10 Cal.3d 703, 720, 112
Cal.Rptr. 1, 518 P.2d 913; People v. Forbs (1965) 62 Cal.2d 847, 852, 44 Cal.Rptr.
753, 402 P.2d 825; People v. Gorshen (1959) 51 Cal.2d 716, 732-733, 336 P.2d
492; People v. Bridgehouse (1956) 47 Cal.2d 406, 413, 303 P.2d 1018.) Relying on
these cases, defendant argues that one who unintentionally kills in the exercise of
unreasonable self-defense cannot be guilty of voluntary manslaughter because
there is no intent to kill. Thus, he asserts, the only remaining possibility is that such
persons are guilty of involuntary manslaughter.

In the companion case of People v. Lasko, supra, 23 Cal.4th 101, 96 Cal.Rptr.2d

441, 999 P.2d 666, we pointed out that in each of these cases, the statement that
voluntary manslaughter requires an intent to kill was mere dictum, and incorrect.
As explained in Lasko, nothing in the language of subdivision (a) of section 192,
which defines voluntary manslaughter, limits its applicability to cases in which the
killer harbors an intent to kill. An unlawful 456*456 homicide committed with
malice is murder, whether or not the killer harbors the intent to kill; similarly, there
is no valid reason to distinguish between those killings that, absent unreasonable
self-defense, would be murder with express malice, and those killings that, absent
unreasonable self-defense, would be murder with implied malice.

Defendant invokes the well-established principle of statutory construction that

when the Legislature amends a statute without changing those portions of the
statute that have previously been construed by the courts, the Legislature is
presumed to have known of and to have acquiesced in the previous judicial
construction. (People v. Escobar (1992) 3 Cal.4th 740, 750-751, 12 Cal.Rptr.2d
586, 837 P.2d 1100; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d
1142, 1155-1156, 278 Cal.Rptr. 614, 805 P.2d 873; Marina Point, Ltd. v. Wolfson
(1982) 30 Cal.3d 721, 734, 180 Cal.Rptr. 496, 640 P.2d 115.) Defendant points out
that between 1945 and 1994 the Legislature has amended section 192 (defining
manslaughter) five times. He contends the Legislature's failure to alter this court's
"consistent interpretation that voluntary manslaughter requires the intent to kill and
involuntary manslaughter does not" shows the Legislature's acquiescence in that
interpretation.

We disagree. All of the five amendments to section 192 affect only subdivision (c)
of that section, which defines vehicular manslaughter. (See Stats. 1994, ch. 71, § 2;
Stats.1986, ch. 1106, § 3, p. 3881; Stats.1984, ch. 742, § 1, p. 2703; Stats.1983, ch.
937, § 1, p. 3387; Stats.1945, ch. 1006, § 1, p. 1942.) The subdivisions of section
192 that define voluntary and involuntary manslaughter have remained unchanged
since that section's enactment in 1872. We do not view the Legislature's
amendments to subdivision (c), which defines vehicular manslaughter, as
persuasive evidence that the Legislature intended to acquiesce in judicial decisions
construing subdivision (a), which defines voluntary manslaughter. (See People v.
Morante (1999) 20 Cal.4th 403, 429, 84 Cal.Rptr.2d 665, 975 P.2d 1071 [declining
to infer legislative acquiescence in decision construing one portion of a penal
statute from Legislature's amendment of unrelated portion]; People v. Escobar,
supra, 3 Cal.4th at pp. 750-751, 12 Cal.Rptr.2d 586, 837 P.2d 1100 [same].)
Moreover, as we explain in the companion case of People v. Lasko, supra, 23
Cal.4th at page 101, 96 Cal.Rptr.2d 441, 999 P.2d 666, in each of the decisions in
question the observation that intent to kill is an element of voluntary manslaughter
was dictum.

Defendant also relies on two decisions by the Court of Appeal, People v. Glenn
(1991) 229 Cal.App.3d 1461, 280 Cal.Rptr. 609 and People v. Welch (1982) 137
Cal. App.3d 834, 187 Cal.Rptr. 511. In Glenn, the defendant testified he intended
to stab but not to kill the victim. In reversing the defendant's conviction for
voluntary manslaughter, because the trial court had failed to instruct the jury on the
lesser included offense of involuntary manslaughter, the Court of Appeal stated:
"A person who kills another in the honest but unreasonable belief in the necessity
to defend against imminent peril to life or great bodily injury may be guilty of
voluntary or involuntary manslaughter depending on the existence of an intent to
kill." (People v. Glenn, supra, 229 Cal.App.3d at p. 1467, 280 Cal.Rptr. 609.)

Similarly, in Welch the defendant denied intending to kill the victim, who died of
gunshot wounds. The Court of Appeal reversed the defendant's conviction for
voluntary manslaughter because of the trial court's failure to instruct the jury on the
lesser included offense of involuntary manslaughter. The Court of Appeal
explained: "The basic distinction in California law between voluntary and
involuntary manslaughter is that voluntary manslaughter requires an intent to kill
whereas involuntary manslaughter does not. [¶] In the 457*457 instant case there is
substantial evidence from which a jury could conclude that the defendant did not
intend to kill [the victim] when he discharged his weapon." (People v. Welch,
supra, 137 Cal.App.3d at pp. 839-840, 187 Cal.Rptr. 511; see also People v. Dixon
(1995) 32 Cal.App.4th 1547, 1557, 38 Cal.Rptr.2d 859, fn. 5 ["[imperfect self-
defense could, depending on the existence of an intent to kill, result in a verdict of
voluntary or involuntary manslaughter."]; People v. Ceja (1994) 26 Cal.App.4th
78, 86, 31 Cal.Rptr.2d 475 ["`A person who kills another in the honest but
unreasonable belief in the necessity to defend against imminent peril to life or great
bodily injury may be guilty of voluntary or involuntary manslaughter depending on
the existence of an intent to kill'"].)

In neither People v. Glenn, supra, 229 Cal.App.3d 1461, 280 Cal.Rptr. 609, nor
People v. Welch, supra, 137 Cal.App.3d 834, 187 Cal.Rptr. 511, did the Court of
Appeal engage in any analysis or cite any authority in support of its conclusion that
an unintentional killing in unreasonable self-defense can only be involuntary
manslaughter. Thus, neither case is persuasive authority for the proposition that
intent to kill is necessary for a voluntary manslaughter conviction. For the reasons
given earlier, we conclude that when a defendant, acting with a conscious
disregard for life, unintentionally kills in unreasonable self-defense, the killing is
voluntary rather than involuntary manslaughter.

In his dissenting opinion in this case, Justice Mosk contends that a defendant who
kills in unreasonable self-defense may sometimes be guilty of involuntary
manslaughter. We have no quarrel with this view. We conclude only that a
defendant who, with the intent to kill or with conscious disregard for life,
unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter.

III

Does this holding apply retroactively to defendant's case? At oral argument, the
Attorney General acknowledged that retroactive application would be
unconstitutional. He is right, as we explain.

"A statute `"which makes more burdensome the punishment for a crime, after its
commission,"' violates article I, section 9, clause 3, of the United States
Constitution as an ex post facto determination of criminal liability [citations], as
well as its California counterpart, article I, section 9 of the state Constitution
[citation]. Correspondingly, an unforseeable judicial enlargement of a criminal
statute, applied retroactively, operates in the same manner as an ex post facto law."
(People v. Davis (1994) 7 Cal.4th 797, 811, 30 Cal.Rptr.2d 50, 872 P.2d 591; see
also People v. King (1993) 5 Cal.4th 59, 80, 19 Cal.Rptr.2d 233, 851 P.2d 27.)
Courts violate constitutional due process guarantees (U.S. Const., 5th and 14th
Amends.; Cal. Const., art. I, § 7) when they impose unexpected criminal penalties
by construing existing laws in a manner that the accused could not have foreseen at
the time of the alleged criminal conduct. (United States v. Lanier (1997) 520 U.S.
259, 266-267, 117 S.Ct. 1219, 137 L.Ed.2d 432; Marks v. United States (1977) 430
U.S. 188, 191-192, 97 S.Ct. 990, 51 L.Ed.2d 260; Bouie v. City of Columbia
(1964) 378 U.S. 347, 353, 84 S.Ct. 1697, 12 L.Ed.2d 894.)

Here, when defendant killed Vallo this court had not yet addressed the issue of
whether an unintentional killing in unreasonable self-defense is voluntary or
involuntary manslaughter. But three decisions by the Courts of Appeal in this state
held that such a killing was only involuntary manslaughter (People v. Ceja, supra,
26 Cal.App.4th 78, 31 Cal.Rptr.2d 475; People v. Glenn, supra, 229 Cal.App.3d
1461, 280 Cal.Rptr. 609; People v. Welch, supra, 137 Cal.App.3d 834, 187
Cal.Rptr. 511; see also People v. Clark (1982) 130 Cal.App.3d 371, 382, 181
Cal.Rptr. 682); no case held to the contrary. Thus, our decision today—that one
who, acting with conscious disregard for life, unintentionally 458*458 kills in
unreasonable self-defense is guilty of voluntary manslaughter rather than the less
serious crime of involuntary manslaughter—is an unforeseeable judicial
enlargement of the crime of voluntary manslaughter, and thus may not be applied
retroactively to defendant. (See People v. Davis, supra, 7 Cal.4th at p. 812, 30 Cal.
Rptr.2d 50, 872 P.2d 591 [retroactive application improper when this court
overturns consistent decisions by Courts of Appeal narrowly construing criminal
statute].)

The Attorney General insists, however, that the trial court did not have to grant
defendant's request to instruct the jury that an unintentional killing in unreasonable
self-defense was involuntary manslaughter. He points out that although the
decisions of the Courts of Appeal, which defendant cited and which we mentioned
in the preceding paragraph, hold that an unintentional killing in unreasonable self-
defense may constitute involuntary manslaughter, none of them expressly hold that
the trial court must, upon request, tailor its instruction on involuntary manslaughter
to include mention of an unintentional killing in unreasonable self-defense. We
disagree. The need for such a modification is implicit in the conclusion of the
Court of Appeal decisions in question that such a killing is involuntary
manslaughter. (See People v. Earp (1999) 20 Cal.4th 826, 886, 85 Cal.Rptr.2d 857,
978 P.2d 15 ["Upon request, a trial court must give jury instructions `that
"pinpoint[ ] the theory of the defense...."'"].)[4]
By contrast, the standard instruction on involuntary manslaughter the trial court
gave here did not explain to the jury that a defendant who commits an
unintentional killing in unreasonable self-defense is guilty of involuntary
manslaughter. As we mentioned earlier, that instruction stated a killing is
involuntary manslaughter if committed during "the commission of ... the offense of
[b]randishing a [w]eapon; or ... [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." An unintentional killing in unreasonable self-defense,
committed in the midst of a fight, does not fall within this definition. We therefore
conclude the trial court erred by failing to instruct the jury that an unintentional
killing in unreasonable self-defense is involuntary manslaughter.

IV

Did defendant suffer prejudice from the trial court's failure to instruct the jury that
an unintentional killing in unreasonable self-defense is involuntary manslaughter?
A majority of this court recently held that when, as in this case, a trial court
violates state law by failing to properly instruct the jury on a lesser included
offense, the following test applies: "[I]n 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, 299 P.2d 243].
A conviction of the charged offense may be reversed in consequence of this form
of error only if, `after an examination of the entire cause, including the evidence'
(Cal. Const., art. VI, § 13), it appears `reasonably probable' the defendant would
have obtained a more favorable outcome had the error not occurred (Watson,
supra, 46 Cal.2d 818, 836 [299 P.2d 243])." (People v. Breverman, supra, 19
Cal.4th 142, 178, 77 Cal. Rptr.2d 870, 960 P.2d 1094.)

Here, although the trial court did not instruct the jury that an unintentional killing
in unreasonable self-defense is involuntary manslaughter, it did instruct on these
two theories of involuntary manslaughter, neither of which requires an intent to
kill: that an unlawful killing is involuntary 459*459 manslaughter if it occurs
during the offense of brandishing a weapon or in the commission of an ordinarily
lawful act which involves a high degree of risk of death or great bodily harm,
without due caution and circumspection. The court also gave CALJIC No. 8.40,
the standard instruction defining the elements of voluntary manslaughter, which
said that one of the elements of voluntary manslaughter that "must be proved" is
that the killing "was done with the intent to kill."[5] Thus, if the jury had concluded
that defendant had unintentionally killed Vallo in unreasonable self-defense, it
most likely would not have convicted defendant of voluntary manslaughter, which,
it was told, requires an intent to kill.

In their closing arguments to the jury, both the prosecutor and defense counsel told
the jury that an unintentional killing in unreasonable self-defense was involuntary,
not voluntary, manslaughter. The prosecutor said: "Then [the trial court] described
to you a middle ground, which is sometimes called imperfect self-defense, but as
presented to you was honest and reasonable, reasonable, self-defense. This is a
situation where the killer thinks he's in danger of death or great bodily injury, but
he's unreasonable in that. And that leads to the manslaughter alternative which is
either voluntary if it's an intentional killing or involuntary if it's not." (Italics
added.) Defense counsel appeared to make the same point: "Did [defendant] have
an intent to kill? That's the difference between voluntary and involuntary
manslaughter, and the answer there is you have to look at the timing of this and the
intoxication of [defendant]. And I submit to you that there was no intent other than
the intent to save his life." (Italics added.)

People v. Watson, supra, 46 Cal.2d at page 836, 299 P.2d 243, requires a
reasonable probability, not a mere theoretical possibility, that the instructional
error affected the outcome of the trial. For the reasons given above, we do not find
such a reasonable probability here.

DISPOSITION

The judgment of the Court of Appeal is affirmed.

GEORGE, C.J., BAXTER, J., WERDEGAR, J., CHIN, J., and BROWN, J.,
concur.

Dissenting Opinion by MOSK, J.

I dissent.

I address an "important" question (People v. Breverman (1998) 19 Cal.4th 142,

184, fn. 1, 77 Cal.Rptr.2d 870, 960 P.2d 1094 (dis. opn. of Mosk, J.)) that I had
heretofore "decline[d] to consider ... in detail and in depth" (19 Cal.4th at p. 184,
fn. 1, 77 Cal.Rptr.2d 870, 960 P.2d 1094; accord, People v. Lee (1999) 20 Cal.4th
47, 70, fn. 1, 82 Cal.Rptr.2d 625, 971 P.2d 1001 (dis. opn. of Mosk, J.)), namely,
the "relationship between" the crimes of "murder and manslaughter" (People v.
Breverman, supra, 19 Cal.4th at p. 184, fn. 1, 77 Cal. Rptr.2d 870, 960 P.2d 1094
(dis. opn. of Mosk, J.); accord, People v. Lee, supra, 20 Cal.4th at p. 70, fn. 1, 82
Cal.Rptr.2d 625, 971 P.2d 1001 (dis. opn. of Mosk, J.)).

A crime generally comprises elements of mental state and also conduct or

consequences or both.

Murder is defined by statute as the "unlawful killing of a human being ... with
malice aforethought." (Pen.Code, § 187, subd. (a).) A killing is unlawful when it is
not justified (see id., §§ 196-198.5, 199), as by self-defense (id., §§ 197-198.5), or
excused (see id., §§ 195, 199), as by accident or misfortune (id., § 195). (People v.
460*460 Frye (1992) 7 Cal.App.4th 1148, 1155, 10 Cal.Rptr.2d 217; see People v.
Thompson (2000) 79 Cal.App.4th 40, 50, 93 Cal. Rptr.2d 803.)[1] Malice
aforethought "may be express or implied." (Pen.Code, § 188.) It is "express" "when
there is manifested a deliberate intention unlawfully to take away the life of a
fellow creature" (ibid.) — when, as we held in In re Christian S. (1994) 7 Cal.4th
768, 778, 30 Cal.Rptr.2d 33, 872 P.2d 574, there is a deliberate and "wrongful"
intent to kill. It is "implied" "when no considerable provocation appears, or when
the circumstances attending the killing show an abandoned and malignant heart"
(Pen.Code, § 188) — when, as we put it in People v. Watson (1981) 30 Cal.3d 290,
300, 179 Cal.Rptr. 43, 637 P.2d 279, there is a "wanton disregard for human life."

Manslaughter is defined by statute as the "unlawful killing of a human being

without malice [aforethought]." (Pen. Code, § 192.) It is "[voluntary" when it is
perpetrated "upon a sudden quarrel or heat of passion" (id., § 192, subd. (a))
following provocation adequate to arouse a reasonable person (e.g., People v.
Valentine (1946) 28 Cal.2d 121, 136-144, 169 P.2d 1) — briefly, when it is
perpetrated upon "adequate provocation" (e.g., People v. Rhinehart (1973) 9
Cal.3d 139, 154, 107 Cal.Rptr. 34, 507 P.2d 642, disapproved on another point,
People v. Bolton (1979) 23 Cal.3d 208, 213-214, 152 Cal.Rptr. 141, 589 P.2d 396;
People v. Williams (1969) 71 Cal.2d 614, 624, 79 Cal.Rptr. 65, 456 P.2d 633) or,
more briefly still, upon "provocation" (e.g., People v. Jackson (1980) 28 Cal.3d
264, 305, 168 Cal.Rptr. 603, 618 P.2d 149 (plur. opn. of Richardson, J.); People v.
Morse (1969) 70 Cal.2d 711, 734;, 76 Cal.Rptr. 391, 452 P.2d 6071 Witkin &
Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, § 512, p.
579). It is "[i]nvoluntary" when it is perpetrated (other than in the driving of a
vehicle) either "in the commission of an unlawful act, not amounting to a felony"
(Pen.Code, § 192, subd. (b)), or "in the commission of a lawful act which might
produce death, in an unlawful manner" (ibid.), or "without due caution and
circumspection" (ibid.).
Thus, murder includes among its elements malice aforethought, which is the
requisite mental state.

By contrast, in both its voluntary and involuntary forms, manslaughter excludes

malice aforethought.

461*461 For involuntary manslaughter, the requisite mental state is clear from its
definition. It is the state of mind that belongs to any underlying nonfelonious
"unlawful act" (Pen.Code, § 192, subd. (b)), or that attends the "commission," "in
an unlawful manner," "of a lawful act which might produce death" (ibid.), or that is
indicated by the absence of "due caution and circumspection" (ibid.).

For voluntary manslaughter, however, the requisite mental state is not clear from
its definition. But it becomes so when voluntary manslaughter is considered in
conjunction with murder: It is the state of mind that amounts in fact to malice
aforethought, but is deemed in law not to because of provocation. (See People v.
Doyell (1874) 48 Cal. 85, 96 [speaking of express malice aforethought, but without
limitation thereto]; People v. Kernaghan (1887) 72 Cal. 609, 613, 14 P. 566
[following Doyell]; People v. Elmore (1914) 167 Cal. 205, 210, 138 P. 989 [same];
see also People v. Freel (1874) 48 Cal. 436, 437 [similar to Doyell].) The premise
is that malice aforethought and provocation are always compatible. It is altogether
sound. It is true that, in any given case, the actor may or may not be provoked
when he forms a deliberate and wrongful intent to kill or proceeds with a wanton
disregard for human life. But it is also true that in no case is he disabled by
provocation from forming the indicated intent or proceeding with the indicated
disregard.

It follows that provocation may be treated as an "element" of voluntary

manslaughter, but only — against my former view (see People v. Lee, supra, 20
Cal.4th at p. 75, fn. 2, 82 Cal.Rptr.2d 625, 971 P.2d 1001 (dis. opn. of Mosk, J.))
— when voluntary manslaughter is considered in conjunction with murder. Which
is to say, it is only then that non provocation may be treated as an "element" of
murder, or more precisely, a "sub-element" of malice aforethought. (Cf. Pen.Code,
§ 188 [stating that malice aforethought is "implied" "when no considerable
provocation appears"].) For provocation can have meaning and effect only when it
can reduce malice aforethought to a less culpable mental state.

That nonprovocation may thus be treated as an "element" of murder does not make
it one in any proper sense. An element is a legal requirement of a crime.
Nonprovocation is not such. Rather, it is a fact that may or may be not raised by
the particular evidence admitted at any individual trial. Provocation does not quite
function as an affirmative defense to murder, in the sense of constituting a fact that
is separate and independent from its elements. But it functions not dissimilarly,
albeit with the prosecution bearing the burden of disproof (People v. Bloyd (1987)
43 Cal.3d 333, 349, 233 Cal.Rptr. 368, 729 P.2d 802).

To my mind, the so-called doctrine of imperfect self-defense — which, as we held

in Christian S. and People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603
P.2d 1, comes into play when an actor "actually, but unreasonably, believe[s] he
[is] in imminent danger of death or great bodily injury" (In re Christian S., supra, 7
Cal.4th at p. 771, 30 Cal.Rptr.2d 33, 872 P.2d 574, italics omitted; accord, People
v. Flannel, supra, 25 Cal.3d at pp. 672, 674-680, 160 Cal.Rptr. 84, 603 P.2d 1
(lead opn. of Tobriner, J.); id. at pp. 686-687, 160 Cal.Rptr. 84, 603 P.2d 1 (cone.
opn. of Richardson, J.)) — does not function like provocation.

Unlike provocation, the doctrine of imperfect self-defense does not find its origin
in the statutory definitions of murder and voluntary manslaughter. The fact is plain,
and calls for no elaboration. Hence, there is no warrant in statute for any assertion
that, for voluntary manslaughter, the requisite mental state is that which amounts in
fact to malice aforethought, but is deemed in law not to because of imperfect self-
defense.

Also unlike provocation, the doctrine of imperfect self-defense does not allow the
462*462 premise that malice aforethought and imperfect self-defense are always
compatible.

By its terms, the doctrine of imperfect self-defense, as we held in Christian S. and

Flannel, prohibits an actor's "convict[ion] of any "crime greater than voluntary
manslaughter." (In re Christian S., supra, 7 Cal.4th at p. 771, 30 Cal. Rptr.2d 33,
872 P.2d 574, italics added; see People v. Flannel, supra, 25 Cal.3d at pp. 672,
674-680, 160 Cal.Rptr. 84, 603 P.2d 1 (lead opn. of Tobriner, J.); id. at pp. 686-
687, 160 Cal.Rptr. 84, 603 P.2d 1 (cone, opn. of Richardson, J.).) It does not,
however, mandate his conviction of voluntary manslaughter itself. The reason is
easy to discern.

If the requisite mental state for voluntary manslaughter is a state of mind that
amounts in fact to malice aforethought, an actual, but unreasonable, belief in
imminent danger of death or great bodily injury may prove to be preclusive.

For an actor who entertains an actual, but unreasonable, belief in imminent danger
of death or great bodily injury may happen not to harbor malice aforethought
express in a deliberate and wrongful intent to kill. Deliberation or wrongfulness or
both may be lacking. To quote Flannel, which is categorical in this regard:
"[M]alice [aforethought]," including, of course, express malice aforethought,
"cannot coexist with such [a] ... belief...." (People v. Flannel, supra, 25 Cal.3d at p.
675, 160 Cal.Rptr. 84, 603 P.2d 1 (lead opn. of Tobriner, J.); see id. at pp. 686-
687,160 Cal.Rptr. 84, 603 P.2d 1 (cone. opn. of Richardson, J.).) To quote
Christian S., which is similarly categorical: A person "who acts with" an "actual
belief in the necessity for self-defense" does not act with the required wrongful
intent to kill because he "necessarily believes he is acting lawfully." (In re
Christian S., supra, 7 Cal.4th at pp. 778, 780, fn. 4, 30 Cal. Rptr.2d 33, 872 P.2d
574.) That an actor who entertains an actual, but unreasonable, belief in imminent
danger of death or great bodily injury may happen to possess a bare intent to kill is,
of course, not enough. Intent to kill simpliciter does not amount to express malice
aforethought, since it is neither deliberate nor wrongful. It scarcely needs mention
that intent to kill is not morally culpable in and of itself. In self-defense, it is at
least morally neutral. In defense of others, it is perhaps even morally praiseworthy.

Similarly, an actor who entertains an actual, but unreasonable, belief in imminent

danger of death or great bodily injury may happen not to harbor malice
aforethought implied in a wanton disregard for human life. Wantonness, at least,
may be lacking. To quote Flannel's categorical statement a second time: "[M]alice
[aforethought]," including, of course, implied malice aforethought, "cannot coexist
with such [a] ... belief...." (People v. Flannel, supra, 25 Cal.3d at p. 675, 160 Cal.
Rptr. 84, 603 P.2d 1 (lead opn. of Tobriner, J.); see id. at pp. 686-687, 160
Cal.Rptr. 84, 603 P.2d 1 (cone. opn. of Richardson, J.).) To quote Christian S.,
which is categorical as well: A person "who acts with" an "actual belief in the
necessity for self-defense does not act with the ... required" wantonness. (In re
Christian S., supra, 7 Cal.4th at p. 780, fn. 4, 30 Cal. Rptr.2d 33, 872 P.2d 574.)

That an actual, but unreasonable, belief in imminent danger of death or great

bodily injury may prove to be preclusive with respect to the mental state required
for voluntary manslaughter, namely, a state of mind that amounts in fact to malice
aforethought, leads to no untenable result. Surely, it does not grant any immunity
to any actor who commits an unlawful killing. For practically by definition, an
actor who entertains such a belief acts "without due caution and circumspection"
(Pen. Code, § 192, subd. (b)). Hence, if he is guilty of nothing else, he must be
guilty of involuntary manslaughter.

One might perhaps argue that an actor who entertains an actual, but unreasonable,
belief in imminent danger of death or 463*463 great bodily injury necessarily
possesses a mental state more culpable than the one indicated by the absence of
"due caution and circumspection" (Pen.Code, § 192, subd. (b)) required for
involuntary manslaughter. Such an argument would be dubious, inasmuch as the
absence of due caution and circumspection describes a state of mind at least
approaching recklessness (e.g., People v. Penny (1955) 44 Cal.2d 861, 879-880,
285 P.2d 926). It would also miss the mark. The mental state that voluntary
manslaughter requires is one that amounts in fact to malice aforethought. But both
Christian S. and Flannel make plain that an actual, but unreasonable, belief in
imminent danger of death or great bodily injury may prove to be preclusive. It does
not matter that an actor who entertained such a belief might have, or indeed would
have, harbored malice aforethought in its absence. What matters is that he did, in
fact, entertain such a belief, and did not, in fact, harbor malice aforethought.[2]

In the case at bar, the superior court erred by refusing to instruct the jury at
appellant's request to the effect that the doctrine of imperfect self-defense allowed
a verdict finding him guilty of involuntary manslaughter. It did so reversibly.
Reversal is required under People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d
243, when there is a "reasonable probabilit[y]" that the error contributed to the
outcome. There is such a reasonable probability when there is "merely a
reasonable chance, more than an abstract possibility," of an effect of this kind.
(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, 34
Cal.Rptr.2d 898, 882 P.2d 894, italics in original; see Aerojet-General Corp. v.
Transport Indemnity Co. (1997) 17 Cal.4th 38, 68, 70 Cal.Rptr.2d 118, 948 P.2d
909.) On my review of the record, which is far from univocal regarding the fight
between appellant and the victim including the striking of the fatal blow, I am
compelled to conclude that there is at least a reasonable chance that the superior
court's refusal to instruct the jury on the doctrine of imperfect self-defense and
involuntary manslaughter contributed to the jury's verdict finding appellant guilt of
voluntary manslaughter.

[1] Defendant's requested instruction read: "Every person who unlawfully kills a
human being without malice aforethought and without an intent to kill is guilty of
the crime of involuntary manslaughter in violation of Penal Code § 192(b). [¶] In
order to prove such crime, each of the following elements must be proved: [¶] 1. A
human being was killed; and [¶] 2. The killing was unlawful. [¶] A killing is
unlawful within the meaning of this instruction when the accused actually but
unreasonally believes in the necessity to defend himself and, having such mental
state, unintentionally causes the death of a human being."
[2] The court instructed the jury: "Every person who unlawfully kills a human
being without malice aforethought and without an intent to kill is guilty of the
crime of involuntary manslaughter in violation of Penal Code section 192(b). [¶] In
order to prove such crime, each of the following elements must be proved: [¶] 1. A
human being was killed, and [¶] 2. The killing was unlawful. [¶] A killing is
unlawful within the meaning of this instruction if it occurred: [¶] 1. During the
commission of a misdemeanor which is inherently dangerous to human life,
namely, the offense of [b]randishing a [w]eapon; or [¶] 2. In 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."

[3] All further statutory references are to the Penal Code.

[4] We express no view as to whether the trial court would have been required, in
the absence of a request from defendant, to instruct the jury that an unintentional
killing in unreasonable self-defense is involuntary manslaughter.

[5] As previously explained, in the companion case of People v. Lasko, supra, 23

Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666, we hold that voluntary
manslaughter does not require an intent to kill. Here, defendant does not contend
the trial court here erred by instructing the jury that intent to kill was required. That
error could not have harmed defendant, because it increased the prosecution's
evidentiary burden to prove defendant guilty of voluntary manslaughter.

[1] In subdivision (a) of section 189.5 of the Penal Code, whose predecessor was
section 1105 of the same code as originally enacted in 1872, it is stated that,
"[u]pon a trial for murder, the commission of the homicide by the defendant being
proved, the burden of proving circumstances ... that justify or excuse it ... devolves
upon the defendant, unless the proof on the part of the prosecution tends to show ...
that the defendant was justifiable or excusable." Contrary to appearances (People v.
Frye, supra, 7 Cal.App.4th at p. 1154, 10 Cal.Rptr.2d 217; but see People v.
Cardoza (1943) 57 Cal.App.2d 489, 494, 134 P.2d 877), the provision does not
impose on the defendant any burden of proof, of whatever quantum, as to
justification or excuse, but only a burden of producing evidence to raise a
reasonable doubt in the premises after the prosecution has itself produced evidence
that would support a finding beyond a reasonable doubt (People v. Gonzalez
(1990) 51 Cal.3d 1179, 1214-1215, 275 Cal.Rptr. 729, 800 P.2d 1159; see People
v. Deloney (1953) 41 Cal.2d 832, 841, 264 P.2d 532; People v. Comett (1948) 33
Cal.2d 33, 42-43, 198 P.2d 877; People v. Albertson (1944) 23 Cal.2d 550, 587,
145 P.2d 7; People v. Wells (1938) 10 Cal.2d 610, 621-623, 76 P.2d 493; People v.
Thompson, supra, 79 Cal.App.4th at p. 50, 93 Cal. Rptr.2d 803; People v. Frye,
supra, 7 Cal. App.4th at p. 1154, 10 Cal.Rptr.2d 217). This reading of the
provision "has long been established" (People v. Frye, supra, 7 Cal.App.4th at p.
1154, 10 Cal.Rptr.2d 217; see People v. Comett, supra, 33 Cal.2d at p. 42, 198
P.2d 877), and can hardly be disturbed now. Indeed, any other reading would
conflict with the due process clause of the Fourteenth Amendment to the United
States Constitution, which requires the state to prove beyond a reasonable doubt
every element of a crime, including every underlying fact. (Sullivan v. Louisiana
(1993) 508 U.S. 275, 277-278, 113 S.Ct. 2078, 124 L.Ed.2d 182.) The
unlawfulness of the killing in question is one of the elements of murder. Its
underlying facts include those bearing on the absence of justification and excuse.

[2] The majority state that they "have no quarrel with" my "view" that an actor who
entertains an actual, but unreasonable, belief in imminent danger of death or great
bodily injury may be guilty of involuntary manslaughter. (Maj. opn., ante, 96
Cal.Rptr.2d at p. 457, 999 P.2d at p. 680.) They go on to state that such an actor,
however, is "guilty of voluntary manslaughter" when he acts "with the intent to kill
or with conscious disregard for life." (Ibid., italics in original.) For my part, I have
no quarrel with their view. So long as the actor is not precluded by his belief from
possessing a state of mind that amounts in fact to malice aforethought, and does
indeed possess a state of mind of that sort. I understand the majority to refer to
implied malice aforethought when they use the phrase "conscious disregard for
life." And I understand them to refer to express malice aforethought when they use
the phrase "intent to kill." As I have explained in the text, bare intent to kill is not
enough for express malice aforethought, since it is neither deliberate nor wrongful.
 106 Cal.Rptr.2d 629 (2001)

25 Cal.4th 610

22 P.3d 392
The PEOPLE, Plaintiff and Respondent,
v.
Milton Otis LEWIS, Defendant and Appellant.
No. S018665.

Supreme Court of California.

May 17, 2001.

Rehearing Denied June 27, 2001.

640*640 Marc D. Stolman, Tiburon, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief
Assistant Attorney General, Robert R. Anderson, Assistant Attorney General,
William G. Prahl and Mathew Chan, Deputy Attorneys General, for Plaintiff and
Respondent.

KENNARD, J.

A jury convicted defendant Milton Otis Lewis of one count of first degree murder
(Pen.Code, § 187),[1] and found true the special circumstance allegations of robbery
murder (§ 190.2, former subd. (a)(17)(i) [now subd. (a)(17)(A)]), and burglary
murder (§ 190.2, former subd. (a)(17)(vii) [now subd. (a)(17)(G)]). The jury also
convicted defendant of two counts of robbery, one count of burglary, and one
count of attempted murder. At the penalty phase, the jury returned a verdict of
death for the first degree murder with special circumstances. After denying
defendant's automatic motion to modify the death verdict (§ 190.4, subd. (e)), the
trial court sentenced defendant to death for the first degree murder, and to a total
determinate term of 21 years in state prison for the remaining counts.

Defendant's appeal to this court is automatic. (§ 1239, subd. (b).) We will affirm
the judgment in its entirety.

I. FACTS
A. The Prosecution's Guilt Phase Evidence

In December 1988, James and Helen Rumsey lived in a unit of the Shasta Pines
Apartments in Redding. Marie Baker, a methamphetamine user, lived in another
unit in the same building. Staying with Baker at that time was 15-year-old Amy
Hadix, who also used methamphetamine regularly.

June Rice, another renter at the Shasta Pines Apartments, sold drugs from her
apartment. On December 21, 1988, defendant, who knew Rice and was a
methamphetamine user, came to Rice's apartment with a man who wanted to sell
some drugs. Rice directed them to Baker's apartment.

On December 24, 1988, around 10:00 or 11:00 a.m., the Rumseys came to Baker's
apartment to give her back some money they owed her. In defendant's presence,
James Rumsey pulled a wallet from his back pocket and removed $50, which he
641*641 handed to Baker. A short time later, also in defendant's presence, Baker's
eight-year-old daughter commented on James Rumsey's money, saying, "Oh,
Mom, he's got gobs."

Later that day, defendant went to June Rice's apartment and bought a halfgram of
methamphetamine with money he had taken from a man after a fistfight in Baker's
apartment. After injecting the drugs, he told Rice they were "decent." When he
returned to Baker's apartment, however, he complained to Baker and Hadix that the
drugs were no good. They told him to return to Rice's apartment to get either more
drugs or his money back. When Hadix said she was going downstairs to visit
another renter, defendant went with her.

As Hadix passed the Rumseys' first floor apartment, she noticed the door was ajar,
and she greeted James, who was seated in an easy chair just inside the doorway.
Suddenly, defendant jumped on James and stuck a knife in his neck. He then
reached into James's back pocket, pulled out his wallet and opened it, but found no
money in it.

When Helen Rumsey tried to come to her husband's aid, defendant kicked her hard
in the groin area, causing her to fall. As she got up, defendant thrust the knife into
her throat, and she fell to the floor again. Defendant returned to James and tried to
reach into the front pocket of his pants, but he was unsuccessful. He turned James's
body over and retrieved a pocketknife from his back pocket. Defendant then picked
up a gun belonging to James from a nearby table and held it to Helen's forehead as
she struggled to her knees. Yelling obscenities at her, defendant threatened to shoot
unless he got some money. He pulled the trigger, and Helen heard a click. She then
crawled to where James was lying, opened the wallet defendant had looked in but
discarded, and removed $250 in $50 bills that had been hidden in a secret
compartment. After Helen handed defendant the money, he picked up James's
pocketknife and gun, grabbed the knife he had brought with him, and walked out
the door.

Meanwhile, Hadix had run to Tim Smith's apartment and told him that defendant
was killing the Rumseys. A few minutes later, defendant appeared at Smith's door
and told Hadix to come with him to June Rice's apartment. On arrival, defendant
pulled James's gun from his pocket and pointed it at Rice, complaining about
"bunk dope." Hadix ran to the bathroom in fright but came out a minute later after
hearing a neighbor yell that Helen Rumsey had been stabbed. She ran to Baker's
apartment, and defendant followed.

Once back inside Baker's apartment, defendant went to the kitchen to wash blood
from his hands. He ordered Baker to hold the gun for him, but she refused.
Defendant then handed Baker $250 in $50 bills and told her to hold the money for
him. He told Hadix to come with him, and they left. Baker later found defendant's
buck knife on her kitchen counter. She wrapped it and threw it away. As to the
money defendant had left with her, she spent $50 on groceries and the rest on
methamphetamine.

After leaving Baker's apartment, defendant, accompanied by Hadix, hid the gun in
a shed behind the apartment complex. They then proceeded to a garbage bin
belonging to a nearby church. Defendant opened the lid, threw Hadix inside, and
then jumped in himself. They hid there for six or seven hours. During this time,
Hadix asked defendant why he had killed James Rumsey. Defendant replied, "It
had to be done." The next morning, defendant and Hadix returned to the shed to
642*642 retrieve the gun, and, at Hadix's suggestion, they went to her parents'
home, which was close by.

Shortly thereafter, the police arrived at the home of Hadix's parents. When Hadix's
father opened the door for the officers, defendant fled into the bathroom.
Defendant ignored the officers' orders to put his gun down and come out. Forty-
five minutes later, defendant emerged, leaving the gun in the bathroom.

An autopsy showed that James Rumsey died from hemorrhaging caused by a

fiveinch-deep knife wound to the front of the neck. Helen Rumsey sustained knife
wounds to the side and back of her neck; one of these wounds was directly over the
carotid artery.
Forensic testing showed that the gun retrieved from the bathroom of Hadix's
parents' home was the gun taken from the Rumseys' apartment. The gun held a full
magazine, but there was no round in the chamber.

B. The Defense Guilt Phase Case

Testifying in his own defense, defendant said he had gone to Baker's apartment for
the first time on December 21, 1988, accompanied by a friend who wanted to sell
Baker some methamphetamine. Defendant was homeless and had no money, so he
stayed with Baker for the next three days. During that time, there was drug use and
constant activity in the apartment, and defendant neither slept nor ate.

On December 24, just after dark, defendant bought methamphetamine from June
Rice and injected it while still in her apartment. Five minutes later, he bought more
methamphetamine from Rice's companion and, again, promptly injected it. The
drugs had an immediate and powerful effect. When he went back to Baker's
apartment, he told Baker he had bought drugs from Rice and the drugs were
"decent." Baker was angry with defendant for not sharing the drugs with her and
suggested he get some more drugs from Rice by complaining that what he had
bought was no good. Feeling badgered and upset, defendant left the apartment with
Hadix to see Rice. Defendant carried a steak knife in his hand in case he
encountered violence at Rice's apartment. On the way, Hadix harangued him about
getting more drugs.

When he and Hadix came to the Rumseys' apartment, defendant mistakenly

believed it was Rice's apartment. He became confused and could feel himself "ball
up inside" because he was afraid he was going to be attacked by Rice's companion.
Suddenly, he heard a whirring sound and saw James Rumsey start to get out of his
chair by the door. Defendant became scared and stabbed him once, not knowing
whom he was stabbing. When Helen Rumsey rushed at him, he stabbed her also.

Defendant recalled removing James's wallet and not finding any money in it. He
admitted yelling at Helen, "Bitch, if you don't get me more money, I'll get you,
too." He also remembered that after Helen handed him the money from the wallet,
he picked up James's gun from the table, but he denied pointing it at Helen's
forehead and pulling the trigger.

Defendant remembered leaving the Rumseys' apartment and proceeding to Rice's

residence. Once inside, he pulled out the gun and demanded more drugs. About a
minute later, he was interrupted when a neighbor came to the door seeking help for
the Rumseys.
When defendant returned to Baker's apartment, he dropped the knife in the sink
full of dishwater. At Baker's direction, he put the knife in the garbage, 643*643
which he and Hadix took and disposed of on their way out.

When called as a defense witness, the investigating officer, Sergeant Lebak,

testified that Hadix had told him of entering the Rumseys' apartment with
defendant.

C. The Penalty Phase

At the penalty phase of the trial, the prosecution presented evidence of six
incidents of unadjudicated violent criminal activity, one robbery that resulted in a
felony conviction, and a felony drug conviction.

In December 1971, a police officer saw defendant fighting with a woman on a

street corner in Los Angeles. Defendant shook the woman, threw her to the
sidewalk, struck her in the head with his fist, and knocked her against an apartment
building, rendering her unconscious. Defendant resisted arrest, and the officer used
a choke hold to subdue him.

July 1980, around 10:00 p.m., defendant entered a liquor store in Southgate and
approached the clerk, Kiro Horiuchi. Defendant said: "I have a gun; I don't want to
shoot you." Defendant was holding one hand behind a straw hat. Defendant told
Horiuchi to empty out the register, and Horiuchi complied. Defendant took around
$250 to $300. Horiuchi's wife activated a silent alarm, and defendant was arrested
nearby within minutes. He did not have a gun when arrested. For this incident,
defendant was convicted of robbery (§ 211), a felony.

In February 1985, at a house in Weed, defendant was arguing with his mother
when defendant's uncle, Leon Johnson, told defendant to stop. Defendant followed
Johnson around the house and, when Johnson refused to fight, defendant stabbed
him twice in the chest with a folding knife having a blade four and a half to five
inches in length. Defendant left the house, but he returned a short time later,
surrendered to the police, and signed a confession.

In January 1986, defendant was married to a woman named Willie B. Shumlai.

During an argument, he hit her in the eye with his fist.

In August 1986, defendant and Debra Swango had been living together in
defendant's house in Weed for around eight months, and she was three months
pregnant. Defendant wanted her to move out, and during an argument about that,
he hit her with his fist, causing a black eye and a cut to her lip that left a scar. He
also dragged her out of the house.

In September 1986, defendant encountered George Toombs, the father of Willie B.

Shumlai, at a supermarket parking lot in Weed. Toombs, who was then 63 years
old, was sitting in his pickup truck. Defendant had a handgun, and he fired a shot
that punctured one of the truck's tires. When Toombs asked defendant why he did
it, defendant said: "Next time you hear son of a bitch I'm going to be shooting your
God damn guts out."

On an evening in November 1986, Andrew Greene encountered defendant outside

a bar in Weed known as the Nightcap. Greene warned defendant to stay away from
one of Greene's sons. Defendant told Greene to wait, and then defendant left. More
than an hour later, defendant entered the bar shouting for Greene and threatening
his life. Defendant was wearing a trench coat. As John Rogers, the bar's owner,
approached him, defendant reached into his coat. Rogers pulled the coat down over
defendant's shoulders, revealing a revolver in a holster. Rogers took the gun from
defendant.

In June 1987, defendant entered a plea of guilty to a charge of sale of

methamphetamine 644*644 (Health & Saf.Code, § 11379), a felony.

The defense presented no evidence in mitigation at the penalty phase. Defense

counsel's terse closing argument was a plea for mercy based on biblical references
and lines from William Shakespeare's The Merchant of Venice.

II. PRETRIAL AND JURY SELECTION ISSUES

A. Waiver of the Right to a Speedy Trial

The prosecution filed the information on February 14, 1989, and defendant was
arraigned the same day. After reading aloud the charges and allegations contained
in the information, the trial court informed defendant of various rights, including
the right to proceed to trial within 60 days, and the court asked defendant if he
understood those rights. When defense counsel requested more time before
defendant entered his plea, the court asked defendant if he would agree to have the
60-day period commence from February 27 rather than from February 14, and
defendant agreed. During the next 12 months, defendant waived his right to a
speedy trial on three more occasions.
At a hearing on February 5, 1990, counsel for both sides asked the trial court to set
defendant's trial on August 14, 1990. The court responded: "All right. I think what
we'll probably do, then, is just go ahead and try to gear it up for the usual screening
selection of a jury. Unless— Unless there's going to be some problem. So, let's
figure, at least for the moment, get started picking a jury then on August the 14th."
Defendant agreed to waive time.

On August 14, 1990, after defense counsel explained to defendant that he and the
prosecutor planned to discuss with the judge the wording of the jury questionnaire
and the procedures for questioning potential jurors, defendant personally waived
his right to be present. The next day, prospective jurors were assembled for jury
selection. One day later, on August 16, the prospective jurors were sworn.

Defendant contends the failure to commence trial on or before August 14, 1990, in
the absence of his waiver of the right to a speedy trial, violated both California law
and the Sixth Amendment of the United States Constitution. We disagree.

Under article I, section 15 of the California Constitution and the Sixth Amendment
of the United States Constitution, a criminal defendant has the right to a speedy
public trial. This right protects the defendant "`from having criminal charges
pending against him an undue length of time.'" (People v. Wilson (1963) 60 Cal.2d
139, 148, 32 Cal.Rptr. 44, 383 P.2d 452, quoting People v. Godlewski (1943) 22
Cal.2d 677, 682, 140 P.2d 381; see also People v. Martinez (2000) 22 Cal.4th 750,
760, 94 Cal.Rptr.2d 381, 996 P.2d 32 [explaining purposes of federal constitutional
guarantee].) To implement this constitutional right, our Legislature enacted section
1382, which requires dismissal when a defendant is not "brought to trial" within
the statutorily prescribed period after the filing of the information. (Rhinehart v.
Municipal Court (1984) 35 Cal.3d 772, 776, 200 Cal.Rptr. 916, 677 P.2d 1206.) A
defendant is "brought to trial" under section 1382 when the court has "committed
its resources to the trial, and the parties must be ready to proceed and a panel of
prospective jurors must be summoned and sworn." (Rhinehart v. Municipal Court,
supra, at p. 780, 200 Cal.Rptr. 916, 677 P.2d 1206.)

A defendant charged with a felony must be brought to trial within 60 days of

arraignment 645*645 on the information or indictment, but a defendant who
consents to the setting of a trial date beyond the 60-day period may be "brought to
trial" on or within 10 days after the date to which consent was given. (§ 1382,
subd. (a)(2)(B).) Here, defendant consented to a trial date of August 14, and he was
brought to trial two days later on August 16 when a panel of prospective jurors was
sworn. Because trial began well within the statutory 10-day grace period,
defendant's statutory and constitutional speedy trial rights were not violated, and he
was not entitled to a dismissal.

B. Jury Selection

Defendant raises several claims challenging the selection of the jury in his case. As
appears below, none has merit.

1. Failure to administer oath to prospective jurors

In a hearing held on September 25, 1990, outside the presence of prospective

jurors, the trial court asked counsel whether the prospective jurors should have
taken the jurors' oath under Code of Civil Procedure section 232 before answering
the written questionnaires about their views on the death penalty and other matters.
The court noted that the prospective jurors had taken this oath in the court's
presence before answering any questions orally, and that each prospective juror
had signed the questionnaire under penalty of perjury. The court observed,
however, that the opening paragraph on the questionnaire incorrectly stated that the
jurors had been sworn by the court clerk.

The prosecutor saw no problem in the failure to administer the oath for the
questionnaires because he considered the questionnaires simply a guide in porally
questioning the jurors. Defense counsel too saw no error in the procedures that had
been followed. The trial court then ordered the questioning of prospective jurors to
resume.

Defendant contends the trial court's failure to follow the proper procedures for
administering the oath to prospective jurors as required by Code of Civil Procedure
section 232 violated his federal constitutional rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments. Code of Civil Procedure section 232 requires a
specified oath to be administered to prospective jurors before examination.[2]
Respondent counters that it is questionable whether having prospective jurors fill
out questionnaires is an "examination" within the meaning of Code of Civil
Procedure section 232.

There is no decision addressing the latter point directly, but the language of Code
of Civil Procedure section 232 suggests respondent's proposed reading of the
statutory command is too narrow. The oath administered under Code of Civil
Procedure section 232 requires prospective jurors to agree to accurately and
truthfully answer "`all questions ... concerning [their] qualifications and
competency.'" (Code Civ. Proc., § 232, subd. (a).) Moreover, our recent decisions
describing the judicial practice of conducting voir dire in 646*646 a capital case by
having prospective jurors give written answers to a jury questionnaire imply that a
juror questionnaire is part of the "examination" for purposes of Code of Civil
Procedure section 232. (See People v. Waidla (2000) 22 Cal.4th 690, 713-714, 94
Cal.Rptr.2d 396, 996 P.2d 46 [no error in trial court's denial of defense request to
conduct voir dire of prospective jurors where prospective jurors had answered 25-
page questionnaire under penalty of perjury]; People v. Earp (1999) 20 Cal.4th
826, 851-855, 85 Cal.Rptr.2d 857, 978 P.2d 15 [trial court's voir dire procedure did
not violate constitutional commands].)

Although defendant is correct that prospective jurors should have been sworn
under Code of Civil Procedure section 232 before filling out their questionnaires,
he fails to establish that he was prejudiced by the trial court's failure to administer
the oath at that juncture. (See United States v. Martin (6th Cir.1984) 740 F.2d
1352, 1358 [error in failing to administer oath to jury until after government had
presented case-in-chief harmless where defendant failed to show any prejudice by
delay and no objection was made]; Cooper v. Campbell (8th Cir.1979) 597 F.2d
628, 629 [no evidence that delay in swearing in jury prejudiced defendant's right to
jury trial, fair trial, or due process].) Here, the prospective jurors signed their
questionnaires under penalty of perjury and were sworn under Code of Civil
Procedure section 232 before being personally questioned in open court. Defendant
does not assert, nor does the record suggest, that the prospective jurors took their
obligation to truthfully answer the questions posed to them on paper any less
seriously than their duty to do so during oral questioning by the trial court and
counsel. Nor does anything else in the record suggest the voir dire examination
was inadequate. (See People v. Earp, supra, 20 Cal.4th at p. 852, 85 Cal.Rptr.2d
857, 978 P.2d 15; Rosales-Lopez v. United States (1981) 451 U.S. 182, 188, 101
S.Ct. 1629, 68 L.Ed.2d 22.)

Defendant contends that by failing to ascertain that the prospective jurors had been
properly sworn before filling out their questionnaires, his trial counsel provided
constitutionally deficient representation. Because defendant fails to show he was
prejudiced by the jury selection procedures in his case, however, he cannot
establish a violation of his Sixth Amendment rights.

2. Challenges for cause against prospective jurors

Defendant next contends that the trial court violated his rights to a fair trial and an
impartial jury guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution by excusing three prospective jurors for cause on
the prosecutor's challenges.

Under both the federal and state Constitutions, a sentencing jury in a capital case
must be impartial. (People v. Williams (1997) 16 Cal.4th 635, 666-667, 66
Cal.Rptr.2d 573, 941 P.2d 752; see also Morgan v. Illinois (1992) 504 U.S. 719,
726-728, 112 S.Ct. 2222, 119 L.Ed.2d 492.) A prospective juror whose views
about capital punishment, either for or against, would "`"prevent or substantially
impair the performance of his [or her] duties as a juror"'" is not impartial and
therefore may be challenged for cause. (People v. Williams, supra, at p. 667, 66
Cal.Rptr.2d 573, 941 P.2d 752, quoting Wainwright v. Witt (1985) 469 U.S. 412,
424, 105 S.Ct. 844, 83 L.Ed.2d 841.) We will uphold a trial court's ruling on a for-
cause challenge by either party "if it is fairly supported by the record, accepting as
binding the trial court's determination as to the prospective 647*647 juror's true
state of mind when the prospective juror has made statements that are conflicting
or ambiguous." (People v. Mayfield (1997) 14 Cal.4th 668, 727, 60 Cal.Rptr.2d 1,
928 P.2d 485; see also People v. Jenkins (2000) 22 Cal.4th 900, 987, 95
Cal.Rptr.2d 377, 997 P.2d 1044.)

a. Prospective Juror Harold G.

At the outset of voir dire, Prospective Juror Harold G. said he had no personal
convictions that would cause him to automatically decide which penalty to impose
and he could follow the trial court's instructions and reach an appropriate verdict.
During the prosecution's examination, however, Harold G. confirmed he had
answered "yes" to a questionnaire item asking, "Do you believe there is any reason
why you might have any difficulty in objectively and impartially serving as a juror
in this case?" The prosecutor then asked him if he would still answer "no" to the
question posed to him on the questionnaire as to whether he could set aside his
personal feelings about the death penalty law and follow the law as explained by
the court. He replied that his answer would still be "no."

Although he made contradictory statements about his ability to set aside his own
personal views and follow the law, Harold G. ended his examination with the
declaration that he could not set aside his personal views. Under these
circumstances, the trial court did not abuse its discretion in excusing Harold G. for
cause. The record does not support defendant's complaint that the trial court failed
to ask enough questions during voir dire to determine whether the challenge for
cause was proper.
b. Prospective Juror Robert T.

When Prospective Juror Robert T. stated during voir dire he was "not completely
sold on that death penalty," the trial court admonished him that his personal views
were not to be taken into consideration and that he must follow the court's
instructions. Robert T. responded that he could set aside his personal feelings and
apply the law as the court explained it. But when the prosecutor asked him
whether, in light of his convictions about the death penalty, he would be capable of
deciding for himself to vote for the death penalty if that was what the evidence
showed and the law indicated, Robert T. replied, "I'm not positive I could, you
know." And when the prosecutor asked, "Wouldn't it be fair to say you just can't
conceive of a situation where you'd vote for the death penalty?," he responded, "I
really don't think so."

Given these responses to the prosecutor's questions, we are satisfied that the trial
court did not abuse its discretion when it excused Robert T. for cause. Defendant
argues that Robert T.'s response of "I really don't think so" meant he found the
prosecutor's assessment of his inability to apply the death penalty in any setting to
be inaccurate. This interpretation is untenable in light of Robert T.'s other
comments. Equally unpersuasive is defendant's contention that the trial court
improperly relied on answers to the unsworn questionnaire to excuse Harold G.
and Robert T. As the record shows, these prospective jurors took the required oath
before being orally examined, and they confirmed their questionnaire responses
during that oral examination.

c. Prospective Juror Leonard B.

On voir dire, Prospective Juror Leonard B. said he might have difficulty if he was
asked to decide the penalty and such a decision would weigh on his conscience. He
also said he had been opposed to the death penalty for a number of years. 648*648
On further questioning by the prosecutor, Leonard B. said: "I can conceive of
situations, maybe where I had a personal emotional involvement, where I would go
along with it. But, in general, it would be very disturbing to me to feel for the rest
of my days that I voted in favor of the death penalty." He reiterated the point later
when he stated, "It's conceivable to me that I would vote in favor of the death
penalty but I doubt it very much." He ended by declaring, "I'm a flexible person
but not that flexible, I think." After considering defense counsel's argument
pointing out that the juror had stated there were circumstances under which he
could vote for the death penalty, the trial court sustained the prosecutor's challenge
for cause.
The ruling was not an abuse of discretion. A prospective juror may not be excused
for cause simply because of a strong opposition to capital punishment if the juror
can nevertheless follow the trial court's instructions and fairly consider imposing
the death penalty in a specific case. (Adams v. Texas (1980) 448 U.S. 38, 44-45,
100 S.Ct. 2521, 65 L.Ed.2d 581; see also Wainwright v. Witt, supra, 469 U.S. at p.
424, 105 S.Ct. 844; People v. Ashmus (1991) 54 Cal.3d 932, 963, 2 Cal.Rptr.2d
112, 820 P.2d 214 [prospective juror who expresses opposition to death penalty not
properly excused for cause if juror reveals ability to consider imposing death
penalty as a "reasonable possibility"].) Here, however, Leonard B. did not merely
acknowledge his opposition to the death penalty, he said he doubted very much he
would vote for the death penalty, and he thought he was not flexible enough to do
so against his personally held views. These comments amply support the trial
court's conclusion that Leonard B.'s death penalty views would substantially impair
his ability to follow the court's instructions and the law.

3. Denial of defense challenges for cause

Defendant contends the trial court erred in denying two defense challenges for
cause. Here, the record shows defendant accepted the jury after having exercised
only five of the 26 peremptory challenges allotted to him. Therefore, his claim of
error is not preserved for appeal. (People v. Waidla, supra, 22 Cal.4th at p. 715, 94
Cal.Rptr.2d 396, 996 P.2d 46; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005, 30
Cal.Rptr.2d 818, 874 P.2d 248.) To preserve a claim based on the trial court's
overruling a defense challenge for cause, "a defendant must either exhaust all
peremptory challenges and express dissatisfaction with the jury ultimately selected
or justify the failure to do so." (People v. Williams, supra, 16 Cal.4th at p. 667, 66
Cal.Rptr.2d 573, 941 P.2d 752.)

Defendant acknowledges he did not exhaust his peremptory challenges, but he

argues we should abandon the requirement of exhaustion of peremptories because
it violates federal constitutional principles. We have previously considered and
rejected identical arguments. (People v. Raley (1992) 2 Cal.4th 870, 905, 8 Cal.
Rptr.2d 678, 830 P.2d 712 [declining to reconsider view that failure to exhaust
peremptory challenges shows lack of prejudice from erroneous denial of for-cause
challenge].) Because defendant presents no new grounds for reexamining the rule,
we decline his request to do so here.

4. Fair cross-section of the community

Pointing out that none of the jurors deciding his case was African-American,
defendant posits that the racial composition of the venire pool did not reflect
649*649 an adequate cross-section of the community, in violation of his federal
and state constitutional rights. (U.S. Const., 6th & 14th Amends.; Cal. Const., art.
I, § 16.) He asserts that the venire's racial composition was potentially significant
here because he is an African-American accused of killing a White person.

A criminal defendant is guaranteed the right to be tried by a fair and impartial jury
drawn from a representative cross-section of the community. (People v. Wheeler
(1978) 22 Cal.3d 258, 266, 277, 148 Cal.Rptr. 890, 583 P.2d 748.) But a defendant
who does not object to the panel or move to quash the jury venire on this ground
has not preserved the issue for appeal. (People v. Champion (1995) 9 Cal.4th 879,
906-907, 39 Cal.Rptr.2d 547, 891 P.2d 93; People v. Fauber (1992) 2 Cal.4th 792,
816, 9 Cal.Rptr.2d 24, 831 P.2d 249.) This is the case here.

Even if properly before us, this claim lacks merit. To establish a prima facie
violation of the right at issue, a defendant must show: (1) the assertedly excluded
group is a "distinctive" group in the community; (2) the group's representation in
venires from which juries are selected is neither fair nor reasonable in relation to
the number of such individuals in the community; and (3) the underrepresentation
is due to "systematic exclusion of the group in the jury-selection process." (Duren
v. Missouri (1979) 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579; People v.
Massie (1998) 19 Cal.4th 550, 580, 79 Cal. Rptr.2d 816, 967 P.2d 29.) "A
defendant cannot establish a prima facie case of systematic exclusion of a
distinctive group merely by presenting statistical evidence that the group is
underrepresented in the jury pool, venire, or panel." (People v. Massie, supra, at p.
580, 79 Cal.Rptr.2d 816, 967 P.2d 29, fn. omitted; People v. Howard (1992) 1
Cal.4th 1132, 1160, 5 Cal.Rptr.2d 268, 824 P.2d 1315; People v. Bell (1989) 49
Cal.3d 502, 524, 262 Cal. Rptr. 1, 778 P.2d 129.) Instead, he or she must show that
the underrepresentation "`is the result of an improper feature of the jury selection
process.'" (People v. Massie, supra, at p. 580, 79 Cal.Rptr.2d 816, 967 P.2d 29,
quoting People v. Howard, supra, at p. 1160, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

Here, defendant acknowledges he lacks evidence that any disparity in

representation of African-Americans in the venire was the result of an improper
feature in the jury selection process. He nonetheless urges this court to reconsider
the requirement that a defendant present something more than statistical evidence
of a disparity to satisfy this prong of the threepart test for establishing a prima facie
case of violation of the fair cross-section requirement. Defendant fails to provide
any reasons why a defendant's burden in this regard should be lightened.
Accordingly, we decline to revisit the issue here. (See People v. Bell, supra, 49
Cal.3d at pp. 528-531, 262 Cal.Rptr. 1, 778 P.2d 129 [discussing why statistical
showing of underrepresentation is inadequate to meet defendant's burden of
showing systematic exclusion].)

5. Cumulative effect of asserted errors

Defendant contends the cumulative effect of the asserted errors in jury selection
denied him an impartial jury, fair trial, due process of law, and a reliable guilt
verdict in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution. We have concluded that the trial court's error in not
administering the oath to prospective jurors before they answered the jury
questionnaires did not prejudice defendant. Otherwise, we have found no merit in
any of defendant's properly 650*650 preserved claims of error. Accordingly, there
can be no cumulative effect warranting reversal. (People v. Mayfield (1993) 5
Cal.4th 142, 197, 19 Cal.Rptr.2d 836, 852 P.2d 331; People v. Frank (1990) 51
Cal.3d 718, 736, 274 Cal.Rptr. 372, 798 P.2d 1215.)

III. GUILT PHASE ISSUES

A. Admission of Evidence

1. Evidence of uncharged robbery

At the guilt phase, prosecution witness Amy Hadix started to describe a fight
between defendant and a man she had never seen before that occurred in Marie
Baker's apartment several hours before James Rumsey was killed. Defense counsel
objected that this was irrelevant. At a sidebar conference, defense counsel further
argued the evidence involved an alleged prior bad act that was unrelated to and
dissimilar from the charged offenses and was unduly prejudicial. After hearing
from counsel for both sides, the trial court permitted Hadix to testify that defendant
obtained an unknown sum of money from the man.

Later, during cross-examination of defendant, and outside the jury's presence, the
prosecutor requested that the previous line of questioning be reopened. He pointed
out that when defendant was arrested he was in possession of a driver's license
belonging to Robert Southard, the man he had fought in Baker's apartment hours
before James Rumsey's death. He also noted that by defendant's own admission, he
took $52 from Southard and used it to buy drugs from June Rice. The prosecutor
argued that this evidence was highly probative of defendant's intent in entering the
Rumseys' apartment, particularly in light of defendant's testimony that he entered
the unit by mistake and with no intent to steal. The trial court found the evidence
admissible for the limited purpose of showing defendant's state of mind,
concluding that the probative value of the evidence exceeded any prejudicial
effect. The court also said it would give the jury a limiting instruction.

When cross-examination resumed, defendant testified he bought methamphetamine

from June Rice on December 24 with money he had taken from Southard after
beating him up. On redirect examination, defendant explained he fought Southard
after Southard had made insulting and racist comments to him. He admitted taking
Southard's money while Southard was bent over on the floor with his wallet
sticking out of his back pocket. Defendant said: "[I]t come [sic] to me at that point
to reach in his back pocket, take the wallet, take the money."

Defendant contends the evidence involving Southard was admitted in violation of

state evidentiary law and federal constitutional principles.

Evidence of prior criminal acts is admissible "when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge ...)," but not to
prove the defendant carried out the charged crimes in conformity with a character
trait. (Evid.Code, § 1101.) "To be relevant on the issue of identity, the uncharged
crimes must be highly similar to the charged offenses.... [¶] ... [¶] A lesser degree
of similarity is required to establish relevance on the issue of common design or
plan.... [¶] The least degree of similarity is required to establish relevance on the
issue of intent. [Citation.] For this purpose, the uncharged crimes need only be
`sufficiently similar [to the charged offenses] to support the inference that the
defendant "`probably harbored the same intent in each instance.' [Citations.]"`"
(People v. Kipp (1998) 18 Cal.4th 349, 369-371, 75 Cal.Rptr.2d 716, 956 P.2d
1169; 651*651 see also People v. Carpenter (1997) 15 Cal.4th 312, 379, 63
Cal.Rptr.2d 1, 935 P.2d 708.)

As we have observed, however, evidence of uncharged misconduct "`is so

prejudicial that its admission requires extremely careful analysis'" and to be
admissible, such evidence "`must not contravene other policies limiting admission,
such as those contained in Evidence Code section 352.'" (People v. Ewoldt (1994)
7 Cal.4th 380, 404, 27 Cal.Rptr.2d 646, 867 P.2d 757.) Thus, "[t]he probative
value of the uncharged offense evidence must be substantial and must not be
largely outweighed by the probability that its admission would create a serious
danger of undue prejudice, of confusing the issues, or of misleading the jury."
(People v. Kipp, supra, 18 Cal.4th at p. 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169.)
On appeal, a trial court's ruling under Evidence Code sections 1101 and 352 is
reviewed for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10,
82 Cal.Rptr.2d 413, 971 P.2d 618; People v. Kipp, supra, at p. 369, 75 Cal. Rptr.2d
716, 956 P.2d 1169; People v. Carpenter, supra, 15 Cal.4th at p. 380, 63
Cal.Rptr.2d 1, 935 P.2d 708.)

Applying these principles, we find no abuse of discretion and no federal

constitutional violation in the admission of the uncharged crimes evidence. In both
the charged and uncharged crimes, defendant overcame the victim by force, then
reached into the victim's back pocket to obtain his wallet. Both times, after having
taken the money, defendant proceeded to June Rice's apartment to buy
methamphetamine. Although the incidents themselves are not particularly
distinctive, they are sufficiently similar to support an inference that defendant
harbored the same intent in both instances, that is, to forcibly obtain cash from the
victim. Contrary to defendant's assertion, this is not a case in which the evidence
relating directly to the charged crimes was so compelling on the question of
defendant's intent as to render the uncharged crimes evidence merely cumulative
on the issue. (See People v. Balcom (1994) 7 Cal.4th 414, 422-423, 27 Cal. Rptr.2d
666, 867 P.2d 777.) Furthermore, the trial court limited any prejudicial impact of
the uncharged crimes evidence by instructing the jury, in the language of CALJIC
No. 2.50, that such evidence could not be considered to prove defendant was a
person of bad character or that he had a disposition to commit crime.

In a related claim, defendant notes that although the trial court instructed the jury
generally about the limited use of uncharged crimes evidence, it failed to pinpoint
the particular evidence of the Southard fight in the instruction.[3] He argues that the
omission denied him due process of law and other guarantees under the state and
federal Constitutions because the trial court had promised to give such a limiting
instruction at the time it ruled the evidence admissible.

Defendant's constitutional claim is premised on what appears to have been a

misstatement by the trial court. The record shows that in ruling on the 652*652
admissibility of the Southard fight evidence, the trial court indicated it would "give
a limiting instruction to the—I think it's under 2.60, CALJIC 2.60." This particular
instruction, however, does not concern the limited use of evidence of uncharged
crimes. Rather, it tells the jury to draw no inferences from the defendant's failure to
testify at trial. Defendant cannot seriously dispute the supposition that the trial
court simply misspoke when, after indicating it would give a limiting instruction, it
made reference to CALJIC No. 2.60 instead of CALJIC No. 2.50. In any event, the
trial court did instruct as promised, about the limited use of the uncharged crimes
evidence. Although defendant now complains the trial court never "pinpointed" the
Southard fight evidence as the uncharged crimes evidence that was being admitted
for the limited purpose of showing intent, he did not request such an instruction
and therefore has not preserved the issue. (People v. Freeman (1994) 8 Cal.4th
450, 495, 34 Cal.Rptr.2d 558, 882 P.2d 249.) Nor did his attorney's failure to make
such a request deny defendant the effective assistance of counsel. Because the jury
was fully instructed on the limited use of uncharged crimes evidence under
CALJIC No. 2.50, and there was no evidence of any incident to which jurors may
have mistakenly believed the limiting instruction applied, defendant fails to make
the necessary showing that, but for counsel's asserted deficiency, there is a
reasonable probability that a determination more favorable to him would have
resulted. (In re Cudjo (1999) 20 Cal.4th 673, 687, 85 Cal.Rptr.2d 436, 977 P.2d
66; Strickland v. Washington (1984) 466 U.S. 668, 697, 104 S.Ct. 2052, 80
L.Ed.2d 674.)

2. Testimony about defendant's practice with a buck knife

During cross-examination, defendant indicated he at one time had carried a buck

knife and had told people he practiced with it. He denied having this knife in his
possession during the events leading to the present charges, however. In response
to the prosecutor's question about how he used to practice with the knife, defendant
explained that he would grab the knife from his pocket and open it as fast as he
could. When defendant was then asked to describe this knife, defense counsel
objected on relevancy grounds and the trial court sustained the objection.

On further cross-examination, defendant said he took a knife with him when he

went to see June Rice about getting more drugs. The prosecutor asked defendant
where he got this knife, and defendant replied that it came from Marie Baker's
kitchen. The following exchange then took place:

Prosecutor: "Well, you have some familiarity with knives, didn't you?"

Defendant: "Not a specialist, I'm not, different than a steak knife."

Prosecutor: "Well, you used to practice with your buck knife?"

Defendant: "Not competition that I was preparing for, if you understand what I
mean."

Defense counsel objected that this line of questioning was not relevant, but the trial
court overruled the objection without comment. Defendant continued, "I wasn't
practicing to kill somebody, if that's what you're trying to ask." The prosecutor
then inquired, "What did the knife look like?" Defendant replied with a detailed
description of his buck knife, including the length of the blade. The trial court
interrupted the cross-examination, however, to ask defendant if he was describing
the knife he got from Baker's kitchen. When defendant indicated he thought the
prosecutor was asking him to describe the buck 653*653 knife he used to carry, the
trial court clarified that the prosecutor's question related to the knife taken from
Baker's residence. After the prosecutor confirmed the trial court's understanding of
the question, defendant described that knife as a regular kitchen-set knife with a
black handle.

Defendant asserts that the prosecutor's questioning about the buck knife was
misconduct and that the trial court, by overruling defense counsel's relevancy
objection to this questioning, violated state evidentiary law and federal
constitutional guarantees of fair trial, due process, fundamental fairness, and
reliability of verdicts.

"No evidence is admissible except relevant evidence." (Evid.Code, § 350.)

"`Relevant evidence' means evidence, including evidence relevant to the credibility
of a witness ..., having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action." (Evid.Code, § 210;
People v. Alcala (1992) 4 Cal.4th 742, 797, 15 Cal.Rptr.2d 432, 842 P.2d 1192.)
Accordingly, a "witness may not be examined on matters that are irrelevant to the
issue in the case." (People v. Mayfield, supra, 14 Cal.4th at p. 755, 60 Cal. Rptr.2d
1, 928 P.2d 485.)

To the extent defendant's claim of prosecutorial misconduct is based on the

prosecutor's question that elicited the response from defendant describing his buck
knife, there was no impropriety. The prosecutor was asking defendant to describe
the knife used in the charged crimes, the relevance of which cannot be called into
question. The prosecutor is not to be faulted for defendant's misunderstanding of
the question, which the trial court quickly clarified in any event.

As to the prosecutor's question about defendant's having formerly practiced with

his buck knife, that was also proper. Defendant argues that evidence of his past
practice was irrelevant because there was no evidence he used a buck knife to stab
the victims. Although there was no direct evidence the murder weapon was a buck
knife, the testimony on this issue was inconclusive and therefore did not foreclose
that possibility. For example, Marie Baker testified that the knife defendant left on
the kitchen sink after the stabbings was one she had never seen before. Moreover,
evidence of defendant's earlier efforts to perfect his ability to quickly retrieve and
open a pocketknife tends to undermine defendant's version of his attack on the
victims as an unthinking response to being startled first by James Rumsey and then
by Helen Rumsey.

Nor did the trial court err by not prohibiting the line of questioning under Evidence
Code section 352 as more prejudicial than probative. The inquiry was relevant
under applicable standards, as previously discussed. The trial court could
reasonably conclude that any danger of prejudice in portraying defendant as having
a propensity for violence did not substantially outweigh this probative value, and
thus the trial court did not abuse its discretion in failing to exclude the evidence
under Evidence Code section 352.

3. Admission of victim photographs and crime scene videotape

At a pretrial hearing to mark exhibits the parties intended to offer into evidence,
defendant objected to seven color photographs of the victims and a videotape of
the crime scene on the grounds these proposed exhibits were unduly gruesome and
more prejudicial than probative. The trial court sustained the objection as to three
photographs, but it overruled defense objections to the remaining four photographs
and the videotape.

654*654 Defendant contends the admitted evidence was irrelevant because it had
no bearing on the only contested issues, which concerned defendant's specific
intent to commit the underlying felonies. He argues, moreover, that any probative
value the evidence might possess was far outweighed by its prejudicial impact,
given the graphic and bloody images portrayed.

The admissibility of victim and crime scene photographs and videotapes is

governed by the same rules of evidence used to determine the admissibility of
evidence generally: Only relevant evidence is admissible. (Evid.Code, § 350; see
also id., § 210; People v. Mendoza (2000) 24 Cal.4th 130, 171, 99 Cal.Rptr.2d 485,
6 P.3d 150; People v. Crittenden (1994) 9 Cal.4th 83, 132, 36 Cal.Rptr.2d 474, 885
P.2d 887.) The trial court has broad discretion in deciding the relevancy of such
evidence. (People v. Smithey (1999) 20 Cal.4th 936, 973, 86 Cal.Rptr.2d 243, 978
P.2d 1171; People v. Crittenden, supra, at p. 132, 36 Cal.Rptr.2d 474, 885 P.2d
887.)

Although defendant contends the photographs were inadmissible because they had
no bearing on the only disputed question at trial (his mental state), we have made
clear that the absence of a defense challenge to particular aspects of the
prosecution's case or its witnesses does not render victim photographs irrelevant.
(People v. Smithey, supra, 20 Cal.4th at pp. 973-974, 86 Cal.Rptr.2d 243, 978 P.2d
1171; People v. Scheid (1997) 16 Cal.4th 1, 17, 65 Cal.Rptr.2d 348, 939 P.2d 748;
People v. Crittenden, supra, 9 Cal.4th at pp. 132-133, 36 Cal.Rptr.2d 474, 885
P.2d 887.) Here, the photographs of the victims' injuries and the videotape
depicting the crime scene taken by investigating officers tended to corroborate
Helen Rumsey's account of the incident and were therefore relevant to the
prosecution's theory of robbery murder and burglary murder. (People v. Mendoza,
supra, 24 Cal.4th at p. 171, 99 Cal.Rptr.2d 485, 6 P.3d 150.) For example, a
photograph showing murder victim James Rumsey as he was found by officers,
with his face against the chair seat and his knees on the floor, supported Helen's
testimony that shortly after defendant stabbed her husband, he turned the body over
to gain access to James's back pocket after having tried but failed to get his hand
inside the front pocket of James's pants. Two photographs depicting the deep stab
wound in Helen Rumsey's neck not only corroborated her testimony but also
showed the nature and placement of her wound; in this way, they tended to bolster
the prosecution's theory that defendant entered the Rumseys' apartment with the
intent to obtain money from them by force, and undermined defendant's testimony
describing the stabbings as a startled, reflexive reaction to sudden movements by
the victims. (People v. Crittenden, supra, 9 Cal.4th at p. 133, 36 Cal.Rptr.2d 474,
885 P.2d 887.)

Defendant further asserts that because the bloody and graphic nature of the
photographs and videotape must have inflamed the jury, the trial court erred in
refusing to exclude the evidence as more prejudicial than probative under Evidence
Code section 352. Having reviewed the challenged exhibits, we are satisfied their
admission violated neither state evidentiary law nor defendant's federal
constitutional rights to fundamental fairness and reliability of verdicts. Although
the blood-splattered surroundings and the images of the victims depicted in the
photographs and crime scene videotape are disturbing to view, as such evidence
always is (People v. Crittenden, supra, 9 Cal.4th at p. 134, 36 Cal.Rptr.2d 474, 885
P.2d 887), none of these exhibits is unduly gruesome or inflammatory. (People v.
Mendoza, supra, 24 Cal.4th at p. 171, 99 Cal.Rptr.2d 655*655 485, 6 P.3d 150;
People v. Smithey, supra, 20 Cal.4th at p. 974, 86 Cal.Rptr.2d 243, 978 P.2d 1171;
People v. Crittenden, supra, at p. 134, 36 Cal.Rptr.2d 474, 885 P.2d 887; People v.
Pride (1992) 3 Cal.4th 195, 243-244, 10 Cal.Rptr.2d 636, 833 P.2d 643.)

B. Sufficiency of the Evidence

Defendant asserts the evidence adduced at trial was insufficient to establish he had
the requisite mental state for robbery and burglary to sustain his conviction of first
degree felony murder. In considering this claim, we examine the entire record in
the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid
value—that would support a rational trier of fact in finding the essential element of
intent beyond a reasonable doubt. (People v. Marshall (1997) 15 Cal.4th 1, 34, 61
Cal.Rptr.2d 84, 931 P.2d 262; People v. Price (1991) 1 Cal.4th 324, 462, 3 Cal.
Rptr.2d 106, 821 P.2d 610; People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.
Rptr. 431, 606 P.2d 738.)

Liability for first degree murder based on a felony-murder theory is proper when
the defendant kills in the commission of robbery, burglary, or any of the other
felonies listed in section 189. For conviction, the prosecution must establish that
the defendant, either before or during the commission of the acts that caused the
victim's death, had the specific intent to commit one of the listed felonies. (People
v. Anderson (1968) 70 Cal.2d 15, 34, 73 Cal.Rptr. 550, 447 P.2d 942; People v.
Proctor (1992) 4 Cal.4th 499, 532, 15 Cal. Rptr.2d 340, 842 P.2d 1100.) Thus, to
find a defendant guilty of first degree murder based on a killing perpetrated during
a robbery, the evidence must show the defendant intended to steal the victim's
property either before or during the fatal assault. (§ 211; People v. Sakarias (2000)
22 Cal.4th 596, 619, 94 Cal.Rptr.2d 17, 995 P.2d 152; People v. Marshall, supra,
15 Cal.4th at p. 34, 61 Cal.Rptr.2d 84, 931 P.2d 262.) Conviction of felony murder
in the commission of burglary requires proof that the defendant entered the
residence with the intent to commit a felony or theft. (§ 459; People v. Frye (1998)
18 Cal.4th 894, 954, 77 Cal.Rptr.2d 25, 959 P.2d 183; People v. Proctor, supra, at
p. 533, 15 Cal.Rptr.2d 340, 842 P.2d 1100.)

Here, we are satisfied that a rational trier of fact could have found beyond a
reasonable doubt that defendant intended to steal from the Rumseys when he
entered their apartment and assaulted them. The evidence at atrial showed: (1) in
the month preceding the crime, defendant had neither money nor a place to live,
and he was involved in drug activity; (2) on the day of the murder, defendant saw
James Rumsey take $50 from his wallet and overheard Baker's eight-year-old
daughter say that Rumsey had "gobs" of money; (3) several hours before the
murder, defendant had fought with a man in Baker's apartment and had forcibly
taken his money, which he used to buy methamphetamine; and (4) before leaving
Baker's apartment and going to the Rumseys' apartment, defendant had armed
himself with a knife.

Also, Helen Rumsey and Amy Hadix testified that when defendant followed Hadix
past the opened door to the Rumseys' apartment, he pushed her out of the way and
entered the residence, then quickly slammed the door shut after jumping on James
Rumsey and stabbing him in the neck. Helen Rumsey further testified that after
defendant had stabbed James and kicked her away as she approached, he removed
the wallet from James's back pocket and went through it. When defendant found no
cash in the wallet, he 656*656 stabbed Helen in the throat, then pointed a gun at
her head, yelling obscenities and demanding money.

Based on this evidence, a rational trier of fact could find beyond a reasonable
doubt that defendant had formed the intent to steal before entering the Rumseys'
apartment and attacking them. Although the evidence is circumstantial, the intent
required for robbery and burglary is seldom established with direct evidence but
instead is usually inferred from all the facts and circumstances surrounding the
crime. (§ 21, subd. (a); People v. Holt (1997) 15 Cal.4th 619, 669, 63 Cal.Rptr.2d
782, 937 P.2d 213; People v. Cain (1995) 10 Cal.4th 1, 47, 40 Cal.Rptr.2d 481,
892 P.2d 1224; People v. Gibbs (1970) 12 Cal.App.3d 526, 549, 90 Cal.Rptr. 866.)

Defendant argues that his own testimony and that of the three primary prosecution
witnesses—Marie Baker, Amy Hadix, and June Rice—established that he entered
the Rumseys' apartment by mistake and without the specific intent to steal from
them before the entry and attack. He points out that the prosecution's witnesses
testified consistently with his own account of the incident and without
contradiction that he had purchased methamphetamine from June Rice, that he
discussed returning to Rice's apartment to complain about the drugs and attempt to
get more, and that he did return to Rice's residence as originally planned after the
stabbings of the Rumseys.

Even if we were to find that a rational trier of fact could draw from this evidence
the inferences defendant suggests, reversal of the judgment would not be
warranted. We have previously described the limited role of this court in assessing
the sufficiency of the evidence supporting a conviction: If the circumstances
reasonably justify the jury's findings as to each element of the offense, the
judgment may not be overturned when the circumstances might also reasonably
support a contrary finding. (People v. Ceja (1993) 4 Cal.4th 1134, 1139, 17
Cal.Rptr.2d 375, 847 P.2d 55; People v. Proctor, supra, 4 Cal.4th at pp. 528-529,
15 Cal.Rptr.2d 340, 842 P.2d 1100.)

Defendant further asserts that uncontroverted evidence of his intoxication before

and during the incident established he had not formed the intent to steal when he
entered the Rumseys' apartment. Evidence of defendant's conduct after the murder
casts serious doubt on his assertion that the testimony at trial showed he had acted
in a frantic, drug-induced state. But even assuming for argument's sake that the
evidence of defendant's methamphetamine and alcohol consumption before the
commission of the crimes would permit an inference he actually lacked the
requisite specific intent for robbery and burglary (People v. Horton (1995) 11
Cal.4th 1068, 1119, 47 Cal.Rptr.2d 516, 906 P.2d 478), we conclude that reversal
is not warranted. We have determined that the record contains substantial
circumstantial evidence supporting the jury's findings on the question of
defendant's intent. Having reached this conclusion under the applicable principles
of appellate review outlined above, we reject defendant's challenge to the
sufficiency of the evidence. (People v. Ceja, supra, 4 Cal.4th at p. 1138, 17 Cal.
Rptr.2d 375, 847 P.2d 55.)[4]

657*657 C. Jury Instructions

1. Refusal to instruct on manslaughter

The trial court instructed the jury on first degree felony murder and second degree
implied-malice murder. (§§ 189, 188.) But the court refused defense counsel's
request to instruct on the definition of manslaughter and, more specifically, on
involuntary manslaughter based on commission of a lawful act that might produce
death, without due caution and circumspection. (§ 192, subd. (b).) Counsel argued
that the instruction was warranted because the jury could find from the evidence
that defendant was carrying a knife in a lawful manner when he entered the wrong
apartment, but that he did so while keyed-up and under the influence of drugs and
alcohol and, because of this, reacted without due caution and circumspection. After
taking counsel's request under submission, the trial court declined to give the
instruction, saying, "I can't see it either on voluntary or involuntary."

Defendant contends the trial court committed reversible error in refusing his
requested instruction on involuntary manslaughter, and in failing to instruct on its
own initiative on the theory of unreasonable self-defense, which would have
permitted the jury to convict him of no crime greater than voluntary manslaughter.

"[A] defendant has a constitutional right to have the jury determine every material
issue presented by the evidence [and] ... an erroneous failure to instruct on a lesser
included offense constitutes a denial of that right...." (People v. Sedeno (1974) 10
Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913, overruled on other points in
People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1,
and in People v. Breverman (1998) 19 Cal.4th 142, 176, 77 Cal.Rptr.2d 870, 960
P.2d 1094.) To protect this right and the broader interest of safeguarding the jury's
function of ascertaining the truth, a trial court must instruct on lesser included
offenses, even in the absence of a request, whenever there is substantial evidence
raising a question as to whether all of the elements of the charged offense are
present. (People v. Breverman, supra, at p. 154, 77 Cal.Rptr.2d 870, 960 P.2d
1094; People v. Barton (1995) 12 Cal.4th 186, 196, 47 Cal.Rptr.2d 569, 906 P.2d
531.) "Substantial evidence is evidence sufficient to `deserve consideration by the
jury,' that is, evidence that a reasonable jury could find persuasive." (People v.
Barton, supra, at p. 201, fn. 8, 47 Cal.Rptr.2d 569, 906 P.2d 531.)

Manslaughter, both voluntary and involuntary, is a lesser included offense of

murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422, 79 Cal.Rptr.2d 408, 966
P.2d 442; People v. Barton, supra, 12 Cal.4th at pp. 200-201, 47 Cal.Rptr.2d 569,
906 P.2d 531; People v. Berryman (1993) 6 Cal.4th 1048, 1080, 25 Cal.Rptr.2d
867, 864 P.2d 40.) Involuntary manslaughter is defined to include a killing that
occurs "in the commission of a lawful act which might produce death, in an
unlawful manner, or without due caution and circumspection." (§ 192, subd. (b);
People v. Prettyman (1996) 14 Cal.4th 248, 274, 58 Cal.Rptr.2d 827, 926 P.2d
1013.) When the defendant killed in the actual but unreasonable belief that he or
she was in imminent danger of death or great bodily injury, this is termed
"imperfect self-defense," and the killing is 658*658 reduced from murder to
voluntary manslaughter. (In re Christian S. (1994) 7 Cal.4th 768, 771, 773, 30
Cal.Rptr.2d 33, 872 P.2d 574; People v. Barton, supra, at pp. 200-201, 47
Cal.Rptr.2d 569, 906 P.2d 531.)

Defendant asserts there was substantial evidence warranting instruction on both

involuntary manslaughter and voluntary manslaughter based on imperfect self-
defense. He points to his testimony that he was afraid and "ball[ed] up inside" and
had used methamphetamine before setting out for June Rice's apartment armed
with a knife in the event of a confrontation. He mentions also his own testimony
that after mistakenly entering the Rumseys' apartment, he believed he was in
danger when he heard a whirring noise and saw a blur coming at him and that he
"stuck" the victims in response.

The testimony of a single witness, including the defendant, can constitute

substantial evidence requiring the court to instruct on its own initiative. (People v.
Speaks (1981) 120 Cal.App.3d 36, 40, 174 Cal.Rptr. 65; see People v. Turner
(1990) 50 Cal.3d 668, 690, 268 Cal. Rptr. 706, 789 P.2d 887.) But we need not
determine whether the testimony defendant cites constitutes substantial evidence
warranting instruction on involuntary manslaughter and voluntary manslaughter
based on imperfect self-defense because, even if it does, the trial court's failure to
so instruct was not prejudicial. Error in failing to instruct the jury on a lesser
included offense is harmless when the jury necessarily decides the factual
questions posed by the omitted instructions adversely to defendant under other
properly given instructions. (People v. Sealeno, supra, 10 Cal.3d at p. 721, 112
Cal.Rptr. 1, 518 P.2d 913.) Here, the trial court instructed the jury on first degree
felony murder and the crimes of robbery and burglary. In addition, the court
instructed the jury on theft as a lesser included offense of robbery and burglary, an
instruction emphasizing that if defendant formed the intent to steal only after he
had entered the Rumseys' apartment and assaulted them, he was guilty of the lesser
crime of theft. The jury found defendant guilty of robbery and burglary, and it
found true the special circumstance allegations that defendant killed James
Rumsey in the commission of robbery and burglary. (§§ 211, 459, 190.2, former
subd. (a)(17)(i), (vii) [see now subd. (a)(17)(A), (G)].) To render these verdicts, the
jury had to find that defendant had already formed the intent to steal when he
entered the Rumseys' apartment and assaulted them, thus necessarily rejecting
defendant's version of the events. (See People v. Earp, supra, 20 Cal.4th at p. 886,
85 Cal.Rptr.2d 857, 978 P.2d 15; People v. Millwee (1998) 18 Cal.4th 96, 157-158,
74 Cal.Rptr.2d 418, 954 P.2d 990; People v. Parnell (1993) 16 Cal.App.4th 862,
874, 20 Cal.Rptr.2d 302.)

For a similar reason, we reject defendant's contention that defense counsel's failure
to request a jury instruction on unreasonable self-defense constituted ineffective
assistance of counsel. Because the absence of such instruction did not prejudice
him, defendant fails to make the necessary showing that, but for counsel's asserted
deficiency, there is a reasonable probability that a determination more favorable to
him would have resulted. (In re Cudjo, supra, 20 Cal.4th at p. 687, 85 Cal.Rptr.2d
436, 977 P.2d 66; Strickland v. Washington, supra, 466 U.S. at p. 697, 104 S.Ct.
2052.)

2. Failure to give requested pinpoint instruction

Defense counsel proposed, but the trial court declined to give, this jury instruction:
"If you have a reasonable 659*659 doubt whether the defendant had the intent to
steal at the time the unlawful killing took place, you must find him not guilty of
first degree murder." Defendant contends the trial court committed reversible error
in failing to give this requested instruction because the omission left the jury with
no guidance on the requirement of a "unified temporal relationship" between the
perpetration of a felony and the killing of a victim for purposes of establishing
felony murder. He asserts the refusal to so instruct the jury amounted to a failure to
instruct on the defense theory of the case in violation of the Sixth Amendment, and
denied him the rights to due process, fair trial, fundamental fairness and a reliable
verdict.[5]

To prove first degree murder based on a felony-murder theory, the prosecution

must establish that the defendant intended to commit one of the felonies
enumerated in section 189 "either prior to or during the commission of the acts
which resulted in the victim's death." (People v. Anderson, supra, 70 Cal.2d at p.
34, 73 Cal.Rptr. 550, 447 P.2d 942.) Conversely, when the killer forms the intent
to commit an independent felony only after delivering the fatal blow to the victim,
the felonymurder doctrine does not apply. (People v. Jeter (1964) 60 Cal.2d 671,
676-677, 36 Cal.Rptr. 323, 388 P.2d 355; see also People v. Gonzales (1967) 66
Cal.2d 482, 486, 58 Cal.Rptr. 361, 426 P.2d 929 [jury properly instructed that
intent to rob formed after infliction of mortal wounds is insufficient to support
finding of first degree felony murder].)

Here, the relevant principles concerning the timing of the requisite intent to steal
were adequately covered by the instructions given, CALJIC Nos. 8.21 and 9.40
(formerly No. 9.10), defining first degree felony murder and robbery,
respectively.[6] 660*660 (People v. Hayes (1990) 52 Cal.3d 577, 625-626, 276
Cal.Rptr. 874, 802 P.2d 376; People v. Hendricks (1988) 44 Cal.3d 635, 642-643,
244 Cal.Rptr. 181, 749 P.2d 836.)

Defendant acknowledges that in People v. Hayes, supra, 52 Cal.3d 577, 276

Cal.Rptr. 874, 802 P.2d 376, we rejected an identical claim, finding no error in the
trial court's refusal to give two jury instructions requested by the defense that
related to the formation of intent to steal because the pattern instructions defining
first degree felony murder and robbery that were given in the case, CALJIC Nos.
8.21 and former 9.10 (now No. 9.40), adequately covered the issue. (People v.
Hayes, supra, at pp. 625-626, 276 Cal.Rptr. 874, 802 P.2d 376.) He asserts,
however, that Hayes is not dispositive of his claim because the wording of CALJIC
No. 8.21 as given here was fundamentally different from the version given in
Hayes. He points out that while the Hayes jury was instructed that felony murder
requires a finding the unlawful killing occurred "`as a result of the commission of
the crimes of robbery and burglary'" (People v. Hayes, supra, at p. 626, fn. 9, 276
Cal.Rptr. 874, 802 P.2d 376, quoting CALJIC No. 8.21, italics added), the jury
here was told that to convict of felony murder it must find the killing occurred
"during the commission, or attempted commission of robbery and burglary.

The differing language represents two options appearing in a bracketed portion of

CALJIC No. 8.21, a standard instruction. Which one is given depends on whether
the victim's death occurred close in time to the commission of the predicate felony
or at a later period. (See Use Note to CALJIC No. 8.21 (6th ed.1996) p. 392.)
Under both variations of the standard instruction, however, the jury is properly
informed that first degree felony murder applies if it is proven beyond a reasonable
doubt that the defendant formed the intent to steal before or contemporaneously
with, rather than after, the killing. Here, as in People v. Hayes, supra, 52 Cal.3d
577, 276 Cal.Rptr. 874, 802 P.2d 376, the trial court did not err in refusing to give
the requested instruction elaborating on CALJIC Nos. 8.21 and 9.40.

3. Adequacy of instruction on voluntary intoxication

With defense counsel's assent, the trial court used a modified version of CALJIC
No. 4.21 to instruct the jury on the relevance of evidence of defendant's
intoxication to the question whether he formed the specific intents required to
prove the charged crimes of robbery, burglary, and attempted murder, and the
necessarily included offense of theft.[7] Defendant asserts the trial court erred in
omitting from the standard instruction the first paragraph, which would have
described for the jury the specific intent necessary for robbery or burglary. He
argues the error was compounded by the trial court's failure to instruct on the lesser
661*661 crime of manslaughter and on imperfect self-defense.

In assessing defendant's claim of error, we consider the entire charge to the jury
and not simply the asserted deficiencies in the challenged instruction. (People v.
Burgener (1986) 41 Cal.3d 505, 538, 224 Cal.Rptr. 112, 714 P.2d 1251, overruled
on another point in People v. Reyes (1998) 19 Cal.4th 743, 80 Cal. Rptr.2d 734,
968 P.2d 445.) A trial court is not obliged to condense the required explanation of
a legal rule or concept in a single instruction; a charge is not erroneous or
prejudicial simply because a required explanation is given in two instructions
rather than one. (People v. Burgener, supra, at pp. 538-539, 224 Cal. Rptr. 112,
714 P.2d 1251.)

The record shows that in instructing the jury how evidence of voluntary
intoxication relates to the question of specific intent, the trial court did not
expressly define the specific intents required to establish the various crimes at
issue in the case but instead stated as follows: "In the crime of robbery, burglary
and attempted murder and the included or related crime of theft, a necessary
element is the existence in the mind of the defendant of a certain specific intent,
included in the definition of each crime." The "definition of each crime" was given
in other instructions such as CALJIC Nos. 9.40 and 14.50, which set forth the
elements of robbery and burglary, respectively, including the specific intents
necessary to establish those crimes. The jury was also instructed under CALJIC
No. 1.01 to consider the instructions "as a whole and in light of all the others."

In People v. Ochoa, supra, 19 Cal.4th 353, 79 Cal.Rptr.2d 408, 966 P.2d 442, we
found no reasonable likelihood a jury that had been similarly instructed would be
confused or misled about the relationship between evidence of the defendant's
voluntary intoxication and the formation of the specific intent required for proving
the felony-murder charges at issue in that case. (Id. at p. 421, 79 Cal.Rptr.2d 408,
966 P.2d 442; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1143, 36
Cal.Rptr.2d 235, 885 P.2d 1; People v. Clark (1993) 5 Cal.4th 950, 1021, 22
Cal.Rptr.2d 689, 857 P.2d 1099.) Defendant fails to point to anything in the record
suggesting grounds for reaching a contrary conclusion here. (See People v. Welch
(1999) 20 Cal.4th 701, 757, 85 Cal.Rptr.2d 203, 976 P.2d 754 [finding similar
claim of error waived by counsel's failure to request additional or clarifying
instruction].)

Defendant also contends the trial court should have further defined voluntary
intoxication for the jury by giving CALJIC No. 4.22 on its own initiative. He
asserts the omission violated his federal constitutional rights to due process,
fundamental fairness, confrontation of witnesses, and freedom from cruel and
unusual punishment. That instruction states: "Intoxication of a person is voluntary
if it results from the willing use of any intoxicating liquor, drug or other substance,
knowing that it is capable of an intoxicating effect or when [he] [she] willingly
assumes the risk of that effect, [¶] Voluntary intoxication includes the voluntary
ingestion, injecting or taking by any means of any intoxicating liquor, drug or other
substance." (Ibid.)

There was no error. Because a trial court has no duty on its own initiative to give
an instruction relating evidence of voluntary intoxication to the question of
defendant's mental state generally (People v. Ervin (2000) 22 Cal.4th 48, 90-91, 91
Cal.Rptr.2d 623, 990 P.2d 506; People v. Saille (1991) 54 Cal.3d 1103, 1120, 2
Cal. Rptr.2d 364, 820 P.2d 588), the trial court 662*662 here had no obligation to
clarify or elaborate on the voluntary intoxication instructions it gave. (People v.
Clark, supra, 5 Cal.4th at pp. 1021-1022, 22 Cal.Rptr.2d 689, 857 P.2d 1099.)

Nor did the absence of an instruction further defining voluntary intoxication

prejudice defendant. As previously noted, the modified version of CALJIC No.
4.21 told the jury: "[I]f the evidence shows that the defendant was intoxicated at
the time of the alleged crime from the use of alcohol and drugs, you should
consider that fact in determining whether the defendant had such specific intent."
In addition, defense counsel urged the jury to find defendant lacked the specific
intent to steal when he entered the Rumseys' apartment and attacked them,
stressing the evidence of defendant's intoxication on methamphetamine and
alcohol. (See People v. Ervin, supra, 22 Cal.4th at p. 91, 91 Cal.Rptr.2d 623, 990
P.2d 506.) Because the absence of an instruction further defining voluntary
intoxication did not prejudice defendant, we also reject his contention that trial
counsel's failure to request CALJIC No. 4.22 violated his constitutional right to the
effective assistance of counsel.

4. CALJIC No. 2.90

While conferring with the trial court and the prosecutor on jury instructions,
defense counsel suggested a modification to CALJIC No. 2.90, the standard
instruction on presumption of innocence and reasonable doubt. The pattern
instruction in use during defendant's trial began, "A defendant in a criminal action
is presumed to be innocent until the contrary is proved." Defense counsel requested
that the word "until" be replaced by the word "unless" because, he argued, "`until'
is a word that presupposes that an event will happen and you are simply waiting for
that eventuality to occur, where the word `unless' more correctly defines the law."
The trial court declined to adopt the requested modification, opting instead to
follow the exact wording of CALJIC No. 2.90.[8]

Defendant renews the argument of his trial counsel by asserting that the standard
instruction read in his case impermissibly shifted the burden of proof in violation
of due process by suggesting to the jury that it will find him guilty and that he is
only presumed innocent until that time. Relying on dictionary definitions, he
contends that the term "unless" more accurately reflects the law and should replace
the word "until" in CALJIC No. 2.90.

The challenged portion of the instruction derives from section 1096, which
embodies "a cardinal rule of Anglo-American jurisprudence"—the presumption of
innocence and its corresponding burden of proving a defendant guilty beyond a
reasonable doubt. (People v. Morris (1968) 260 Cal. App.2d 848, 849-850, 67
Cal.Rptr. 566.) That provision states in pertinent part, "A defendant in a criminal
action is presumed to be innocent until the contrary is proved, and in case of a
reasonable doubt whether his or her guilt is satisfactorily shown, he or she is
entitled to an acquittal, but the 663*663 effect of this presumption is only to place
upon the state the burden of proving him or her guilty beyond a reasonable doubt."
(§ 1096, italics added.)
Although other language in the standard reasonable doubt instruction used at
defendant's trial has been strongly criticized by justices of both this court and the
United States Supreme Court (see People v. Freeman, supra, 8 [Cal.4th at pp. 525-
526, 34 Cal.Rptr.2d 558, 882 P.2d 249 (cone. opn. of Mosk, J.); id. at pp. 526-531,
34 Cal.Rptr.2d 558, 882 P.2d 249 (cone, opn. of George, J.); Victor v. Nebraska
(1994) 511 U.S. 1, 23, 114 S.Ct. 1239, 127 L.Ed.2d 583 (conc. opn. of Kennedy,
J.); id. at pp. 23-28, 114 S.Ct. 1239 (conc. opn. of Ginsburg, J.)), we find no
infirmity in the portion of CALJIC No. 2.90 defendant challenges here. Viewing
that language in context and with reference to the entire charge (People v. Wilson
(1992) 3 Cal.4th 926, 943, 13 Cal.Rptr.2d 259, 838 P.2d 1212), we conclude that
there is no reasonable likelihood that the jury in defendant's case would understand
the instruction to mean that to convict defendant, the state could sustain its burden
without proving his guilt beyond a reasonable doubt. Here, the instruction first
informed the jury that "a defendant in a criminal action is presumed to be innocent
until the contrary is proved" and that if there is a reasonable doubt as to his guilt,
he must be acquitted. The next sentence stated that the just-described presumption
of innocence "places upon the People the burden of proving him guilty beyond a
reasonable doubt." The jury was then provided a definition of reasonable doubt.
Contrary to defendant's argument, there is no reasonable likelihood that the jury
understood the disputed language to mean it should view defendant's guilt as a
foregone conclusion.

Defendant further argues that the part of CALJIC No. 2.90 defining the term
"reasonable doubt" must have confused the jurors because the references to "moral
evidence" and "moral certainty" invited them to convict him based on vague
notions of "morality" in violation of his rights to due process, fair trial,
fundamental fairness, and freedom from cruel and unusual punishment. He
acknowledges the definition of reasonable doubt used in his case survived a similar
constitutional attack in Victor v. Nebraska, supra, 511 U.S. 1, 114 S.Ct. 1239, 127
L.Ed.2d 583. Echoing the view of Justice Mosk in his concurring opinion in
People v. Freeman, supra, 8 Cal.4th 450, 526-528, 34 Cal.Rptr.2d 558, 882 P.2d
249, defendant asserts, however, that the time has come for a judicial rewriting of
the reasonable doubt instruction, since the Legislature has failed to act.

In Victor, the United States Supreme Court expressed the view that although the
terms "moral evidence" and "moral certainty" do not render the standard
instruction unconstitutional, they did not add anything of value. (Victor v.
Nebraska, supra, 511 U.S. at p. 14, 114 S.Ct. 1239.) Aware of the high court's
concerns, we strongly recommended in Freeman that trial courts modify CALJIC
No. 2.90 by omitting the references to moral evidence and moral certainty. (People
v. Freeman, supra, 8 Cal.4th at p. 504, fn. 9, 34 Cal. Rptr.2d 558, 882 P.2d 249.)
Thereafter, the Legislature amended section 1096 by adopting the wording
suggested in Freeman (Stats.1995, ch. 46, § 1, p. 95), and CALJIC No. 2.90 was
revised accordingly. Thus, the terms of which defendant here complains do not
appear in the standard instruction now in use.

(5. Failure to give CALJIC No. 8.83.1

The trial court instructed the jury in the language of CALJIC No. 2.02, on the
sufficiency of circumstantial evidence to prove 664*664 specific intent, and
CALJIC No. 8.83, on the sufficiency of circumstantial evidence to prove a special
circumstance generally.

Defendant faults the trial court for giving CALJIC No. 8.83 rather than a related
instruction, CALJIC No. 8.83.1, on the sufficiency of circumstantial evidence to
prove the specific intent necessary to prove a special circumstance. He argues that
because the prosecution's evidence in support of the special circumstance
allegation on this point was entirely circumstantial, the trial court was required to
give the more specific CALJIC No. 8.83.1 rather than the more general CALJIC
No. 8.83.

Although CALJIC No. 8.83.1 would have been an appropriate instruction in this
case, it was not required. As we explained in People v. Hines (1997) 15 Cal.4th
997, 64 Cal.Rptr.2d 594, 938 P.2d 388, both CALJIC Nos. 8.83 and 8.83.1 are
duplicative of a more general instruction, CALJIC No. 2.01, informing the jury
how to consider circumstantial evidence to prove guilt, and a trial court does not
err in refusing to give the pattern instructions pertaining more specifically to proof
of special circumstance allegations on this basis. (People v. Hines, supra, at pp.
1051-1052, 64 Cal.Rptr.2d 594, 938 P.2d 388.) Here, the trial court gave both
CALJIC No. 3.31, on the required union between act and specific intent, and
CALJIC No. 2.02, on the use of circumstantial evidence to prove specific intent
generally. The court was not required to provide a repetitive instruction informing
the jury, more specifically, how to evaluate circumstantial evidence of specific
intent as it relates to proving the special circumstance allegations.

Defendant further asserts his counsel was incompetent for not requesting CALJIC
No. 8.83.1. Although this instruction would have been appropriate, defendant's
claim of inadequate representation must fail because he cannot establish prejudice
from counsel's omission. Here, as noted, the trial court told the jury how to
evaluate circumstantial evidence generally and explained that the specific intent
with which an act is done may be shown by the circumstances surrounding the
commission of the act. (CALJIC Nos. 2.00, 2.02.) The court also instructed the
jury on the mental states required for both of the special circumstance allegations.
(CALJIC No. 8.81.7.) Immediately after this instruction, the court instructed the
jury how to consider circumstantial evidence in determining the truth of the special
circumstance allegations. (CALJIC No. 8.83.) These instructions substantially
covered for the jury how to evaluate circumstantial evidence of specific intent as it
related to special circumstances. The absence of a duplicative instruction
specifically linking the use of circumstantial evidence of specific intent to the
determination of the truth of the special circumstance allegations would not have
changed the outcome of defendant's trial. (See People v. Alvarez (1996) 14 Cal.4th
155, 220-221, 58 Cal.Rptr.2d 385, 926 P.2d 365; People v. Rodrigues, supra, 8
Cal.4th at pp. 1143-1144, 36 Cal.Rptr.2d 235, 885 P.2d 1.)

6. Failure to give unanimity instruction

The trial court instructed the jury that defendant could be convicted of first degree
felony murder based on a robbery or a burglary. Defendant complains the trial
court's failure to instruct the jury that it must unanimously agree he was guilty of
either robbery or burglary in order to convict him on a felony-murder theory
lightened the prosecution's burden of proof in violation of federal constitutional
principles.

665*665 It is well settled that, to properly convict, a jury must unanimously agree
that the defendant is guilty of the statutory offense of first degree murder beyond a
reasonable doubt, but it need not decide which of several proffered theories of first
degree murder liability governs the case. (People v. Santamaria (1994) 8 Cal.4th
903, 918, 35 Cal.Rptr.2d 624, 884 P.2d 81; People v. McPeters (1992) 2 Cal.4th
1148, 1185, 9 Cal.Rptr.2d 834, 832 P.2d 146; Schad v. Arizona (1991) 501 U.S.
624, 630-645, 111 S.Ct. 2491, 115 L.Ed.2d 555.) Defendant acknowledges that his
claim of instructional error is contrary to precedent but urges nonetheless that we
reconsider our earlier pronouncements. We have consistently rejected other
requests to reexamine the point (see People v. Carpenter, supra, 15 Cal.4th at pp.
394-395, 63 Cal.Rptr.2d 1, 935 P.2d 708; People v. Osband, supra, 13 Cal.4th at p.
688, 55 Cal.Rptr.2d 26, 919 P.2d 640), and defendant advances no persuasive
grounds for doing so here. In any event, the jury verdicts finding defendant guilty
of both robbery and burglary, and the jury's true findings on the robbery-murder
and burglary-murder special-circumstance allegations show that the jury
unanimously agreed defendant was guilty of first degree felony murder under both
of the prosecution's felony-murder theories. Thus, even if instructional error
occurred, it did not prejudice defendant. (People v. Carpenter, supra, at p. 395, 63
Cal.Rptr.2d 1, 935 P.2d 708.)

D. Inconsistent Verdicts

At the guilt phase of trial, the jury returned verdicts finding defendant guilty as
charged and finding to be true most, but not all, of the sentencing allegations
connected to the charged offenses.[9] Defendant points out that while the jury found
not true the allegation that he inflicted great bodily injury on Helen Rumsey in the
course of robbing her, it found true both the allegation that he inflicted great bodily
injury while attempting to murder her and the allegation that he inflicted great
bodily injury on her during the burglary of her apartment. He contends these
asserted inconsistencies in the verdicts establish that the jury was confused and
unable to apply the facts to the law in violation of state statutory and decisional law
and federal constitutional guarantees of fair trial, due process, reliable penalty
determination, and freedom from cruel and unusual punishment.[10]

666*666 We disagree that the jury verdicts are necessarily inconsistent. Based on
the evidence presented at trial, the jury reasonably could have concluded that the
robbery of Helen Rumsey occurred, not when defendant stabbed her but rather
when defendant threatened to shoot her with James Rumsey's gun if she did not
produce any money. The evidence permits the reasonable inference that defendant
formed the intent to steal from Helen Rumsey only after unsuccessfully searching
for money in James Rumsey's wallet. That the jury found defendant formed the
intent to steal from James Rumsey before he entered the Rumseys' apartment and
attacked him does not suggest the jury was confused about the requisite timing of
his specific intent to steal. There was evidence in the record from which both such
scenarios could reasonably be inferred.

Even if we were to view the jury's findings on the sentencing allegations in counts
3, 4, and 5 as inconsistent, however, defendant is not entitled to reversal on this
basis. It is well settled that, as a general rule, inherently inconsistent verdicts are
allowed to stand. (People v. Palmer (2001) 24 Cal.4th 856, 860-861, 103
Cal.Rptr.2d 13, 15 P.3d 234; People v. Santamaria, supra, 8 Cal.4th at p. 911, 35
Cal.Rptr.2d 624, 884 P.2d 81; People v. Polowicz (1992) 5 Cal.App.4th 1082,
1089, 7 Cal.Rptr.2d 640; People v. Pahl (1991) 226 Cal.App.3d 1651, 1656, 277
Cal.Rptr. 656.) The United States Supreme Court has explained: "[A] criminal
defendant ... is afforded protection against jury irrationality or error by the
independent review of the sufficiency of the evidence undertaken by the trial and
appellate courts. This review should not be confused with the problems caused by
inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by
the courts of whether the evidence adduced at trial could support any rational
determination of guilty beyond a reasonable doubt. [Citations.] This review should
be independent of the jury's determination that evidence on another count was
insufficient." (United States v. Powell (1984) 469 U.S. 57, 67, 105 S.Ct. 471, 83
L.Ed.2d 461.)

We have conducted an independent review of the record and, as more fully

discussed above, have determined there is sufficient evidence to support the
convictions and findings rendered in this case. Thus, even if we assume for
argument's sake that the jury verdicts were inconsistent, that conclusion does not,
of itself, warrant reversal.

Nor does the existence of inconsistent verdicts imply that the jury must have been
confused. (United States v. Martinez de Ortiz (7th Cir.1990) 907 F.2d 629, 636.)
An inconsistency may show no more than jury lenity, compromise, or mistake,
none of which undermines the validity of a verdict. (People v. Santamaria, supra,
8 Cal.4th at p. 911, 35 Cal.Rptr.2d 624, 884 P.2d 81; People v. Pahl, supra, 226
Cal.App.3d at p. 1656, 277 Cal.Rptr. 656.) Here, nothing in the record, other than
the asserted inconsistency in the verdicts, suggests that the jury did not understand
the principles governing the felony-murder doctrine. Contrary to defendant's
assertion, the jury's request for clarification on the attempted murder 667*667
charge does not suggest confusion about felony murder or the timing of defendant's
specific intent to steal. A close reading of the record discloses that the jurors were
unclear as to whether the felony-murder doctrine also applied to attempted murder
and, at defense counsel's suggestion, the trial court responded to the jury's question
by instructing that attempted murder requires a specific intent to kill.[11]

IV. PENALTY PHASE ISSUES

A. Admission of Evidence

1. Testimony about gun use during 1980 robbery

The prosecution presented testimony about a 1980 robbery of the proprietor of a

small Los Angeles liquor store. One witness, Officer Lee Smith, described
defendant's arrest for that crime and Smith's postarrest interview with defendant.
According to Smith, although he could not recall having mentioned to defendant
anything about a weapon before or during the interview, defendant stated at one
point, "I didn't have a knife and I didn't have a gun ... I'll be out of here in seventy-
two hours."
The prosecutor had intended to also call as a witness the victim of the robbery,
Kiro Horiuchi, but Horiuchi died before the penalty phase began. The prosecutor
therefore sought to admit Horiuchi's 1980 preliminary hearing testimony under
Evidence Code section 1291. After finding the witness unavailable, the trial court
considered defense hearsay and relevancy objections to the evidence. With respect
to relevancy, defense counsel pointed out that the transcript makes repeated
references to defendant's use of a gun, contrary to a specific "not true" finding by
the trial court on a firearm use allegation charged. Referring to the docket sheet in
the prior matter, counsel observed that the case apparently involved a court trial at
which the prosecution presented no evidence of gun use, and counsel noted that the
trial court made an express "not true" finding on the sentencing allegation. He
argued that because there was a "not true" finding on the gun use, the issue was not
relevant and the prosecutor should not be permitted to relitigate it.

The prosecutor challenged defense counsel's characterization of the prior

proceeding. Quoting from the minute order that reflected the trial court's "not true"
finding, the prosecutor pointed out that defendant's 1980 robbery conviction,
including the absence of evidence in support of the gun use allegation, was the
result of a plea bargain. As he noted, the minute order included the notation "DA
will not offer proof on [section] 12022.5, settlement is mid-term three years or less
with probation open up to five years." He argued further that the jury was entitled
to know the facts surrounding the prior violent incident, whether or not a
conviction was obtained.

The trial court agreed with the prosecutor and found that the 1980 robbery
conviction was the result of a plea bargain that included dropping the firearm-use
allegation. It further agreed that the details of an alleged crime of violence, whether
or not a conviction occurred, could be considered by the jury and that robbery, by
definition, is such a crime. The trial court then considered defense counsel's
objections to specific portions of the offered transcript and ordered one of the
668*668 witness's statements redacted to omit reference to a hearsay statement by
the witness's wife. Later, the prosecutor read the prior testimony to the jury. In that
testimony, the witness indicated that defendant had held a straw hat over some
object in his hand and had said, "I don't want to shoot you," leading the witness to
believe that defendant was holding a gun.[12]

Defendant acknowledges that under existing law evidence and testimony on the
facts underlying prior felony convictions and criminal activity is admissible at the
penalty phase of a capital trial. He points out, however, that principles of double
jeopardy and due process require exclusion of evidence of prior conduct if the
defendant was acquitted of charges based on that conduct. Because the trial court's
"not true" finding on the gun-use enhancement allegation was tantamount to an
acquittal, defendant argues, the references to gun use in the preliminary hearing
testimony were admitted in violation of state and federal double jeopardy
protections.

Section 190.3 permits the prosecution to present evidence of the facts surrounding
a capital defendant's prior felony convictions and violent criminal activity as part
of its case-in-aggravation at the penalty phase. (People v. Stanley (1995) 10 Cal.4th
764, 818-820, 42 Cal.Rptr.2d 543, 897 P.2d 481; People v. Benson (1990) 52
Cal.3d 754, 788, 276 Cal.Rptr. 827, 802 P.2d 330; People v. Melton (1988) 44
Cal.3d 713, 754, 244 Cal.Rptr. 867, 750 P.2d 741.) The statute also expressly
provides, however, that evidence of prior criminal activity "for an offense for
which the defendant was prosecuted and acquitted" is not admissible. (§ 190.3.) A
defendant has been "prosecuted and acquitted" for such purposes "where the falsity
of the charge had been judicially established." (People v. Bacigalupo (1991) 1
Cal.4th 103, 132, 2 Cal.Rptr.2d 335, 820 P.2d 559, judg. vacated and remanded on
other grounds sub nom. Bacigalupo v. California (1992) 506 U.S. 802, 113 S.Ct.
32, 121 L.Ed.2d 5.)

At the same time, however, an "acquittal" within the meaning of section 190.3 does
not include a bargained-for dismissal, and admission of the facts underlying such a
disposition, when it is presented in a later proceeding to determine the appropriate
penalty for a different offense, does not violate a capital defendant's right to due
process or the prohibition against double jeopardy. (People v. Rodrigues, supra, 8
Cal.4th at p. 1157, 36 Cal.Rptr.2d 235, 885 P.2d 1; People v. Melton, supra, 44
Cal.3d at pp. 755, 756, fn. 17, 244 Cal.Rptr. 867, 750 P.2d 741.) As we have
explained, there is nothing improper or unfair in permitting the jury at the penalty
phase of a capital trial to consider, in deciding whether death is the appropriate
penalty for a later offense, all relevant circumstances surrounding prior criminal
activity that was the subject of a plea bargain. (People v. Melton, supra, at p. 755,
244 Cal.Rptr. 867, 750 P.2d 741.)

Here, we will assume, without deciding, that the trial court's "not true" 669*669
finding on the gun use was a "`judicial determination with respect to the truth or
falsity of the charge'" (People v. Bacigalupo, supra, 1 Cal.4th at p. 131, 2 Cal.
Rptr.2d 335, 820 P.2d 559), barring its use at the penalty phase. Nonetheless, there
was no error in admitting the prior preliminary hearing testimony to show the
details and circumstances underlying the offense of which defendant was
convicted, namely, the robbery itself. Significantly, the victim did not testify that
he ever saw defendant holding a gun. Rather, the victim said defendant told him he
had a gun and did not want to shoot. Defendant's threat to use a possibly
nonexistent gun was thus a relevant circumstance underlying the robbery, which
involves the felonious taking of the victim's personal property from his person and
against his will by force or fear. (§ 211; see People v. Cain, supra, 10 Cal.4th at
pp. 70-71, 40 Cal. Rptr.2d 481, 892 P.2d 1224 [no error in admitting evidence of
acts constituting circumstances of simple battery where defendant had been
previously convicted of that offense as a lesser included offense of charged offense
of battery causing serious injury].)

Because the preliminary hearing testimony, including its references to defendant's

claimed possession of a gun, was admitted to show the circumstances relating to
the bargained-for robbery conviction, a proper consideration for the penalty jury
under section 190.3, factor (c), its admission did not violate the proscription
against double jeopardy. (People v. Bacigalupo, supra, 1 Cal.4th at pp. 134-135, 2
Cal.Rptr.2d 335, 820 P.2d 559; People v. Melton, supra, 44 Cal.3d at p. 756, fn.
17, 244 Cal.Rptr. 867, 750 P.2d 741.) Nor did its admission result in any
unfairness. (People v. Benson, supra, 52 Cal.3d at pp. 788-789, 276 Cal.Rptr. 827,
802 P.2d 330.) As noted, the evidence was limited to the facts supporting the prior
conviction and did not indicate that defendant had in fact used a gun in the
commission of that offense. (People v. Cain, supra, 10 Cal.4th at p. 71, 40
Cal.Rptr.2d 481, 892 P.2d 1224.) Moreover, the jury was informed of the "not
true" finding on the gun-use enhancement and heard testimony by the investigating
officer in the 1980 robbery case about his notation in the police report that
defendant's modus operandi appeared to be a "simulated gun."

Defendant urges this court to reconsider the holdings of our decisions permitting
introduction of evidence relating to the facts and circumstances underlying prior
felony convictions generally. In arguing that the admission of such evidence
constitutes a deprivation of the rights to due process, impartial jury, and reliable
capital penalty determination, he points to the United States Supreme Court's
decision in Taylor v. United States (1990) 495 U.S. 575, 110 S.Ct. 2143, 109
L.Ed.2d 607. There, the high court adopted a "formal categorical approach" to
determining whether a prior state court conviction qualified for purposes of
sentence enhancement under the federal Anti Drug Abuse Act of 1968 that
prohibited the federal district courts from looking beyond the record of the prior
conviction to determine the underlying facts and circumstances. (Taylor v. United
States, supra, at p. 600, 110 S.Ct. 2143.) We have in previous decisions repeatedly
rejected the identical argument that defendant raises here. (People v. Barnett
(1998) 17 Cal.4th 1044, 1178, 74 Cal.Rptr.2d 121, 954 P.2d 384; People v.
Stanley, supra, 10 Cal.4th at pp. 819-820, 42 Cal.Rptr.2d 543, 897 P.2d 481;
People v. Mayfield, supra, 5 Cal.4th at p. 190, fn. 7, 19 Cal.Rptr.2d 836, 852 P.2d
331; People v. Wader (1993) 5 Cal.4th 610, 656, fn. 8, 20 Cal.Rptr.2d 788, 854
P.2d 80; People v. Johnson (1992) 3 Cal.4th 1183, 1243, fn. 14, 14 Cal.Rptr.2d
702, 842 P.2d 670*670 1.) As we have explained, Taylor is distinguishable. The
statutory scheme established by section 190.3 "`involves wholly different
considerations than ordinary criminal sentencing' schemes" and "`properly allows
the jury to focus on the defendant's prior criminal conduct and propensity for
violence, factors deemed relevant as possible aggravating circumstances.'" (People
v. Mayfield, supra, at p. 190, fn. 7, 19 Cal.Rptr.2d 836, 852 P.2d 331.)

Defendant further contends he was placed "twice in jeopardy" within the meaning
of the federal Constitution's double jeopardy clause by the presentation of evidence
relating to the facts underlying a prior felony conviction, characterizing such
evidence as a retrial of the prior offense. We have previously considered and
rejected this contention, finding no double jeopardy bar to the presentation of the
details underlying a prior conviction at a later proceeding on the separate issue of
penalty for a subsequent offense. (People v. Osband, supra, 13 Cal.4th at p. 711,
55 Cal.Rptr.2d 26, 919 P.2d 640; People v. Sanders (1995) 11 Cal.4th 475, 543, 46
Cal.Rptr.2d 751, 905 P.2d 420; People v. Garceau (1993) 6 Cal.4th 140, 199-200,
24 Cal.Rptr.2d 664, 862 P.2d 664; People v. Bacigalupo, supra, 1 Cal.4th at pp.
134-135, 2 Cal.Rptr.2d 335, 820 P.2d 559.) So too have we previously considered
and rejected the more specific argument defendant presents, that Bullington v.
Missouri (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 compels the
conclusion he was again placed in jeopardy when the jury was permitted to
consider evidence of the 1980 robbery. (People v. Wharton (1991) 53 Cal.3d 522,
601-602, fn. 24, 280 Cal. Rptr. 631, 809 P.2d 290; People v. Melton, supra, 44
Cal.3d at p. 756, fn. 17, 244 Cal.Rptr. 867, 750 P.2d 741; People v. McDowell
(1988) 46 Cal.3d 551, 568, 250 Cal.Rptr. 530, 763 P.2d 1269.) In Bullington, the
United States Supreme Court held that double jeopardy protections prohibit the
state from seeking the death penalty on retrial after a trial court's granting of a new
trial motion where the jury had set the penalty at life imprisonment rather than
death. (Bullington v. Missouri, supra, at pp. 444-446, 101 S.Ct. 1852.) Here, by
contrast, no attempt has been made to prosecute or punish defendant anew for the
crime he committed in 1980. Bullington is not controlling. (People v. Wharton,
supra, at p. 602, fn. 24, 280 Cal.Rptr. 631, 809 P.2d 290.)

Because defendant advances no compelling reasons to reconsider our existing

precedents, we decline to do so.
In a different claim related to the evidence of the 1980 robbery, defendant asserts
he received constitutionally inadequate representation because defense counsel
failed to object to, or to seek a cautionary instruction on, a portion of Officer
Smith's testimony about defendant's postarrest statements. He contends more
specifically that the remark attributed to him, "I'll be out of here in seventy-two
hours," was not relevant to any statutory factor in aggravation and should have
been excluded.

We have long recognized that counsel's decision whether or not to object to

inadmissible evidence is a matter of trial tactics. (People v. Hayes, supra, 52
Cal.3d at p. 621, 276 Cal.Rptr. 874, 802 P.2d 376.) Because we accord great
deference to trial counsel's tactical decisions, counsel's failure to object rarely
provides a basis for finding incompetence of counsel. (People v. Kiel (2000) 22
Cal.4th 1153, 1185, 96 Cal.Rptr.2d 1, 998 P.2d 969; People v. Williams (1997) 16
Cal.4th 153, 215, 66 Cal.Rptr.2d 123, 940 P.2d 710.) Here, nothing in the record
suggests defense counsel lacked a rational tactical reason for not objecting to
Officer Smith's testimony. 671*671 (See People v. Pope (1979) 23 Cal.3d 412,
426, fn. 16, 152 Cal.Rptr. 732, 590 P.2d 859.) For example, counsel could
reasonably have viewed the officer's testimony as further support for the defense
position that defendant did not actually use a weapon during the robbery. We find
no incompetence on this record.

2. Failure to strike improper testimony

Prosecution witness Police Chief Nicholas of the Weed Police Department testified
he had investigated an incident on September 26, 1986, in which George Toombs
reported that defendant had shot a hole in the tire of Toombs's truck. When asked
whether defendant had offered an explanation, the witness responded, "As I recall,
he made a statement that he didn't have a firearm, he hadn't shot a gun or
something of that nature, that it was a firecracker." When the witness answered
"yes" to the prosecutor's next question asking whether defendant had also said
something about Toombs, defense counsel objected on relevancy grounds. After an
unreported sidebar conference, the trial court sustained defense counsel's objection.
The prosecutor asked no further questions of the witness.

A short time later, and outside the jury's presence, defense counsel clarified for the
record that at the bench he had objected to the testimony about defendant's
statements on the ground there was no evidence defendant had been advised of his
rights before speaking with the officer, as required by Miranda v. Arizona (1966)
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Counsel also noted for the record the
trial court had rejected his motion to exclude on that ground. When the court
reminded defense counsel it had sustained his objection to a portion of the
questioning about what the witness had heard defendant say about Toombs and
that the prosecutor had ceased his questioning altogether, defense counsel indicated
he had objected to the entire line of questioning and noted that some statements did
come in.

Defendant contends the trial court erred in failing to strike the question and answer
about defendant's statements explaining the September 26 incident. He asserts the
evidence was irrelevant because it was unrelated to any statutory factor in
aggravation under section 190.3. He argues that because the evidence portrayed
him as untruthful, it prejudiced the jurors against him and invited them to depart
from their "impartial fact-finding duty" in violation of his state and federal
constitutional rights to fair trial, due process, reliability of verdicts, and
fundamental fairness.

Respondent asserts defendant has failed to preserve his claim of error because
defense counsel did not object to the challenged testimony on relevancy grounds.
We find the record unclear. Although defense counsel initially objected to the
prosecution's question as irrelevant, he later clarified for the record that the trial
court had overruled his objection at the bench on Miranda grounds and noted that
his motion to exclude was denied by the trial court. Counsel's making a record of
the Miranda violation claim, however, does not foreclose the possibility he had
also argued irrelevancy as a basis for exclusion. Because the trial court sustained
the initial objection and the prosecutor ceased questioning, the record strongly
suggests defense counsel raised more than one ground for keeping the evidence
from the jury.[13]

672*672 In any event, we find no error. For purposes of section 190.3, "relevant
evidence" is evidence relevant to the specific factors set forth in that provision.
(People v. Boyd (1985) 38 Cal.3d 762, 773-774, 215 Cal.Rptr. 1, 700 P.2d 782.)
Section 190.3, factor (b) permits the jury to consider "[t]he presence or absence of
criminal activity by the defendant which involved the use or attempted use of force
or violence...." The factor of violent criminal activity encompasses not only the
existence of such activity but all the pertinent circumstances surrounding it (People
v. Ashmus, supra, 54 Cal.3d at p. 985, 2 Cal.Rptr.2d 112, 820 P.2d 214), and these
circumstances may be shown through testimonial evidence. (People v. Garceau,
supra, 6 Cal.4th at pp. 201-202, 24 Cal. Rptr.2d 664, 862 P.2d 664.)
Here, the prosecution presented evidence that in 1986 defendant approached his
former father-in-law George Toombs as he sat in his parked truck, shot the front
tire, and then threatened Toombs with a handgun through the driver's side window.
Toombs testified about the incident and, as previously noted, Police Chief Nicholas
testified about his investigation. Although defendant's statement to the police
denying his use of a gun is only marginally relevant to establishing that the crime
actually occurred beyond a reasonable doubt, it arguably pertains to the broader
circumstances surrounding the incident and was therefore admissible. Even if the
statement should have been excluded as irrelevant to any statutory factor in
aggravation, however, the prosecutor did not mention it again during summation
and the testimony constituted such a minor portion of the case-in-aggravation as to
render its admission harmless. (See People v. Medina, supra, 11 Cal.4th at pp. 765-
766, 47 Cal. Rptr.2d 165, 906 P.2d 2; People v. Brown (1988) 46 Cal.3d 432, 447,
250 Cal.Rptr. 604, 758 P.2d 1135.) For the same reason, we reject defendant's
claim that defense counsel was incompetent for not promptly objecting when the
prosecutor first inquired about defendant's statement. (People v. Medina, supra, at
p. 770, 47 Cal. Rptr.2d 165, 906 P.2d 2.)

3. Evidence of prior felony convictions

The prosecutor asked the trial court to admit into evidence at the penalty phase
certified copies of three documents from a Siskiyou County criminal prosecution in
which defendant pleaded guilty to the sale of methamphetamine, a felony under
Health and Safety Code section 11379. These documents were the information, a
minute order showing entry of the guilty plea, and a minute order entitled
"Judgment and Sentencing." Defense counsel objected to all three documents as
irrelevant, noting that the packet of documents did not contain a judgment or
sentencing order. Counsel pointed out that the document entitled Judgment and
Sentencing simply stated that defendant had not appeared 673*673 on the date set
for judgment and sentencing. As to this document, counsel argued that a
defendant's failure to appear is not a factor in aggravation; he also complained that
the prosecution had not given proper notice of the issue in its notice of evidence in
aggravation. With the prosecutor's assent, the trial court excluded the Judgment
and Sentencing document. After redacting the minute order showing the guilty plea
to omit reference to a misdemeanor charge, the trial court admitted that document
and the information into evidence.

Defendant contends all the evidence should have been excluded as inadmissible
hearsay. Because defense counsel objected to the challenged evidence on relevance
grounds, and not on hearsay grounds, however, defendant has not preserved the
issue. (Evid.Code, § 353; People v. Champion, supra, 9 Cal.4th at p. 918, 39
Cal.Rptr.2d 547, 891 P.2d 93.)

Even if properly before us, defendant's claim lacks merit. Contrary to his assertion,
the court documents were not offered to prove he committed the felony in
question. Rather, they were introduced to show he had suffered a prior felony
conviction, a factor in aggravation under section 190.3, factor (c). As we explained
in People v. Balderas (1985) 41 Cal.3d 144, 222 Cal.Rptr. 184, 711 P.2d 480,
evidence of a defendant's prior felony convictions is relevant to the penalty
determination because it demonstrates "that the capital offense was undeterred by
prior successful felony prosecutions." (Id. at p. 202, 222 Cal.Rptr. 184, 711 P.2d
480, italics omitted.) Because the evidence was properly admitted for this purpose,
we need not entertain defendant's request to reconsider the discussion in a
concurring opinion signed by five justices approving use of a prior conviction to
prove criminal activity involving force or violence under section 190.3, factor (b).
(People v. Ray (1996) 13 Cal.4th 313, 363-369, 52 Cal.Rptr.2d 296, 914 P.2d 846
(cone. opn. of George, C.J.).) Nor do we accept defendant's contention that the
state and federal Constitutions prohibit a jury from considering, as an aggravating
circumstance under factor (c), a prior conviction for a felony that did not involve
force or violence. We have previously considered and rejected this contention
(People v. Cain, supra, 10 Cal.4th at pp. 75-76, 40 Cal.Rptr.2d 481, 892 P.2d
1224), and defendant provides no compelling reason to reopen the question here.

B. Instructional Error Claims

1. Instruction on other criminal activity

At the penalty phase, the prosecution presented testimony and other evidence
relating to seven incidents of violent criminal activity. Andrew Greene and John
Rogers testified about one of them. According to their testimony, on November 28,
1986, defendant entered the Nightcap bar in Weed yelling obscenities and
threatening Greene's life. When defendant reached into his own coat, Rogers pulled
it off defendant's shoulders to reveal a holstered handgun that Rogers removed
before calling the police.

After the presentation of this evidence, the trial court met with counsel to discuss
jury instructions. The trial court said that it would give CALJIC No. 8.87 (1989
rev.) (5th ed.1988) on considering violent criminal activity as an aggravating
factor, and that it would include in that instruction a list of the criminal activity at
issue based on the allegations in the prosecution's notice of aggravating factors and
"consistent with what [it understood] to have been the evidence on the subject."
The trial court read the proposed instruction to counsel with no immediate
objection. The discussion 674*674 then moved to CALJIC No. 8.86 on the use of
prior felony convictions in aggravation. Counsel for both sides agreed with the trial
court's proposal to specify for the jury the two prior convictions at issue, one for
robbery in 1980 and the other for the sale of methamphetamine in 1987. At this
point, however, the trial court noted that on the list of violent criminal activity to
be included in CALJIC No. 8.87 was the incident involving the victim of the 1980
robbery, Kiro Horiuchi, and the court expressed its concern that the jury might be
led to double-count that evidence as both violent criminal activity and a prior
conviction. In response to the trial court's question whether it should strike the
reference to the robbery under the prior conviction instruction or strike the
allegation of force and violence on Kiro Horiuchi, defense counsel suggested that
the latter course would be appropriate. The trial court accepted the suggestion and
deleted the reference to the victim of the 1980 robbery in CALJIC No. 8.87. The
jury was instructed accordingly.[14]

Defendant contends the trial court's instruction was wrong because it omitted from
the list of incidents of violent criminal activity the allegation involving Andrew
Greene at the Nightcap bar. He argues the trial court's instruction failed to inform
the jury that it had to find that alleged incident to have occurred beyond a
reasonable doubt before it could consider it in aggravation, thus violating his
federal constitutional rights to due process, fair trial, trial by jury, and freedom
from cruel and unusual punishment.

In compiling its original list of the violent incidents the jurors could consider in
aggravation if they were convinced beyond a reasonable doubt the event in
question had occurred, the trial court relied on the allegations in the prosecution's
original notice of aggravating factors. The incident involving Greene was not
included in that notice but in a later-filed supplemental notice adding that incident
to the six listed on the original notice. But counsel for neither side brought the
oversight to the trial court's attention.

Respondent argues that because a trial court is under no obligation to specify for
the jury the violent criminal activity that could be considered (People v. Medina,
supra, 11 Cal.4th at pp. 770-771, 47 Cal.Rptr.2d 165, 906 P.2d 2), it was
incumbent on defense counsel to point out the omission of the Greene incident and
request 675*675 a more complete instruction on the subject. We agree. The
instruction as given was not erroneous, only incomplete, and "a party may not
complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language." (People v. Andrews (1989) 49 Cal.3d 200, 218,
260 Cal.Rptr. 583, 776 P.2d 285.)

In any event, there is no reasonable possibility the jury at the penalty phase
misunderstood the law about its consideration of unadjudicated criminal activity.
(People v. Kelly (1992) 1 Cal.4th 495, 525-526, 3 Cal.Rptr.2d 677, 822 P.2d 385.)
The trial court instructed the jury generally to "consider all of the evidence which
has been received during any part of the trial" and to be guided by the statutory
factors, including "[t]he presence or absence of criminal activity by the defendant
... which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence...." (CALJIC No. 8.85.) That instruction was
followed by CALJIC No. 8.87, which began with the agreed-upon listing of five
incidents of alleged violent criminal activity. The instruction continued: "Before a
juror may consider any of such alleged criminal activity as an aggravating
circumstance in this case, a juror must first be satisfied beyond a reasonable doubt
that the defendant did in fact commit such criminal activity. A juror may not
consider any evidence of any other crime as an aggravating factor." (Ibid., italics
added.) Given the charge, the jury may have understood it was not to consider the
Greene incident as a factor in aggravation because it was not "any of such alleged
criminal activity" recounted in the instruction. If so, the omission of the Greene
incident helped rather than harmed defendant. (People v. Riel, supra, 22 Cal.4th at
p. 1214, 96 Cal.Rptr.2d 1, 998 P.2d 969.) But even if the jury believed it could
consider evidence of the threat to Greene in the same manner as the other evidence
of violent criminal activity presented by the prosecution at the penalty phase, it
would also have understood that the incident could be used as a factor in
aggravation only on proof beyond a reasonable doubt, as the instruction directed.
Under either scenario, there is no reasonable likelihood the jury understood the
instructions to mean the Greene incident could be used as a factor in aggravation
whether or not the prosecution proved beyond a reasonable doubt that defendant
had engaged in that conduct. For the same reason, we reject defendant's claim that
counsel's failure to bring the oversight to the trial court's attention constitutes the
ineffective assistance of counsel.

In a related claim, defendant asserts the trial court erred when it failed to inform
the jury under CALJIC No. 8.87 that the evidence of defendant's 1980 robbery of
Kiro Horiuchi could not be considered in aggravation as violent criminal activity
unless it was proved beyond a reasonable doubt that defendant committed such act.
He contends that although the trial court instructed the jury that the evidence could
be considered for the purpose of showing defendant had suffered a prior conviction
for robbery, both the testimony adduced at trial and the prosecutor's closing
argument emphasized that the evidence supported a finding of defendant's use of
force and violence under section 190.3, factor (b). As respondent correctly points
out, however, defendant is barred from challenging the trial court's instruction
because the error, if any, was invited. As we have explained, "[t]he doctrine of
invited error bars defendant from challenging an instruction given by the trial court
when the defendant has made a 676*676 `conscious and deliberate tactical choice'"
to request the instruction. (People v. Lucero (2000) 23 Cal.4th 692, 723, 97 Cal.
Rptr.2d 871, 3 P.3d 248; People v. Cooper (1991) 53 Cal.3d 771, 831, 281
Cal.Rptr. 90, 809 P.2d 865.) Defense counsel made a deliberate, tactical choice
when, in response to the trial court's expression of concern over the possible
double-counting of the evidence concerning the 1980 robbery, he suggested the
reference to Kiro Horiuchi be removed from the list of alleged incidents of violent
criminal activity in CALJIC No. 8.87. Defendant cannot now complain of an
asserted deficiency resulting from a revision that defense counsel suggested.

2. Failure to instruct on elements of unadjudicated criminal activity

Defendant contends that when, as here, jurors are presented with evidence of
unadjudicated criminal acts under section 190.3, factor (b), and instructed that they
may consider such evidence in aggravation only after finding beyond a reasonable
doubt that the criminal acts occurred, it is error not to inform them also how the
alleged activity constitutes a crime. He notes that his trial counsel did not request
such instructions, but he asks us to reexamine our prior decisions holding, as a
general rule, that a trial court need not, on its own initiative, instruct on the
elements of unadjudicated criminal activity. Although defendant devotes a
considerable portion of his appellate brief to elaborating the grounds for his
challenge to the existing rule, we have previously considered and rejected each of
his arguments. Instructions to the jury on the elements of unadjudicated crimes are
not required by logic or by the constitutional guarantees of due process,
fundamental fairness, right to a fair trial, equal protection, or reliability of penalty.
(People v. Barnett, supra, 17 Cal.4th at p. 1175, 74 Cal.Rptr.2d 121, 954 P.2d 384;
People v. Osband, supra, 13 Cal.4th at p. 704, 55 Cal.Rptr.2d 26, 919 P.2d 640;
People v. Hardy (1992) 2 Cal.4th 86, 206-207, 5 Cal. Rptr.2d 796, 825 P.2d 781;
People v. Ghent (1987) 43 Cal.3d 739, 773, 239 Cal.Rptr. 82, 739 P.2d 1250.) Nor
does the state or federal Constitution require a defendant's personal waiver when,
for tactical reasons, counsel refrains from requesting that the trial court instruct the
jury on the elements of unadjudicated crimes. (People v. Barnett, supra, 17 Cal.4th
at p. 1175, 74 Cal.Rptr.2d 121, 954 P.2d 384; People v. Johnson (1993) 6 Cal.4th
1, 49, 23 Cal. Rptr.2d 593, 859 P.2d 673; People v. Cooper, supra, 53 Cal.3d at pp.
827-828, 281 Cal.Rptr. 90, 809 P.2d 865.)
Defendant contends trial counsel's failure to request jury instructions on the
elements of the unadjudicated criminal activity in his case constituted ineffective
assistance of counsel.

The rule imposing no duty on a trial court to instruct on the elements of crimes
offered as incidents of violent criminal activity under section 190.3, factor (b)
recognizes that "a defendant for tactical considerations may not want the penalty
phase instructions overloaded with a series of lengthy instructions on the elements
of ... other crimes, perhaps because he fears that such instructions could result in
the jury placing undue significance on such other crimes rather than on the central
question of whether he should live or die." (People v. Phillips (1985) 41 Cal.3d 29,
72, fn. 25, 222 Cal.Rptr. 127, 711 P.2d 423.) Here, in light of the number of prior
violent incidents the prosecution presented at the penalty phase, defense counsel
reasonably may have been concerned that instruction on the elements of the
various criminal activities would place undue focus on such crimes. (People v.
Hart (1999) 20 677*677 Cal.4th 546, 651, 85 Cal.Rptr.2d 132, 976 P.2d 683;
People v. Tuilaepa (1992) 4 Cal.4th 569, 592, 15 Cal.Rptr.2d 382, 842 P.2d 1142.)
Because the record fails to show defense counsel lacked any rational tactical
reason for not requesting instruction on the elements of the factor (b) crimes,
defendant has not established deficient performance by his counsel. (People v.
Pope, supra, 23 Cal.3d at p. 426, fn. 16, 152 Cal.Rptr. 732, 590 P.2d 859.)

3. Multiple use of term "circumstances"

Defendant contends the various uses of the term "circumstances" in the standard
jury instructions at the penalty phase misled and confused the jury, in violation of
the due process clause and other federal constitutional guarantees. He asserts that a
jury could confuse the special circumstances found true during the guilt phase with
the aggravating circumstances necessary for imposition of the death penalty,
particularly in a case such as his, in which the same evidence was used to prove
both special circumstances and aggravating circumstances.

Defendant's complaint appears to be with CALJIC No. 8.85, which directs the
penalty jury to take into consideration "[t]he circumstances of the crime of which
the defendant was convicted in the present proceeding and the existence of any
special circumstances found to be true." (See also § 190.3, factor (a).) If
defendant's argument is that the standard instructions at the penalty phase invite the
jury to artificially inflate the aggravating weight of the underlying offense by
considering the same evidence under more than one statutory factor in aggravation,
we have in prior decisions held that the standard instructions do not inherently
encourage such double-counting under section 190.3. (People v. Ayala (2000) 24
Cal.4th 243, 289, 99 Cal.Rptr.2d 532, 6 P.3d 193; People v. Barnett, supra, 17
Cal.4th at p. 1180, 74 Cal.Rptr.2d 121, 954 P.2d 384; People v. Sanchez (1995) 12
Cal.4th 1, 78, 47 Cal. Rptr.2d 843, 906 P.2d 1129; People v. Medina, supra, 11
Cal.4th at p. 779, 47 Cal.Rptr.2d 165, 906 P.2d 2.)

Nor does defendant point to anything in the record suggesting any possible
confusion by the jury in his case. Here, the prosecutor's closing argument
suggested how each piece of evidence fit under the specified statutory factors. He
also told the jury, in language similar to CALJIC No. 8.88, also given to the jury,
that it should not engage in a "mere mechanical counting of factors on each side of
an imaginary scale" and that, in determining which penalty is justified, it should
consider the totality of the aggravating circumstances with the totality of the
mitigating circumstances. In light of the prosecutor's remarks and the standard
instructions about the weighing of aggravating and mitigating circumstances given
in this case, we find no reasonable likelihood the jurors were misled or confused in
the manner defendant suggests. (People v. Ayala, supra, 24 Cal.4th at pp. 289-290,
99 Cal. Rptr.2d 532, 6 P.3d 193.)

C. Prosecutorial Misconduct

1. Comment on failure to present mitigating evidence

During closing argument, the prosecutor reviewed the various aggravating and
mitigating factors to be considered in determining penalty. In urging the jury to
find that the aggravating factors outweighed those in mitigation, the prosecutor
stated in relevant part: "I suggest to you that there is no evidence of that
[sympathetic] nature. I mean you can grope as you might but you haven't heard it
because it—it just does not—does not exist.... You have abundant evidence of
aggravating 678*678 factors, including the crime itself and the evidence you heard
during the penalty phase. I suggest to you, you have no evidence that would
mitigate the enormity or the gravity of this particular crime.... I suggest to you
there are no mitigating circumstances."

Defendant asserts the prosecutor's statements were an impermissible comment on

his failure to testify, in violation of Griffin v. California (1965) 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106.

Because defense counsel neither objected to the prosecutor's remarks on this or any
other basis, nor requested an admonition from the trial court to cure any perceived
harm, defendant's claim has not been preserved on appeal. (People v. Lucero,
supra, 23 Cal.4th at p. 719, 97 Cal.Rptr.2d 871, 3 P.3d 248.) It lacks merits in any
event.

Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited

from commenting directly or indirectly on an accused's invocation of the
constitutional right to silence. Directing a jury's attention to a defendant's failure to
testify at trial runs the risk of inviting the jury to consider the defendant's silence as
evidence of guilt. (Griffin v. California, supra, 380 U.S. at pp. 614-615, 85 S.Ct.
1229; People v. Frye, supra, 18 Cal.4th at p. 1019, 77 Cal.Rptr.2d 25, 959 P.2d
183.) The prosecutor is permitted, however, to comment on the state of the
evidence, "including the failure of the defense to introduce material evidence or to
call witnesses." (People v. Mincey (1992) 2 Cal.4th 408, 446, 6 Cal.Rptr.2d 822,
827 P.2d 388.)

Defendant asserts the prosecutor's reference to the nonexistence of mitigating

evidence was a comment on his failure to testify because it suggested that the only
person who could have provided such evidence, defendant, did not do so at the
penalty phase. This is a strained reading of the prosecutor's remarks. The
prosecutor did not impermissibly argue to the jury that the People's evidence was
uncontradicted or unrefated because defendant failed to take the witness stand.
(See, e.g., People v. Medina (1974) 41 Cal.App.3d 438, 459-60, 116 Cal.Rptr.
133.) The prosecutor's remarks were not directed, expressly or impliedly, at
defendant's invocation of the right to silence at the penalty phase. Rather, they
concerned the dearth of mitigating evidence, a proper subject for argument. (See
People v. Avena (1996) 13 Cal.4th 394, 443, 53 Cal.Rptr.2d 301, 916 P.2d 1000
[no error under Griffin v. California, supra, 380 U.S. 609, 85 S.Ct. 1229, 14
L.Ed.2d 106, where prosecutor merely pointed out lack of mitigating evidence
supported his argument that balance of aggravating and mitigating factors favored
sentence of death].) Nor is there a reasonable likelihood that the jury understood
the prosecutor's remarks as an improper comment on defendant's failure to testify
at the penalty phase. (People v. Mincey, supra, 2 Cal.4th at p. 446, 6 Cal.Rptr.2d
822, 827 P.2d 388.) Although defendant did not take the witness stand at the
penalty phase, he did testify in his own behalf during the guilt phase, and the jury
was given the standard instruction that its penalty determination was to be based on
all of the evidence received during the entire trial. Nothing in the prosecutor's
remarks suggested that defendant's testimony at the guilt phase could not be
considered as mitigating evidence for purposes of determining penalty. Given
defendant's testimony and the proper scope of the prosecutor's comments, we
conclude there was no Griffin error or other misconduct.
Defendant further contends the prosecutor's summation to the jury impermissibly
treated the absence of mitigating 679*679 factors as an aggravating factor, in
violation of People v. Davenport (1985) 41 Cal.3d 247, 221 Cal.Rptr. 794, 710
P.2d 861. Davenport cautioned prosecutors against arguing that the absence of
mitigating evidence should itself be considered a factor in aggravation because
such argument was likely to confuse the jury as to the proper meaning of
aggravation and mitigation under section 190.3. (People v. Davenport, supra, at
pp. 288-290, 221 Cal. Rptr. 794, 710 P.2d 861.) A prosecutor may, however,
properly point out to the jury the lack of evidence in support of a mitigating factor.
(People v. Bacigalupo, supra, 1 Cal.4th at p. 144, 2 Cal.Rptr.2d 335, 820 P.2d
559.)

Because defense counsel did not object to the prosecutor's remarks now being
challenged, the issue has not been preserved for appeal. (People v. Hines, supra, 15
Cal.4th at p. 1064, 64 Cal. Rptr.2d 594, 938 P.2d 388.) Even if properly before us,
the claim lacks merit. The prosecutor never stated or suggested that the
nonexistence of mitigating evidence was itself an aggravating factor. (Id. at p.
1063, 64 Cal.Rptr.2d 594, 938 P.2d 388.) Fairly read, and as previously discussed,
the prosecutor's remarks expressed the view that the evidence of aggravating
factors, coupled with the dearth of mitigating evidence, supported a penalty of
death over life imprisonment. There was no impropriety in the argument.

2. Argument unrelated to statutory factors

In reviewing the evidence for the jury during closing argument, the prosecutor
asserted that defendant's statements to an arresting officer in 1980 showed him to
be "con-wise" and manipulative. The prosecutor also recalled for the jury the
officer's testimony that after he had noticed track marks on defendant's arms and
started to examine them, defendant's personality changed from cooperative and
passive to abrasive. The prosecutor then characterized defendant's testimony at the
guilt phase as an attempt to manipulate the jury, stating, "We've got a man, ladies
and gentlemen, who has been violent and ..., when held accountable for his
conduct, has tried to manipulate the system."

Defendant asserts the prosecutor's argument was an attack on his personality and
character that was irrelevant to any of the statutory factors in aggravation and
therefore improper under the reasoning of People v. Boyd, supra, 38 Cal.3d 762,
215 Cal.Rptr. 1, 700 P.2d 782, and violative of his federal constitutional rights.
Because defense counsel neither objected to the prosecutor's remarks nor sought an
admonition, defendant's claim of error is not preserved for appellate review.
(People v. Smithey, supra, 20 Cal.4th at p. 998, 86 Cal.Rptr.2d 243, 978 P.2d
1171.) In any event, the claim lacks merit.

Section 190.3 provides: "[The jury] shall impose a sentence of death if [it]
concludes that the aggravating circumstances outweigh the mitigating
circumstances. If [it] determines that the mitigating circumstances outweigh the
aggravating circumstances [it] shall impose a sentence of confinement in the state
prison for a term of life without the possibility of parole." Thus, the law requires
the jury to decide the appropriate penalty "by a process of weighing the specific
factors listed in the statute." (People v. Boyd, supra, 38 Cal.3d at p. 773, 215 Cal.
Rptr. 1, 700 P.2d 782; see § 190.3, factors (a)-(k) [listing the relevant
considerations].) Because section 190.3, factor (k) refers to "any other
circumstance that extenuates the gravity of the crime" rather than to evidence
enhancing it, evidence of a defendant's background and good character 680*680 is
admissible to extenuate the crime, but the prosecutor may not offer evidence of a
defendant's bad character under this factor as part of its case-in-aggravation at the
penalty phase. (People v. Boyd, supra, at pp. 774-776, 215 Cal.Rptr. 1, 700 P.2d
782; see also People v. Edelbacher (1989) 47 Cal.3d 983, 1033, 254 Cal.Rptr. 586,
766 P.2d 1.) As we explained in Boyd, "[e]vidence of defendant's background,
character, or conduct which is not probative of any specific listed factor would
have no tendency to prove or disprove a fact of consequence to the determination
of the action, and is therefore irrelevant to aggravation." (People v. Boyd, supra, at
p. 774, 215 Cal.Rptr. 1, 700 P.2d 782.)

But this restriction affects only the admission of evidence. At the penalty phase of
a capital trial, a prosecutor is permitted to argue any reasonable inferences from
properly admitted evidence of a defendant's prior violent crime, even if such
inferences relate to the defendant's character as revealed in the prior violent crime
itself or in its surrounding circumstances. (People v. Avena, supra, 13 Cal.4th at p.
439, 53 Cal.Rptr.2d 301, 916 P.2d 1000.) Here, the prosecutor did not argue that
defendant's character was, in itself, an aggravating factor. Thus, we reject this
claim of prosecutorial misconduct in argument.

3. Lack of remorse

The prosecutor explained to the jurors during summation that they could consider
defendant's lack of remorse and argued that "[n]owhere in this trial did you see any
evidence of any remorse on his behalf." Defendant asserts the prosecutor's
comment was unrelated to any of the statutory factors enumerated in section 190.3
and therefore irrelevant. Because there was no timely objection to the remark or
request for admonition, defendant is precluded from now raising the issue. (People
v. Holt, supra, 15 Cal.4th at p. 691, 63 Cal.Rptr.2d 782, 937 P.2d 213.) Even if
defendant's claim was properly preserved for appellate review, however, it is
contrary to law. (Ibid, [no statutory bar to a logical comment on defendant's lack of
remorse].) As we have explained, "the presence or absence of remorse is a factor
`"universally" deemed relevant to the jury's penalty determination.'" (People v.
Marshall (1996) 13 Cal.4th 799, 855, 55 Cal.Rptr.2d 347, 919 P.2d 1280.) Here,
because the jury would not have understood the prosecutor's remarks as an
invitation to consider lack of remorse as a factor in aggravation, those remarks
were not improper. (People v. Mendoza, supra, 24 Cal.4th at p. 187, 99
Cal.Rptr.2d 485, 6 P.3d 150; People v. Proctor, supra, 4 Cal.4th at p. 545, 15
Cal.Rptr.2d 340, 842 P.2d 1100.)

Defendant acknowledges that we have consistently rejected claims of prosecutorial

misconduct based on a prosecutor's reference to the defendant's lack of remorse.
He argues, however, that his case is distinguishable from our prior decisions
because his trial counsel presented no testimony or other mitigating evidence at the
penalty phase. He points out that in People v. Beardslee (1991) 53 Cal.3d 68, 279
Cal.Rptr. 276, 806 P.2d 1311, we concluded that the prosecutor was entitled to
comment on defendant's lack of remorse after the defense had called three
witnesses at the penalty phase who testified on that subject. (Id. at p. 114, 279 Cal.
Rptr. 276, 806 P.2d 1311.) Here, defendant contends, the prosecutor's comment
infringed his constitutional rights not to present evidence and to remain silent.

Although defendant has identified a factual distinction between his case and some
of our decisions finding no misconduct in a 681*681 prosecutor's argument about
lack of remorse, our survey of the cases in this area indicates that the cited
difference is not significant. We have found no impropriety in a prosecutor's
reference to a lack of remorse even when the defense did not present penalty phase
evidence of the defendant's remorsefulness or argue that point as a reason for
imposing life imprisonment over death. (See People v. Bemore (2000) 22 Cal.4th
809, 855, 94 Cal. Rptr.2d 840, 996 P.2d 1152 [listing cases].) Indeed, we have
found no impropriety in a prosecutor's comment on the defendant's lack of remorse
in a case similar to this one. (People v. Stansbury (1993) 4 Cal.4th 1017, 1067-
1068, 17 Cal.Rptr.2d 174, 846 P.2d 756, revd. on another ground sub nom.
Stansbury v. California (1994) 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293.) In
Stansbury, as here, the defense presented no evidence at the penalty trial. (4
Cal.4th at p. 1062, 17 Cal.Rptr.2d 174, 846 P.2d 756.)
Defendant asks us to reconsider our holding permitting a prosecutor to comment
on lack of remorse in light of federal constitutional principles guaranteeing the
rights to remain silent, and to fair trial, due process, and a reliable penalty
determination. He advances no compelling reason for doing so, however. So long
as the prosecutor's argument does not amount to a direct or indirect comment on
the defendant's invocation of the right to silence at the penalty phase (People v.
Welch, supra, 20 Cal.4th at p. 763, 85 Cal.Rptr.2d 203, 976 P.2d 754; People v.
Crittenden, supra, 9 Cal.4th at p. 147, 36 Cal.Rptr.2d 474, 885 P.2d 887), it does
not violate constitutional principles. (See also People v. Bemore, supra, 22 Cal.4th
at pp. 854-855, 94 Cal.Rptr.2d 840, 996 P.2d 1152 [rejecting multipronged
constitutional attack on prosecutor's invocation of lack of remorse during closing
argument]; People v. Stansbury, supra, 4 Cal.4th at p. 1068, 17 Cal.Rptr.2d 174,
846 P.2d 756 [comment on lack of remorse does not violate Eighth Amendment].)

D. Ineffective Assistance of Counsel

In addition to the various claims of ineffective representation already discussed,

defendant complains of his counsel's inadequacy at the penalty phase for not
presenting any evidence in mitigation and delivering a meager closing argument
that offered no reasons for sparing his client's life.

"To establish a violation of the constitutional right to effective assistance of

counsel, a defendant must show both that his counsel's performance was deficient
when measured against the standard of a reasonably competent attorney and that
counsel's deficient performance resulted in prejudice to defendant in the sense that
it `so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.'" (People v. Kipp, supra, 18
Cal.4th at p. 366, 75 Cal.Rptr.2d 716, 956 P.2d 1169, quoting Strickland v.
Washington, supra, 466 U.S. at p. 686, 104 S.Ct. 2052.) We presume "counsel's
conduct falls within the wide range of reasonable professional assistance"
(Strickland v. Washington, supra, at p. 689, 104 S.Ct. 2052; People v. Earp, supra,
20 Cal.4th at p. 896, 85 Cal.Rptr.2d 857, 978 P.2d 15), and accord great deference
to counsel's tactical decisions. (People v. Frye, supra, 18 Cal.4th at p. 979, 77
Cal.Rptr.2d 25, 959 P.2d 183.) Because it is inappropriate for a reviewing court to
speculate about the tactical bases for counsel's conduct at trial (People v. Wilson,
supra, 3 Cal.4th at p. 936, 13 Cal.Rptr.2d 259, 838 P.2d 1212), when the reasons
for counsel's actions are not readily apparent in the record, we will not assume
constitutionally inadequate 682*682 representation and reverse a conviction unless
the appellate record discloses "`no conceivable tactical purpose'" for counsel's act
or omission. (People v. Hines, supra, 15 Cal.4th at p. 1065, 64 Cal.Rptr.2d 594,
938 P.2d 388, quoting People v. Diaz (1992) 3 Cal.4th 495, 558, 11 Cal.Rptr.2d
353, 834 P.2d 1171; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-
267, 62 Cal.Rptr.2d 437, 933 P.2d 1134 [if appellate record sheds no light on
reasons for counsel's action or omission, claim of ineffective assistance of counsel
more appropriately decided in habeas corpus proceeding].)

Defendant faults counsel for failing to present any evidence of his good character,
his history of mental illness, or his past difficulties, or to otherwise portray him as
a "human being with positive qualities." For example, he asserts, counsel knew
defendant had not eaten or slept in the days before the capital offense, knew his
client was homeless and had been ingesting drugs and alcohol, and was informed
defendant was trying to earn a living around the time of the crimes. But the
appellate record does not disclose the existence, availability, or relative weight of
such evidence. Nor does it suggest the reasons counsel may have had for declining
to present such evidence. On the record before us, defendant cannot establish either
incompetence of counsel or prejudice.[15] (People v. Bolin (1998) 18 Cal.4th 297,
345, 75 Cal.Rptr.2d 412, 956 P.2d 374; People v. Medina, supra, 11 Cal.4th at p.
773, 47 Cal.Rptr.2d 165, 906 P.2d 2; People v. Cudjo (1993) 6 Cal.4th 585, 634,
25 Cal.Rptr.2d 390, 863 P.2d 635; People v. Diaz, supra, 3 Cal.4th at p. 566, 11
Cal. Rptr.2d 353, 834 P.2d 1171.)

Nor can we conclude on this record that defense counsel's closing argument
amounted to inadequate representation. Counsel's argument was admittedly brief,
comprising only two pages of transcript. But "[t]he effectiveness of an advocate's
oral presentation is difficult to judge accurately from a written transcript, and the
length of an argument is not a sound measure of its quality." (People v. Cudjo,
supra, 6 Cal.4th at pp. 634-635, 25 Cal. Rptr.2d 390, 863 P.2d 635; see also People
v. Padilla, supra, 11 Cal.4th at p. 949, 47 Cal.Rptr.2d 426, 906 P.2d 388.)

Defendant asserts that counsel's failure to present any evidence, testimony, or

substantial argument necessarily resulted in an unreliable death verdict in violation
of his federal constitutional rights not only to the effective assistance of counsel,
but also to due process, fundamental fairness, and freedom from cruel and unusual
punishment. We have repeatedly stressed, however, that a defense counsel's failure
to present mitigating evidence at the penalty phase does not make the proceeding
unreliable in constitutional terms so long as (1) the prosecution has discharged its
burden of proof at both phases of trial consistently with the rules of evidence and a
constitutionally sound death penalty scheme; (2) the death verdict was rendered in
accordance with proper instructions and procedures; and (3) the penalty jury
considered the relevant mitigating 683*683 evidence, if any, that the defendant has
chosen to introduce. (People v. Bradford (1997) 15 Cal.4th 1229, 1372, 65 Cal.
Rptr.2d 145, 939 P.2d 259; People v. Stansbury, supra, 4 Cal.4th at p. 1063, 17
Cal.Rptr.2d 174, 846 P.2d 756; People v. Sanders (1990) 51 Cal.3d 471, 526, 273
Cal.Rptr. 537, 797 P.2d 561.) As our rejection of defendant's various claims of trial
error makes clear, the standard for a reliable and fair penalty determination has
been met in this case.

E. Constitutionality of California's Death Penalty Scheme

Defendant challenges the constitutionality of California's 1978 death penalty

scheme on numerous grounds, all of which we have rejected in earlier decisions.
We see no reason to reconsider those decisions here.

We have held:

There is no constitutional infirmity in permitting the use of the same facts to

sustain a first degree felony-murder conviction and a felony-murder special-
circumstance finding at the guilt phase, and to establish a factor in aggravation
under section 190.3, factor (a), at the penalty phase. (People v. Millwee, supra, 18
Cal.4th at pp. 164-165, fn. 35, 74 Cal.Rptr.2d 418, 954 P.2d 990; People v. Ray,
supra, 13 Cal.4th at p. 358, 52 Cal.Rptr.2d 296, 914 P.2d 846; see also People v.
Melton, supra, 44 Cal.3d at pp. 767-768, 244 Cal.Rptr. 867, 750 P.2d 741 [no
constitutional impediment in permitting penalty jury to separately consider more
than one felony-murder special circumstance under § 190.3, factor (a), even where
killing occurred during indivisible transaction with a single criminal intent].)

The admission of evidence of unadjudicated crimes at the penalty phase does not
deny a defendant due process or any other federal constitutional guarantee. (People
v. Jenkins, supra, 22 Cal.4th at p. 1054, 95 Cal.Rptr.2d 377, 997 P.2d 1044; People
v. Champion, supra, 9 Cal.4th at p. 950, 39 Cal.Rptr.2d 547, 891 P.2d 93; People
v. Bacigalupo (1993) 6 Cal.4th 457, 478, 24 Cal.Rptr.2d 808, 862 P.2d 808.)

California's death penalty sufficiently narrows the class of death-eligible

defendants. (People v. Mendoza, supra, 24 Cal.4th at pp. 191-192, 99 Cal.Rptr.2d
485, 6 P.3d 150; People v. Barnett, supra, 17 Cal.4th at p. 1179, 74 Cal.Rptr.2d
121, 954 P.2d 384; People v. Marshall (1990) 50 Cal.3d 907, 946, 269 Cal.Rptr.
269, 790 P.2d 676.)

The statutory factors in aggravation are not impermissibly vague or otherwise

improper. (People v. Lucero, supra, 23 Cal.4th at p. 741, 97 Cal.Rptr.2d 871, 3
P.3d 248; People v. Earp, supra, 20 Cal.4th at p. 899, 85 Cal.Rptr.2d 857, 978
P.2d 15; see Tuilaepa v. California (1994) 512 U.S. 967, 975-977, 114 S.Ct. 2630,
129 L.Ed.2d 750 [§ 190.3, factors (a) and (b) not unconstitutionally vague].)

Written findings by the penalty phase trier of fact are not constitutionally required.
(People v. Kraft (2000) 23 Cal.4th 978, 1078, 99 Cal.Rptr.2d 1, 5 P.3d 68; People
v. Rodriguez (1986) 42 Cal.3d 730, 777-779, 230 Cal.Rptr. 667, 726 P.2d 113.)
Nor does the federal Constitution demand that in order to return a verdict of death,
the penalty jury must find that sentence to be the appropriate penalty beyond a
reasonable doubt. (People v. Bemore, supra, 22 Cal.4th at p. 859, 94 Cal.Rptr.2d
840, 996 P.2d 1152; People v. Hayes, supra, 52 Cal.3d at p. 643, 276 Cal.Rptr.
874, 802 P.2d 376.)

Permitting the district attorney of each county the discretion to decide in which
cases to seek the death penalty does not amount, in and of itself, to a constitutional
violation. (People v. Earp, supra, 20 Cal.4th at p. 905, 85 Cal.Rptr.2d 857, 978
684*684 P.2d 15; People v. Ray, supra, 13 Cal.4th at p. 359, 52 Cal.Rptr.2d 296,
914 P.2d 846; People v. Keenan (1988) 46 Cal.3d 478, 505, 250 Cal.Rptr. 550, 758
P.2d 1081.) Defendant suggests that race played an improper role in the
prosecutor's charging decision in his case. Other than the bare fact defendant is
African-American and the victim was White, there is nothing in the appellate
record from which to infer that the prosecutor's decision to seek the death penalty
was racially motivated, and we decline to speculate on the matter.

Neither the state nor the federal Constitution requires us to conduct a

proportionality review of defendant's death sentence by comparing the facts of
defendant's case with those of other defendants not sentenced to death. (People v.
Lucero, supra, 23 Cal.4th at p. 741, 97 Cal.Rptr.2d 871, 3 P.3d 248 [no
constitutional obligation to perform intercase proportionality review]; People v.
Earp, supra, 20 Cal.4th at p. 905, 85 Cal.Rptr.2d 857, 978 P.2d 15; People v.
Crittenden, supra, 9 Cal.4th at pp. 155-156, 36 Cal.Rptr.2d 474, 885 P.2d 887.)
Defendant is entitled, on request, to intracase proportionality review under article I,
section 15 of the California Constitution to determine whether his sentence is
proportionate to his individual culpability. (People v. Riel, supra, 22 Cal.4th at pp.
1223-1224, 96 Cal.Rptr.2d 1, 998 P.2d 969; People v. Champion, supra, 9 Cal.4th
at p. 951, fn. 35, 39 Cal.Rptr.2d 547, 891 P.2d 93; People v. Bacigalupo, supra, 1
Cal.4th at pp. 151-152, 2 Cal.Rptr.2d 335, 820 P.2d 559.) Assuming defendant is
making such a request, we find imposition of the death penalty in this case is not so
disproportionate to his individual culpability as to warrant reversal of his sentence.
(See People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697
[in determining whether sentence amounts to cruel or unusual punishment,
reviewing court considers circumstances of offense and defendant's personal
characteristics].) We recognize that, as defendant points out, there was no finding
he intended to kill. But defendant killed an unarmed and unwary victim by
stabbing him in the neck during a robbery committed in the victim's own home. In
view of these circumstances, the penalty is not disproportionate. (People v.
Smithey, supra, 20 Cal.4th at pp. 1012-1013, 86 Cal.Rptr.2d 243, 978 P.2d 1171;
People v. Bacigalupo, supra, 1 Cal.4th at pp. 151-152, 2 Cal.Rptr.2d 335, 820 P.2d
559; People v. Lewis (1990) 50 Cal.3d 262, 285-286, 266 Cal.Rptr. 834, 786 P.2d
892; People v. Carrera (1989) 49 Cal.3d 291, 346, 261 Cal.Rptr. 348, 777 P.2d
121.)

Defendant faults his counsel for not objecting to the "triple use" of evidence
relating to his intent to steal and to the other asserted constitutional infirmities in
California's death penalty scheme defendant has raised on appeal. Defendant has
not made the requisite showing of both deficient performance by counsel and
prejudice resulting from counsel's omissions. As we have observed, rarely will the
failure to object establish incompetence of counsel, because the decision whether
to raise an objection is inherently tactical. (People v. Scott (1997) 15 Cal.4th 1188,
1223, 65 Cal.Rptr.2d 240, 939 P.2d 354.) Moreover, because we have declined
defendant's request to reconsider our previous decisions holding the challenged
aspects of California's death penalty law constitutional, defense counsel's failure to
raise the same arguments below did not prejudice defendant.

F. Cumulative Prejudice

Defendant contends the cumulative effect of the asserted errors resulted in a

miscarriage of justice warranting reversal of the judgment. In all but one instance,
685*685 we have rejected defendant's claims of error. When error did occur, we
found it was not prejudicial. Defendant was not deprived of his right to a fair trial
or a reliable penalty determination.

V. CONCLUSION

We affirm the judgment in its entirety.

GEORGE, C.J., BAXTER, J., WERDEGAR, J., CHIN, J., and BROWN, J.,
concur.

Concurring and Dissenting Opinion by MOSK, J.

I concur in the opinion of the court in all respects save one: I would vacate the
sentence of death as unreliable, in violation of both the cruel and unusual
punishments clause of the Eighth Amendment to the United States Constitution
and also the cruel or unusual punishment clause of article I, section 17 of the
California Constitution, because trial counsel—who would make practically no
argument at all to persuade the jury to spare appellant's life—introduced no
evidence whatsoever to serve as a basis for it to do so. (See People v. Bradford
(1997) 15 Cal.4th 1229, 1385, 65 Cal.Rptr.2d 145, 939 P.2d 259 (cone. & dis. opn.
of Mosk, J.) [implying that any sentence of death should be vacated as unreliable
under the Eighth Amendment and article I, section 17 if trial counsel introduced in
mitigation none of the available evidence]; People v. Avena (1996) 13 Cal.4th 394,
449-450, 53 Cal. Rptr.2d 301, 916 P.2d 1000 (dis. opn. of Mosk, J.) [same]; People
v. Lucas (1995) 12 Cal.4th 415, 501-502, 48 Cal.Rptr.2d 525, 907 P.2d 373 (cone.
& dis. opn. of Mosk, J.) [same]; In re Ross (1995) 10 Cal.4th 184, 216, fn. 1, 40
Cal.Rptr.2d 544, 892 P.2d 1287 (dis. opn. of Mosk, J.) [same]; People v. Stansbury
(1995) 9 Cal.4th 824, 835, 38 Cal.Rptr.2d 394, 889 P.2d 588 (cone. & dis. opn. of
Mosk, J.) [same], reiterating People v. Stansbury (1993) 4 Cal.4th 1017, 1074, 17
Cal.Rptr.2d 174, 846 P.2d 756 (cone. & dis. opn. of Mosk, J.), revd. sub nom.
Stansbury v. California (1994) 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (by
the court); People v. Diaz (1992) 3 Cal.4th 495, 577, 11 Cal.Rptr.2d 353, 834 P.2d
1171 (cone. & dis. opn. of Mosk, J.) [same]; see also People v. Howard (1992) 1
Cal.4th 1132, 1197, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (cone. & dis. opn. of Mosk,
J.) [finding a sentence of death unreliable under the Eighth Amendment and article
I, section 17 when trial counsel introduced in mitigation none of the available
evidence, albeit at the defendant's request]; People v. Sanders (1990) 51 Cal.3d
471, 531-533, 273 Cal.Rptr. 537, 797 P.2d 561 (dis. opn. of Mosk, J.) [same];
People v. Lang (1989) 49 Cal.3d 991, 1059-1062, 264 Cal.Rptr. 386, 782 P.2d 627
(cone. & dis. opn. of Mosk, J.) [same]; People v. Williams (1988) 44 Cal.3d 1127,
1158-1161, 245 Cal.Rptr. 635, 751 P.2d 901 (conc. & dis. opn. of Mosk, J.) [to
similar effect under the Eighth Amendment]; People v. Deere (1985) 41 Cal.3d
353, 360-368, 222 Cal.Rptr. 13, 710 P.2d 925 [same].)

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] Code of Civil Procedure section 232 provides in relevant part: "(a) Prior to the
examination of prospective trial jurors in the panel assigned for voir dire, the
following perjury acknowledgement and agreement shall be obtained from the
panel, which shall be acknowledged by the prospective jurors with the statement `I
do': [H] `Do you, and each of you, understand and agree that you will accurately
and truthfully answer, under penalty of perjury, all questions propounded to you
concerning your qualifications and competency to serve as a trial juror in the
matter pending before this court; and that failure to do so may subject you to
criminal prosecution.'"

[3] The trial court instructed the jury: "Evidence has been introduced for the
purpose of showing that the Defendant committed a crime other than that for which
he is on trial. [¶] Such evidence, if believed, was not received and may not be
considered by you to prove that Defendant is a person of bad character or that he
has a disposition to commit crimes. [¶] Such evidence was received and may be
considered by you only for the limited purpose of determining if it tends to show
the existence of the intent which is a necessary element of the crime charged. [¶]
For the limited purpose for which you may consider such evidence, you must
weigh it in the same manner as you do all other evidence in the case. [¶] You are
not permitted to consider such evidence for any other purpose."

[4] Defendant asserts that evidence of his intoxication, coupled with his testimony
that he was in fear when he entered the victims' apartment, supports a finding of
voluntary manslaughter based on unreasonable self-defense because it established
that he held an actual, albeit unreasonable, belief in the need to defend himself
against James Rumsey. But this argument is beside the point. The issue here is not
whether the evidence adduced at trial would support conviction of some lesser
offense but rather whether the record contains substantial evidence in support of
the conviction. As discussed above, we have determined that it does. (See People
v. Bean (1988) 46 Cal.3d 919, 933, 251 Cal. Rptr. 467, 760 P.2d 996 [evidence that
may be reconciled with finding of lesser degree of crime does not compel
reversal].)

[5] The appellate record does not include either defense counsel's argument in
support of the proposed instruction or the basis of the trial court's ruling refusing to
give it. Defendant contends, without elaboration, that this omission in the record
violates his constitutional rights to heightened reliability, due process, and
meaningful appellate review. The claim lacks merit. Because defendant fails to
explain how the state of the appellate record precludes this court from determining
whether the trial court's ruling constitutes error, he has not met his burden of
showing that the deficiencies have prejudiced him. (People v. Padilla (1995) 11
Cal.4th 891, 966, 47 Cal. Rptr.2d 426, 906 P.2d 388; People v. Osband (1996) 13
Cal.4th 622, 663, 55 Cal.Rptr.2d 26, 919 P.2d 640.)

[6] As given in this case, CALJIC No. 8.21 provides: "The unlawful killing of a
human being, whether intentional, unintentional or accidental, which occurs during
the commission or attempted commission of the crime of first degree robbery or
first degree burglary is murder of the first degree when the perpetrator had the
specific intent to commit the crime of first degree robbery or first degree burglary.
[¶] The specific intent to commit first degree robbery and the commission or
attempted commission of such crime must be proved beyond a reasonable doubt.
The specific intent to commit first degree burglary in the commission or attempted
commission of such crime must be proved beyond a reasonable doubt. The specific
intent required for first degree robbery and the specific intent required for first
degree burglary are contained in the definitions of those offenses."

Former CALJIC No. 9.40, as given in this case, provided: "Defendant is accused in
Count 2 and Count 4 of the crime of robbery. Every person who takes personal
property in the possession of another against the will and from the person or
immediate presence of that person accomplished by means of force or fear, and
with the specific intent permanently to deprive such person of property, is guilty of
the crime of robbery. In order to prove such crime each of the following elements
must be proved, [¶] One, a person had possession of property of some value,
however slight. [¶] Two, such property was taken from such person or from the
person's immediate presence. [¶] Three, such property was taken against the will of
such person, [¶] Four, the taking was accomplished either by force, violence, fear
or intimidation. [¶] And five, such property was taken with the specific intent to
permanently deprive such person of the property."

[7] The trial court read the following modified version of CALJIC No. 4.21: "In
the crime of robbery, burglary and attempted murder and the included or related
crime of theft, a necessary element is the existence in the mind of the defendant of
a certain specific intent, included in the definition of each crime. If the evidence
shows that the defendant was intoxicated at the time of the alleged crime from the
use of alcohol and drugs, you should consider that fact in determining whether the
defendant had such specific intent. If from all the evidence you have a reasonable
doubt whether the defendant formed such specific intent, you must find that he did
not have such specific intent."

[8] The jury was instructed: "A defendant in a criminal action is presumed to be
innocent until the contrary is proved. And in case of a reasonable doubt whether
his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This
presumption places upon the People the burden of proving him guilty beyond a
reasonable doubt. [11] Reasonable doubt is defined as follows. It is not a mere
possible doubt because everything relating to human affairs and depending on
moral evidence is open to some possible or imaginary doubt. It is that state of the
case which, after the entire comparison and consideration of all the evidence,
leaves the minds of the jurors in that condition that they cannot say they feel an
abiding conviction to a moral certainty of the truth of the charge."

[9] The jury returned these verdicts:

Count one: Guilty of first degree murder of James Rumsey with findings that the
murder was committed during the commission or attempted commission of a
robbery and a burglary and that defendant had personally used a knife. (§§ 187,
190.2, former subd. (a)(17)(i), (vii), 12022, subd. (b).)

Count two: Guilty of first degree robbery of James Rumsey with a finding that
defendant personally used a knife. (§§ 211, 12022, subd. (b).)

Count three: First degree burglary with a finding that defendant intentionally
inflicted great bodily injury on Helen Rumsey. (§§ 459, 12022.7.)

Count four: First degree robbery of Helen Rumsey, with findings that defendant
personally used a firearm but did not inflict great bodily injury. (§§ 211, 12022.5,
12022.7.)

Count five: Attempted murder of Helen Rumsey, with findings that defendant
personally used a knife, personally used a firearm, and intentionally inflicted great
bodily injury. (§§ 664/187, 12022, subd. (b), 12022.5, 12022.7.)

[10] As defendant explains, the jury found that he did not commit great bodily
injury during the robbery of Helen Rumsey even though the evidence showed the
stabbing took place before he took the money she handed him. According to
defendant, this finding establishes that the jury did not understand the critical issue
of the timing of defendant's formation of the intent to steal. He points to the jury's
mid-deliberations request for clarification on the attempted murder count as further
evidence of the jury's confusion on this point. The jury asked, "Is it attempted
murder if great bodily injury was inflicted during the course of a robbery?" Finally,
he argues, the jury's quandary over how to apply the facts to the law was
exacerbated by the trial court's refusal to give the pinpoint instruction requested by
defense counsel, discussed ante in part III.C.2., on the requisite temporal
relationship between the intent to steal and the killing.

[11] Defendant mistakenly relies on various statutes to support his assertion he is

entitled to reversal based on the alleged inconsistencies in the jury's findings. For
example, he cites section 1156, which describes the procedures the trial court is to
follow when the jury's first verdict is defective or inadequate. That situation is not
implicated here.

[12] The preliminary hearing testimony read to the jury states, in relevant part:

Question: "Would you tell the judge what [defendant] said to you?"

Answer: "He said, I have a gun, and I didn't believe him and I shoved the groceries
that someone else had towards him and I stated `get away.'"

Question: "When he said I had a gun, he was doing something with his hands?"

Answer: "He had it behind a big straw hat."

Question: "Did he tell you he had a gun?"

Answer: "Yes."

Question: "Did he hold his straw hat over some object he had in his hand?"

Answer: "Yes. He said `I don't want to shoot you.' Then I realized it must be a
gun."

[13] Defendant also asserts that the prosecution did not provide the requisite notice
that it would present evidence of defendant's statements to the Weed police. We
agree with respondent that defendant has not preserved this claim of error. Nothing
in the record indicates defense counsel objected to the evidence on this ground.
(People v. Hines, supra, 15 Cal.4th at p. 1059, 64 Cal.Rptr.2d 594, 938 P.2d 388;
People v. Medina (1995) 11 Cal.4th 694, 771, 47 Cal.Rptr.2d 165, 906 P.2d 2.) In
any event, the claim lacks merit because the notice was sufficient. (People v. Pride,
supra, 3 Cal.4th 195, 258, 10 Cal. Rptr.2d 636, 833 P.2d 643 ["the prosecutor is
not prevented from introducing all the circumstances of a duly noticed incident or
transaction simply because each and every circumstantial fact was not recited
therein"].)

Defendant makes a similar claim regarding admission of statements he made to the

officer who arrested him for the 1980 robbery in Southgate. This claim also fails
for lack of a specific objection at trial and because the notice provided was
sufficient.
[14] The trial court's instruction read: "Evidence has been introduced for the
purpose of showing that the defendant has committed the following criminal
activity which involved the express or implied use of force or violence, or the
threat of force or violence, to wit: [¶] That the defendant, by force and violence,
assaulted Beverly Armstrong on December 14, 1971, at Town and Imperial
Highway, Los Angeles, California. [¶] That the defendant, by force and violence,
assaulted Leon Johnson with a knife on February 9, 1985, at 413 California Street,
Weed, California. [¶] That the defendant, by force and violence, assaulted Willie
Bea Lewis (Shumlai) on January 20, 1986, at 603 Como Street, Weed, California.
[¶] That the defendant, by force and violence, assaulted Debra Swango on August
28, 1986, at 603 Como Street, Weed, California. [¶] That the defendant, by force
and violence, assaulted George Toombes [sic] with a firearm on September 26,
1986, at 175 North Weed Blvd., Weed, California. [¶] Before a juror may consider
any of such alleged criminal activity as an aggravating circumstance in this case, a
juror must first be satisfied beyond a reasonable doubt that the defendant did in
fact commit such criminal activity. A juror may not consider any evidence of any
other criminal activity as an aggravating circumstance. [¶] It is not necessary for all
jurors to agree. If any juror is convinced beyond a reasonable doubt that such
criminal activity occurred, that juror may consider that activity as a fact in
aggravation. If a juror is not so convinced, that juror must not consider that
evidence for any purpose."

[15] The three federal decisions defendant cites in support of his assertion that
counsel's failure to present mitigating evidence, coupled with a weak closing
argument, resulted in an unreliable death verdict are distinguishable. In each of
those cases, the issue of counsel's incompetence was raised in a petition for writ of
habeas corpus and was decided after a full evidentiary hearing on the question.
(Clabourne v. Lewis (9th Cir.1995) 64 F.3d 1373; Tyler v. Kemp (11th Cir.1985)
755 F.2d 741; King v. Strickland (11th Cir.1984) 748 F.2d 1462.) By contrast, to
find incompetence on the silent record before us would require us to engage in
speculation, which we decline to do. (See People v. Wrest (1992) 3 Cal.4th 1088,
1116, 13 Cal.Rptr.2d 511, 839 P.2d 1020.)
 54 Cal.3d 1103 (1991)

820 P.2d 588

2 Cal. Rptr.2d 364

THE PEOPLE, Plaintiff and Respondent,
v.
MANUEL DE JESUS SAILLE, Defendant and Appellant.
Docket No. S016721.

Supreme Court of California.

December 12, 1991.

1107*1107 COUNSEL

Richard L. Phillips, Mark E. Cutler and Bradley A. Bristow, under appointments

by the Supreme Court, for Defendant and Appellant.

Fiedler, Gardner & Derham, Cliff Gardner, Elaine A. Alexander, Martin Buchanan
and Madeline McDowell as Amici Curiae on behalf of Defendant and Appellant.

John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B.

Iglehart and George Williamson, Chief Assistant Attorneys General, Arnold O.
Overoye, Assistant Attorney General, Jane N. Kirkland, W. Scott Thorpe and Janet
Neeley Kvarme, Deputy Attorneys General, for Plaintiff and Respondent.

John J. Meehan, District Attorney (Oakland), Thomas J. Orloff, Chief Assistant

District Attorney, Kent S. Scheidegger and Charles L. Hobson as Amici Curiae on
behalf of Plaintiff and Respondent.

OPINION

PANELLI, J.

We granted review in this case to resolve a conflict among the Courts of Appeal
regarding the impact of legislation abolishing diminished capacity on the crime of
voluntary manslaughter. Specifically, the issue is whether the law of this state still
permits a reduction of what would otherwise be murder to nonstatutory voluntary
manslaughter due to voluntary intoxication and/or mental disorder.[1] In this case,
the Court of Appeal held that it does not. After careful examination of the relevant
statutes and legislative history, we agree.

Following a retrial, defendant was convicted of the first degree murder of

Guadalupe Borba (Pen. Code, § 187)[2] and the attempted murder of David Ballagh
(§§ 664/187). His earlier conviction for these crimes was reversed 1108*1108 on
appeal for Wheeler error (People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal. Rptr.
890, 583 P.2d 748]).

Facts

On November 30, 1985, defendant started drinking at a friend's house shortly

before noon. He had drunk 15 to 18 beers by about 6 o'clock that evening; he then
went to a bar and drank about 3 or 4 more beers. He was noticeably drunk when he
went to Eva's Cafe about 9 p.m. The bartender signalled the security guard, David
Ballagh, to ask defendant to leave. Ballagh told defendant he could not drink there
because he appeared intoxicated and asked defendant to leave; defendant did so.
Defendant returned about an hour later, but was reminded by Ballagh that he could
not come in. Defendant left but returned again around 11 p.m. and was rebuffed
once again by Ballagh. As he left he said to Ballagh, "I'm going to get a gun and
kill you."

Defendant went home around 1 a.m., got his rifle (a semiautomatic assault rifle),
and returned to the bar. As he entered the bar, defendant said to Ballagh, "I told
you I would be back." Ballagh tried to grab the rifle; it discharged and killed a
patron. Defendant was eventually subdued outside the bar; both he and Ballagh
were shot during the struggle.

A blood sample taken from defendant about two hours later showed a blood-
alcohol level of .14 percent. Expert testimony at trial established that the level
would have been about .19 percent at the time of the shooting.

Contentions

Defendant contends the court's instructions on the effect of voluntary intoxication

were inadequate. The court gave CALJIC No. 4.21, stating that voluntary
intoxication could be considered in determining whether defendant had the specific
intent to kill. The court instructed on first and second degree murder and voluntary
and involuntary manslaughter. (1a) It did not, however, relate voluntary
intoxication to anything other than the specific intent to kill. Defendant contends
the instructions were insufficient because they did not tell the jury that voluntary
intoxication, like heat of passion upon adequate provocation, could negate express
malice and reduce what would otherwise be murder to voluntary manslaughter.
Defendant also contends that the court should have instructed sua sponte that the
jury could consider his voluntary intoxication in determining whether he had
premeditated and deliberated the murder. Defendant further contends that the
instructions on involuntary manslaughter improperly required a showing of
unconsciousness.

1109*1109 In rejecting these contentions, the Court of Appeal based its reasoning
on the legislative enactments that (1) abolished diminished capacity and (2)
clarified the definition of malice aforethought. Accordingly, before we can
properly assess the correctness of the Court of Appeal's interpretation of the
legislation, we review the historical development of the doctrine of diminished
capacity.

The first step in the development of the diminished capacity doctrine was taken in
People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53]. (See People v. Wetmore
(1978) 22 Cal.3d 318, 323 [149 Cal. Rptr. 265, 583 P.2d 1308].) In Wells the
defendant, a life-term prisoner, was charged with assault on a prison guard, which
was a capital offense if done with malice aforethought. The defendant contended
he did not act with malice aforethought because he was reacting to an honest but
unreasonable fear of bodily harm. He sought to introduce psychiatric testimony at
the guilt phase to show that he was suffering from an abnormal physical and
mental condition that caused him to fear for his personal safety in response to even
slight external stimuli. We held that the trial court erred in excluding the proffered
evidence. We explained: "Evidence which tends to show legal insanity ... is not
admissible at the first stage of the trial because it is not pertinent to any issue then
being litigated; but competent evidence, other than proof of sanity or insanity,
which tends to show that a (then presumed) legally sane defendant either did or did
not in fact possess the required specific intent or motive is admissible." (Wells,
supra, 33 Cal.2d at p. 351, italics added.)

The next step was taken in People v. Gorshen (1959) 51 Cal.2d 716 [336 P.2d
492]. Gorshen, a longshoreman, reported to work intoxicated and was told by his
foreman to go home. After Gorshen refused to leave, the two men fought briefly.
The fight ended when the foreman knocked Gorshen to the ground. Gorshen
announced that he was going to go home, get his gun, return, and kill the foreman.
Gorshen went home, cleaned and loaded his gun, returned to the docks, and killed
the foreman. In addition to introducing evidence of his intoxication, Gorshen
introduced psychiatric testimony that he was suffering from a mental disease at the
time of the killing. The psychiatrist described the effect of the disease and
concluded that Gorshen did "`not have the mental state which is required for
malice aforethought or premeditation or anything which implies intention,
deliberation or premeditation.'" (Id., at p. 723.) The trial court found Gorshen
guilty of second degree murder. The court relied on the psychiatrist's testimony to
reduce the murder to second degree, but found there was malice aforethought.

Citing People v. Wells, supra, 33 Cal.2d 330, we upheld the admission of the
psychiatric evidence, as it was evidence of defendant's mental infirmity 1110*1110
short of insanity that tended to prove the defendant did not have the necessary
specific mental state to commit first degree murder. (Gorshen, supra, 51 Cal.2d at
p. 726.) In so doing, we opened the door for diminished capacity, since we
permitted expert evidence "not as a `complete defense' negating capacity to
commit any crime but as a `partial defense' negating [a] specific mental state
essential to a particular crime." (Id., at p. 727.) Moreover, we recognized that
murder could be reduced to manslaughter, not only on the statutory basis of the
reasonable person objective standard of provocation (§ 192), but also on the
subjective standard of defendant's voluntary intoxication or mental impairment. (51
Cal.2d at pp. 731-733.)

In People v. Conley (1966) 64 Cal.2d 310 [49 Cal. Rptr. 815, 411 P.2d 911] we
applied the Gorshen-Wells principles to reverse the defendant's conviction of two
counts of first degree murder. The defendant shot and killed his former girlfriend
and her husband. He testified that he did not intend to kill the victims and that he
did not remember anything from the time he was drinking at his sister's house until
the time of his arrest shortly after the shooting. His blood-alcohol level was .21
percent three hours after the shooting. We held that the trial court erred in refusing
to give voluntary manslaughter instructions based on the defendant's diminished
capacity as a result of voluntary intoxication. We concluded that the statutory
limitation of voluntary manslaughter to homicides caused by adequate provocation
(§ 192) was not exclusive: "[S]ince the statute [§ 192] had been enacted before the
concept of diminished capacity had been developed, its enumeration of
nonmalicious criminal homicides did not include those in which the lack of malice
results from diminished capacity." (Conley, supra, at p. 318.) As a result, malice
aforethought could be negated by showing that a person who intentionally killed
was incapable of harboring malice aforethought because of a mental disease or
defect or intoxication. (Ibid.) To explain how diminished capacity negated malice,
we redefined and expanded the mental component of malice aforethought beyond
that stated in section 188[3] to include a requirement that the defendant was able to
comprehend the duty society places on all persons to act within the law, i.e., that he
had an "awareness of the obligation to act within the general body of laws
regulating society." (Id., at p. 322.) Pursuant to this definition, we concluded that
someone who is unable, because of intoxication or mental illness, to comprehend
his duty to govern his actions in accord with the duty imposed by law, cannot act
with malice aforethought.

1111*1111 In People v. Poddar (1974) 10 Cal.3d 750 [111 Cal. Rptr. 910, 518
P.2d 342] we put the final gloss on the definition of malice aforethought. There, in
the context of implied malice, we added the requirement that the defendant, even if
aware of his duty to act in accordance with the law, also be able to act in
accordance with that duty. (Id., at p. 758.)

Finally, in People v. Wetmore, supra, 22 Cal.3d 318, we addressed the kind of

evidence admissible on the issue of defendant's mental state. We held that evidence
which tended to show a defendant could not form the requisite mental state is
admissible in the guilt phase even though the evidence is also probative of insanity.
In so doing, we rejected dictum in People v. Wells, supra, 33 Cal.2d 330, that
evidence tending to show lack of mental capacity to commit the crime because of
insanity was inadmissible at the guilt phase of trial. (People v. Wetmore, supra, 22
Cal.2d at p. 323.) We observed that our holding would result in the duplication of
evidence presented at the legislatively mandated bifurcated trial on guilt and
insanity. We therefore urged the Legislature to reconsider the wisdom of the
statutes providing for bifurcated trial. (Id., at p. 331.)

In response to our request, the Joint Committee for Revision of the Penal Code
held two public hearings on the subject of psychiatric evidence and the defenses of
diminished capacity and insanity. These hearings led to the introduction of Senate
Bill No. 54, 1981-1982 Regular Session, to abolish the defense of diminished
capacity. (Comment, Admissibility of Psychiatric Testimony in the Guilt Phase of
Bifurcated Trials: What's Left After the Reforms of the Diminished Capacity
Defense? (1984) 16 Pacific L.J. 305, 316-318.) After substantial amendment,
Senate Bill No. 54 was enacted into law in September 1981. (Stats. 1981, ch. 404,
pp. 1591-1592.)[4]

Senate Bill No. 54 added to the Penal Code sections 28 and 29, which abolished
diminished capacity and limited psychiatric testimony. It amended section 22 on
the admissibility of evidence of voluntary intoxication, section 188 on the
definition of malice aforethought, and section 189 on the definition of
premeditation and deliberation.[5] Other sections not relevant here were also
amended.
(2) Section 28, subdivision (a) provides in pertinent part that evidence of mental
illness "shall not be admitted to show or negate the capacity to form 1112*1112
any mental state," but is "admissible solely on the issue of whether or not the
accused actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime is charged." (Italics
added.) Subdivision (b) of section 28 abolishes the defenses of diminished
capacity, diminished responsibility, and irresistible impulse "as a matter of public
policy."

Section 29 provides that any expert testifying in the guilt phase of a criminal action
"shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to whether the
defendant had or did not have the required mental states shall be decided by the
trier of fact."

Section 22 was amended to reflect the abolition of diminished capacity. It provides

that evidence of voluntary intoxication is not admissible to negate the capacity to
form any mental state, but it is admissible "solely on the issue of whether or not the
defendant actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime is charged."

A provision abolishing the defense of diminished capacity was also included in the
initiative measure adopted in June 1982 and known as Proposition 8. Section 25
was added to the Penal Code as part of Proposition 8. Subdivision (a) of section 25
provides: "The defense of diminished capacity is hereby abolished. In a criminal
action, as well as any juvenile court proceeding, evidence concerning an accused
person's intoxication, trauma, mental illness, disease, or defect shall not be
admissible to show or negate capacity to form the particular purpose, intent,
motive, malice aforethought, knowledge, or other mental state required for the
commission of the crime charged."

Although there was initially some confusion about the interaction between section
25, subdivision (a) and section 28 (People v. Spurlin (1984) 156 Cal. App.3d 119,
128 [202 Cal. Rptr. 663]), courts and commentators now appear to agree that the
two sections are complementary and that both statutes remain operative. (See 1
Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, § 211, pp. 241-243;
People v. McCowan (1986) 182 Cal. App.3d 1, 11-13 [227 Cal. Rptr. 23]; People
v. Young (1987) 189 Cal. App.3d 891, 904-905 [234 Cal. Rptr. 819].)
Scope of Voluntary Manslaughter

(1b) Defendant argues that the new legislation did not limit the ability of an
accused to reduce an intentional killing to voluntary manslaughter as a 1113*1113
result of mental illness or voluntary intoxication. He relies primarily on People v.
Molina (1988) 202 Cal. App.3d 1168 [249 Cal. Rptr. 273].

In Molina, a psychotic mother, who was experiencing auditory hallucinations,

strangled and killed her 18-month-old son and set fire to the house. The trial court
refused requested instructions on the lesser offenses of voluntary and involuntary
manslaughter. The defendant was convicted of second degree murder and found
not guilty by reason of insanity. The Court of Appeal reversed.

The Molina court reviewed sections 25, 28, and 29, noting that the statutory
language provides that "evidence of mental problems is inadmissible to show that a
defendant lacked the capacity to form the requisite mental state, but is admissible
to show that the defendant actually lacked the requisite mental state." (202 Cal.
App.3d at p. 1173.) From this the court concluded: "The inclusion of the language
in subdivision (a) [of section 28] regarding actual formation of mental states shows
that the Legislature did not foreclose the possibility of a reduction from murder to
voluntary manslaughter where malice is lacking due to mental illness, or a further
reduction to involuntary manslaughter where intent to kill is not present for the
same reason." (Id., at p. 1174.)

We are unpersuaded by defendant's reliance on Molina, supra, 202 Cal. App.3d

1168, since the court's analysis failed to consider the effect on the definition of
malice of the amendment to section 188, which was part of the same legislative
package as sections 25, 28, and 29.

(3) Section 188, as amended by Senate Bill No. 54 (see fn. 5, ante), now provides:
"Such 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. [¶] When it is shown
that the killing resulted from the intentional doing of an act with express or implied
malice as defined above, no other mental state need be shown to establish the
mental state of malice aforethought. Neither an awareness of the obligation to act
within the general body of laws regulating society nor acting despite such
awareness is included within the definition of malice." (Italics added.)
The first sentence of the underscored passage limits malice to the definition set
forth in section 188. This sentence clearly provides that once the trier of fact finds
a deliberate intention unlawfully to kill, no other mental state need be shown to
establish malice aforethought. Whether a defendant acted with a wanton disregard
for human life or with some antisocial motivation is 1114*1114 no longer relevant
to the issue of express malice. (People v. Stress (1988) 205 Cal. App.3d 1259,
1267-1268 [252 Cal. Rptr. 913].) No doubt about this conclusion is possible when
the last sentence of section 188 is analyzed. That sentence directly repudiates the
expanded definition of malice aforethought in People v. Conley, supra, 64 Cal.2d
310, and People v. Poddar, supra, 10 Cal.3d 750, that express and implied malice
include an awareness of the obligation to act within the general body of laws
regulating society and the capability of acting in accordance with such awareness.
After this amendment of section 188, express malice and an intent unlawfully to
kill are one and the same.[6] (People v. Stress, supra, 205 Cal. App.3d at p. 1268.)

Pursuant to the language of section 188, when an intentional killing is shown,

malice aforethought is established. Accordingly, the concept of "diminished
capacity voluntary manslaughter" (nonstatutory manslaughter) recognized in
Conley, supra, 64 Cal.2d 310, is no longer valid as a defense.

However, while retreating from the Conley/Poddar definition of malice

aforethought, the Legislature left unchanged the definition of voluntary
manslaughter in section 192. Indeed, that definition has not changed since section
192 was first enacted in 1872. Section 192 defines voluntary manslaughter as the
"unlawful killing of a human being without malice ... [¶] ... upon a sudden quarrel
or heat of passion." Thus, pursuant to the language of section 188, when an
intentional killing is shown, malice aforethought is established. Section 192,
however, negates malice when the intentional killing results from a sudden quarrel
or heat of passion induced by adequate provocation.

Defendant disagrees. Relying on the language in section 188 that requires for
express malice a "deliberate intention unlawfully" to take a life, he argues that
express malice requires more than mere intent to kill. We find the Court of
Appeal's reasoning to the contrary in People v. Bobo[*] (1990) 229 Cal. App.3d
1417, 1440-1441 [271 Cal. Rptr. 277], persuasive: "From the time it was enacted
in 1872, section 188 has stated that malice is express `when there is manifested a
deliberate intention unlawfully' to kill. One might argue that the word `deliberate'
has a significance in the distinction between murder and manslaughter. That
argument would be mistaken. 1115*1115 As noted in In re Thomas C. (1986) 183
Cal. App.3d 786, 796-797 [228 Cal. Rptr. 430]: `In People v. Valentine (1946) 28
Cal.2d 121 [169 P.2d 1], our Supreme Court pointed out that it was "incorrect [to
differentiate] manslaughter from murder on the basis of deliberate intent....
Deliberate intent ... is not an essential element of murder, as such. It is an essential
element of one class only of first degree murder and is not at all an element of
second degree murder." (Id., at pp. 131-132; [citations].) Indeed, the standard
CALJIC instruction (No. 8.11 (1983 rev.)) has been held to be a correct definition
of express malice aforethought, despite the fact that it does not use the word
"deliberate" as used in Penal Code section 188, but merely states that "[m]alice is
express when there is manifested an intention unlawfully to kill a human being."
(CALJIC No. 8.11.) In short, "deliberate intention," as stated in Penal Code section
188, merely distinguishes "express" from "implied" malice, whereas premeditation
and deliberation is one class of first degree murder.' (See also People v. Van Ronk,
supra, 171 Cal. App.3d at p. 824.)

"Moreover, as defined in cases predating Conley and Conley's foundational pillars

— People v. Wells (1949) 33 Cal.2d 330, and People v. Gorshen (1959) 51 Cal.2d
716 — the concept of malice aforethought was manifested by the doing of an
unlawful and felonious act intentionally and without legal cause or excuse. (People
v. Balkwell (1904) 143 Cal. 259, 263 [76 P. 1017]; People v. Fallon (1906) 149
Cal. 287, 289-290 [86 P. 689]; People v. Coleman (1942) 50 Cal. App.2d 592, 596
[123 P.2d 557]; see also People v. Bender (1945) 27 Cal.2d 164, 181 [163 P.2d 8].)
The adjective `deliberate' in section 188 consequently implies an intentional act
and is essentially redundant to the language defining express malice.

"The adverb `unlawfully' in the express malice definition means simply that there
is no justification, excuse, or mitigation for the killing recognized by the law.
(People v. Stress, supra, 205 Cal. App.3d at p. 1268.)"

(4) We still must reconcile the narrowed definition of malice aforethought in

section 188 with the language of sections 22, subdivision (b) and 28, subdivision
(a). These latter sections make evidence of voluntary intoxication and mental
illness admissible solely on the issue of whether the accused "actually formed a
required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged."

Molina had relied on the reference to malice aforethought in section 28,

subdivision (a) to conclude that the Legislature had not foreclosed the possibility
of a reduction of murder to voluntary manslaughter where malice is lacking due to
mental illness or intoxication. (People v. Molina, supra, 202 Cal. App.3d at p.
1174.) As previously stated, however, the Molina analysis 1116*1116 did not
consider the effect of the Legislature's amendment of the definition of malice in
section 188.

As the Court of Appeal noted in People v. Bobo, supra, 229 Cal. App.3d at page
1442, "section 28, subdivision (a), is a general statute covering all specific intent
crimes. Leeway in the language is needed to ensure such coverage. Moreover,
malice aforethought can be either express or implied. Nothing is generalized about
the definition of express malice in section 188 and no leeway in the language is
needed for that precise definition. Furthermore, evidence of mental disease,
disorder, or defect is still admissible on the issue of whether the accused actually
formed an intent unlawfully to kill — i.e., whether the accused actually formed
express malice."

Sections 22 and 28 state that voluntary intoxication or mental condition may be

considered in deciding whether the defendant actually had the required mental
state, including malice. These sections relate to any crime, and make no attempt to
define what mental state is required. Section 188, on the other hand, defines malice
for purposes of murder. In combination, the statutes provide that voluntary
intoxication or mental condition may be considered in deciding whether there was
malice as defined in section 188. Contrary to defendant's contention, we see no
conflict in these provisions.

(5) Defendant further argues that the Legislature's narrowing of the definition of
express malice and the resulting restriction of the scope of voluntary manslaughter
presents a due process problem. We disagree. The Legislature can limit the mental
elements included in the statutory definition of a crime and thereby curtail use of
mens rea defenses. (See Patterson v. New York (1977) 432 U.S. 197, 210-211 [53
L.Ed.2d 281, 292-293, 97 S.Ct. 2319].) If, however, a crime requires a particular
mental state the Legislature may not deny a defendant the opportunity to prove he
did not possess that state. (Id., at p. 215 [53 L.Ed.2d at p. 295].) The abolition of
the diminished capacity defense and limitation of admissible evidence to actual
formation of various mental states has been held not to violate the due process
right to present a defense. (People v. Jackson (1984) 152 Cal. App.3d 961, 967-
970 [199 Cal. Rptr. 848]; People v. Lynn (1984) 159 Cal. App.3d 715, 731-733
[206 Cal. Rptr. 181]; People v. Whitler (1985) 171 Cal. App.3d 337, 340-341 [214
Cal. Rptr. 610].) If there is no due process impediment to the deletion of malice as
an element of the crime of felony murder (People v. Dillon (1983) 34 Cal.3d 441,
472-476 [194 Cal. Rptr. 390, 668 P.2d 697]), there is likewise no problem here.
(1c) In amending section 188 in 1981, the Legislature equated express malice with
an intent unlawfully to kill. Since two distinct concepts no longer exist, there has
been some narrowing of the mental element included in the statutory definition of
express malice. A defendant, 1117*1117 however, is still free to show that because
of his mental illness or voluntary intoxication, he did not in fact form the intent
unlawfully to kill (i.e., did not have malice aforethought). (People v. Jackson,
supra, 152 Cal. App.3d at p. 968.) In a murder case, if this evidence is believed,
the only supportable verdict would be involuntary manslaughter or an acquittal. If
such a showing gives rise to a reasonable doubt, the killing (assuming there is no
implied malice) can be no greater than involuntary manslaughter. (See People v.
Bobo,[**] supra, 229 Cal. App.3d at pp. 1442-1443.)

It follows from the foregoing analysis that the trial court did not err in failing to
instruct that voluntary intoxication could negate express malice so as to reduce a
murder to voluntary manslaughter.

Duty to Instruct Sua Sponte

(6a) Defendant contends that the trial court erred in failing to instruct sua sponte
that the jury should consider his voluntary intoxication in determining whether he
had premeditated and deliberated the murder. As previously mentioned, the
instructions given (CALJIC No. 4.21) related voluntary intoxication only to the
question of whether defendant had the specific intent to kill.

The Court of Appeal held that the abolition of the defense of diminished capacity
had eliminated the need for a sua sponte instruction relating mental illness or
voluntary intoxication to the required mental states. It relied on the analysis set
forth by Justice Sims in his concurring opinion in People v. Whitler, supra, 171
Cal. App.3d at pages 342-343: "These cases represent variations of the familiar
rule that a trial court has a sua sponte duty to give instructions relating a
recognized defense to elements of a charged offense. (People v. Sedeno (1974) 10
Cal.3d 703, 716.) ... [T]he defense of diminished capacity has been abolished. A
defendant may still defend against a charge of homicide by presenting evidence of
mental disease or defect sufficient to raise a reasonable doubt that he or she in fact
had the requisite mental state at the time of the offense. [Citation.] However, when
a defendant presents evidence to attempt to negate or rebut the prosecution's proof
of an element of the offense, a defendant is not presenting a special defense
invoking sua sponte instructional duties. While a court may well have a duty to
give a `pinpoint' instruction relating such evidence to the elements of the offense
and to the jury's duty to acquit if the evidence produces a reasonable doubt, such
`pinpoint' instructions are not required to be given sua sponte and must be given
only upon request. [Citations.]"
1118*1118 In contesting the Court of Appeal's determination on this issue,
defendant relies primarily on People v. Jackson (1989) 49 Cal.3d 1170 [264 Cal.
Rptr. 852, 783 P.2d 211] and People v. Ramirez (1990) 50 Cal.3d 1158 [270 Cal.
Rptr. 286, 791 P.2d 965]. In Jackson, the defendant was convicted of first degree
murder despite evidence that he did not recall the event and was a chronic user of
phencyclidine (PCP). Defendant relies on our discussion in Jackson of the
defendant's claim that the court erred in instructing on involuntary manslaughter.
We noted that both the defense and prosecution had requested the instruction and
that the defendant's testimony constituted evidence warranting it. We further
stated: "Mitigation of the requisite mental state due to drug intoxication was the
primary theory of defense and, even if the defense had not requested the
instruction, the court clearly had a sua sponte duty to instruct as it did on both
voluntary and involuntary manslaughter." (People v. Jackson, supra, 49 Cal.3d at
p. 1196.) We did not, however, address the question presented here — whether
there is a sua sponte duty to instruct on the relationship between voluntary
intoxication and premeditation and deliberation. The court in this case did instruct
on all aspects of homicide — first and second degree murder, voluntary and
involuntary manslaughter.

In People v. Ramirez, supra, 50 Cal.3d 1158, the trial court refused to give a
requested instruction under former CALJIC No. 8.41, relating diminished capacity
caused by intoxication to voluntary manslaughter. We found the refusal proper in
light of the abolition of the diminished capacity defense, but we noted that no one
had raised the potential applicability of CALJIC No. 4.21, which deals with the
effect of intoxication on the defendant's actual state of mind. Although we held
that there was insufficient evidence of intoxication to warrant a sua sponte
instruction, we also stated that "a number of decisions have specifically held that in
an appropriate case a trial court has a sua sponte duty to instruct the jury on the
principles embodied in CALJIC No. 4.21. (See, e.g., People v. Baker (1954) 42
Cal.2d 550, 576 [268 P.2d 705]; People v. Sanchez (1950) 35 Cal.2d 522, 527-528
[219 P.2d 9]; People v. Robinson (1970) 5 Cal. App.3d 43, 48 [84 Cal. Rptr. 796];
People v. Arriola (1958) 164 Cal. App.2d 430, 435.) ... Thus, when the evidence
warrants and the defense is not inconsistent with the defendant's theory of the case
(see People v. Sedeno (1974) 10 Cal.3d 703, 716 [112 Cal. Rptr. 1, 518 P.2d 913]),
the principle embodied in CALJIC No. 4.21 is one of `the general principles of
law' (see People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal. Rptr. 166, 463
P.2d 390]) on which the trial court must instruct the jury even in the absence of a
request." (People v. Ramirez, supra, 50 Cal.3d at pp. 1179-1180.)
The discussion in Ramirez, supra, 50 Cal.3d 1158, did not consider the points now
raised and, in any event, was dictum. The Ramirez discussion 1119*1119 appears
to assume that intoxication is in the nature of a defense. Technically, however, it
was never a defense (see § 22). When voluntary intoxication became subsumed by
diminished capacity, it was treated as a part of the defense of diminished capacity.
(See, e.g., People v. Gorshen, supra, 51 Cal.2d at p. 727; People v. Conley, supra,
64 Cal.2d 310.) (7) The withdrawal of diminished capacity as a defense removes
intoxication from the realm of defenses to crimes. Intoxication is now relevant only
to the extent that it bears on the question of whether the defendant actually had the
requisite specific mental state. (8) Thus it is now more like the "pinpoint"
instructions discussed in People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal. Rptr.
711, 465 P.2d 847], and People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885 [123
Cal. Rptr. 119, 538 P.2d 247, 92 A.L.R.3d 845], to which a defendant is entitled
upon request. Such instructions relate particular facts to a legal issue in the case or
"pinpoint" the crux of a defendant's case, such as mistaken identification or alibi.
(See People v. Rincon-Pineda, supra, 14 Cal.3d at p. 885.) They are required to be
given upon request when there is evidence supportive of the theory, but they are
not required to be given sua sponte.

All of the cases relied upon and cited by Ramirez were decided after our
embarkation on the development of the diminished capacity theory in 1949 in
People v. Wells, supra, 33 Cal.2d 330. Moreover, they provide only minimal
support for the proposition for which they were cited. In People v. Sanchez (1950)
35 Cal.2d 522, 527-528 [219 P.2d 9], there was evidence that the defendant had
been drinking heavily, but the trial court refused to give the defendant's requested
instruction regarding intoxication on the ground that the proffered instruction was
incorrect. This court held that the trial court should have given its own instruction
if the defendant's version was incorrect. In People v. Baker (1954) 42 Cal.2d 550
[268 P.2d 705], the trial court gave misleading instructions by reciting only the
first part of section 22 to the effect that voluntary intoxication does not excuse
criminal conduct without informing that jury that it could nevertheless consider
voluntary intoxication in determining whether the requisite intent had been shown.
We stated: "Although we might hesitate before holding that the absence of any
instruction on voluntary intoxication in a situation such as that presented in this
case is prejudicial error, when a partial instruction has been given we cannot but
hold that the failure to give complete instructions was prejudicial error." (42 Cal.2d
at pp. 575-576.) People v. Arriola (1958) 164 Cal. App.2d 430 [330 P.2d 683] also
involved the giving of only the first part of the intoxication instruction. Without the
second part of the instruction it was misleading and erroneous. Finally, People v.
Robinson (1970) 5 Cal. App.3d 43 [84 Cal. Rptr. 796] rejected a claim that the
court should have instructed on intoxication on the ground that there was
insufficient evidence to justify such an instruction. In passing, however, the court
stated: "While a trial 1120*1120 court on its own motion must instruct the jury
with respect to the effect of intoxication on a crime requiring specific intent where
evidence of intoxication raises a factual issue (People v. Baker, 42 Cal.2d 550,
572-573, 576; People v. Arriola, 164 Cal. App.2d 430, 434-435), here the evidence
of intoxication was minimal and such instruction was unnecessary." (Id., at p. 48.)

Thus, the authority supportive of the asserted sua sponte duty appears to consist
entirely of dicta. (See also People v. Crawford (1968) 259 Cal. App.2d 874, 877-
878 [66 Cal. Rptr. 527]; People v. Watts (1976) 59 Cal. App.3d 80, 84-85 [130
Cal. Rptr. 601].) The only case involving a direct holding that it was error to fail to
instruct sua sponte on voluntary intoxication was itself based on the previously
mentioned dicta. (People v. Fanning (1968) 265 Cal. App.2d 729, 733 [71 Cal.
Rptr. 641].)

(6b) Thus, even if there were a duty on the trial court to instruct sua sponte on
voluntary intoxication when the defense of diminished capacity existed, we do not
believe that it is reasonable for such a duty to continue after abolition of the
diminished capacity defense.

In our view, under the law relating to mental capacity as it exists today, it makes
more sense to place on the defendant the duty to request an instruction which
relates the evidence of his intoxication to an element of a crime, such as
premeditation and deliberation. This is so because the defendant's evidence of
intoxication can no longer be proffered as a defense to a crime but rather is
proffered in an attempt to raise a doubt on an element of a crime which the
prosecution must prove beyond a reasonable doubt. In such a case the defendant is
attempting to relate his evidence of intoxication to an element of the crime.
Accordingly, he may seek a "pinpoint" instruction that must be requested by him
(See 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2925, pp. 3586-
3587), but such a pinpoint instruction does not involve a "general principle of law"
as that term is used in the cases that have imposed a sua sponte duty of instruction
on the trial court. The court did not err, therefore, in failing to instruct sua sponte.

Instruction on Involuntary Manslaughter

(9) Defendant contends that the instructions on involuntary manslaughter

improperly required a showing of unconsciousness. The court gave CALJIC No.
8.45, which defined involuntary manslaughter as follows: "Involuntary
manslaughter is the unlawful killing of a human being without malice aforethought
and without an intent to kill. [¶] In order to prove the 1121*1121 commission of
the crime of involuntary manslaughter, each of the following elements must be
proved: [¶] 1. That a human being was killed, and [¶] 2. That the killing was
unlawful. [¶] A killing is unlawful within the meaning of this instruction if it
occurred: [¶] 1. During the commission of a misdemeanor which is inherently
dangerous to human life, namely, the offense of exhibiting a deadly weapon, or [¶]
2. In 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."

The court gave CALJIC No. 8.47 (1981 rev.) on killing while unconscious due to
voluntary intoxication: "If you find that the defendant killed while unconscious as
a result of voluntary intoxication and therefore did not form a specific intent to kill
or did not harbor malice aforethought, his killing is involuntary manslaughter. [¶]
When a person voluntarily induces his own intoxication to the point of
unconsciousness, he assumes the risk that while unconscious he will commit acts
inherently dangerous to human life or safety. Under such circumstances, the law
implies criminal negligence."

Defendant contends CALJIC No. 8.47 was misleading because it did not define
"unconsciousness" and it suggested that the accused must be unconscious to
support a finding of involuntary manslaughter. Defendant asserts that one may lack
an intent to kill without being unconscious and that the instruction leaves no room
for that.

Unconsciousness was, however, defined in CALJIC No. 4.30, which was given on
excusable homicide due to involuntary unconsciousness. That instruction made
clear that a person need not be incapable of movement to be unconscious. There is
no reason to believe the jury would not have applied that definition of
unconsciousness when considering CALJIC No. 8.47 on unconscious acts from
voluntary intoxication.

The court also instructed on voluntary intoxication as it related to the intent to kill
(CALJIC No. 4.21). We agree with the Court of Appeal that the trial court was not
required sua sponte to give "pinpoint" instructions relating voluntary intoxication
to the elements of the crime — malice and intent to kill. If defendant had wanted a
more precise instruction on the possibility of voluntary intoxication negating intent
to kill, he should have requested such. Defendant's reliance on People v. Ray
(1975) 14 Cal.3d 20 [120 Cal. Rptr. 377, 533 P.2d 1017] is misplaced because
unlike the Ray court, the court here did instruct on involuntary manslaughter. It
was the "pinpoint" instruction that was missing here, not the instruction on a lesser
included offense.

1122*1122 CONCLUSION

The judgment of the Court of Appeal is affirmed.

Lucas, C.J., Mosk, J., Kennard, J., Arabian, J., Baxter, J., and George, J.,
concurred.

Appellant's petition for a rehearing was denied January 30, 1992.

[1] Another type of nonstatutory voluntary manslaughter — the so-called

"imperfect self-defense" doctrine — has been recognized in California. That
doctrine applies to reduce an intentional killing from murder to manslaughter when
a person kills under an honest but unreasonable belief in the necessity to defend
against imminent peril to life or great bodily injury. (People v. Flannel (1979) 25
Cal.3d 668, 674-680 [160 Cal. Rptr. 84, 603 P.2d 1]; People v. Van Ronk (1985)
171 Cal. App.3d 818, 823 [217 Cal. Rptr. 581].) This doctrine has no application to
the facts before us, and we do not decide whether it has been affected by
Proposition 8 and the 1981 legislation.

[2] All further statutory references are to the Penal Code unless otherwise
indicated.

[3] Section 188 at that time provided that 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." (People v. Conley, supra, 64 Cal.2d at p. 320.)

[4] The original version of Senate Bill No. 54 was far more sweeping in effect. It
would have repealed the plea of not guilty by reason of insanity, abolished
diminished capacity, and made mental illness and voluntary intoxication matters to
be considered only in mitigation of punishment. The scope of the bill was
narrowed as it went through the Legislature. The last amendments made by the
Assembly on August 11, 1981, resulted in the language we must interpret in
sections 22, 28, and 29. (Sen. Bill No. 54, as amended Aug. 11, 1981.)

[5] Subsequent minor amendments have been made to these statutes. We quote the
current version of the statutes.
[6] Some commentators have referred to this as a return to the strict mens rea
approach. (Comment, Admissibility of Psychiatric Testimony in the Guilt Phase of
Bifurcated Trials: What's Left After the Reforms of the Diminished Capacity
Defense?, supra, 16 Pacific L.J. 305; Morse & Cohen, Diminishing Diminished
Capacity in California (June 1982) 2 Cal.Law., at p. 24.)

[*] Reporter's Note: Review granted October 11, 1990 (S016988); opinion ordered
published December 11, 1991, pursuant to rules 976(d) and 978(c), California
Rules of Court; review dismissed as improvidently granted on February 13, 1992,
with directions that the opinion remain published.

[**] See footnote, ante, page 1114.

 664 N.W.2d 685 (2003)

468 Mich. 527

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.
Richard J. MENDOZA, Defendant-Appellee.
Docket No. 120630, Calendar No. 4.

Supreme Court of Michigan.

Argued March 11, 2003.

Decided June 20, 2003.

686*686 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General,

Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief,
Research, Training and Appeals, and Deborah K. Blair, Assistant Prosecuting
Attorney, Detroit, for the people.

Ashford & Associates, P.C. (by Linda D. Ashford), Detroit, for the defendant-
appellee.

Amici Curiae David L. Morse, President, David G. Gorcyca, Prosecuting Attorney,

Joyce F. Todd, Chief, Appellate Division, and Kathryn G. Barnes and John S.
Pallas, Assistant Prosecuting Attorneys, Pontiac, for the Prosecuting Attorneys
Association of Michigan.

State Appellate Defender (by Peter Jon Van Hoek), Detroit, for the Criminal
Defense Attorneys of Michigan.

YOUNG, Justice.

Defendant was charged with first-degree murder, M.C.L. § 750.316, but convicted
by a jury of second-degree murder, M.C.L. § 750.317. The Court of Appeals
reversed defendant's conviction and remanded the case for a new trial, reasoning
that the trial court erred when it declined to give an involuntary-manslaughter
instruction. This Court granted leave to appeal to consider whether manslaughter is
an "inferior" 687*687 offense of murder under M.C.L. § 768.32(1), and if so,
whether a rational view of the evidence supported an instruction in this case.
We conclude that manslaughter is an inferior offense of murder. However, an
involuntary-manslaughter instruction was not appropriate in this case because a
rational view of the evidence did not support it. Accordingly, we reverse the
judgment of the Court of Appeals and reinstate defendant's conviction. To the
extent that People v. Van Wyck, 402 Mich. 266, 262 N.W.2d 638 (1978), and its
progeny conflict with this opinion, they are overruled.

I. FACTS AND PROCEDURAL HISTORY

Defendant and codefendant Ivan Tims visited the home of victim William
Stockdale and Stockdale's nephew, Thurman Chillers, with the intent to purchase
marijuana. Tims initially waited outside in the car while defendant discussed the
price of the drugs with Stockdale and Chillers in the house. Agreeing on a price,
defendant indicated to Stockdale that he had to return to the car to get additional
money. When defendant returned to the house, he was accompanied by Tims. Both
men brandished handguns.

Chillers testified that, upon entering the home, defendant instructed Tims to "shoot
him." In response, Tims alternately pointed his gun at Chillers and Stockdale.
Stockdale, in turn, rushed at defendant, grabbed defendant's gun and swung it
downwards. Chillers ran out of the house. As he ran, he saw Stockdale "tussling"
with defendant. Chillers further testified that he heard one shot while he was in the
house and four or five more shots when he was outside. In the end, Stockdale was
shot twice, once in the leg and once in the chest. The chest wound proved fatal.

Defendant was charged with first-degree murder, M.C.L. § 750.316, and

possession of a firearm during the commission of a felony, M.C.L. § 750.227b. His
defense was that Tims shot Stockdale. Defendant elicited testimony from various
witnesses establishing that defendant was not in the house when the victim was
fatally wounded and that the fatal bullet came from a gun traceable to Tims.

At the close of proofs, defendant requested instructions for voluntary and

involuntary manslaughter, M.C.L. § 750.321, and careless, reckless, or negligent
discharge of a firearm, M.C.L. § 752.861. The trial court denied the requests and
instructed the jury on first-degree murder, M.C.L. § 750.316, and second-degree
murder, M.C.L. § 750.317. Defendant was convicted of second-degree murder and
felony-firearm.

The Court of Appeals reversed defendant's conviction and remanded the case for a
new trial, 2001 WL 1198937. The panel treated the manslaughter-instruction
requests as requests for instructions on a "cognate" lesser included offense and
concluded that the trial court erred in refusing to give the involuntary-manslaughter
instruction because there was evidence from which the jury could conclude that the
victim's death was unintended and occurred while defendant was engaged in an
unlawful act not amounting to a felony. Slip op. at 2.

The prosecutor applied for leave to appeal.[1] We granted leave to consider whether
manslaughter is an inferior offense of murder within the meaning of M.C.L. §
768.32 and, if so, whether an 688*688 involuntary-manslaughter instruction was
supported by a rational view of the evidence.

II. STANDARD OF REVIEW

Whether manslaughter is an inferior offense of murder within the meaning of

M.C.L. § 768.32 is a question of law that the Court reviews de novo. Weakland v.
Toledo Engineering Co., 467 Mich. 344, 347, 656 N.W.2d 175 (2003).

III. ANALYSIS
A. MCL 768.32

MCL 768.32 governs inferior-offense instructions. Subsection 1 provides in

pertinent part:

... [U]pon an indictment for an offense, consisting of different degrees, as

prescribed in this chapter, the jury, or the judge in a trial without a jury, may find
the accused not guilty of the offense in the degree charged in the indictment and
may find the accused person guilty of a degree of that offense inferior to that
charged in the indictment, or of an attempt to commit that offense.

We recently examined this statute in People v. Cornell, 466 Mich. 335, 646
N.W.2d 127 (2002).[2] In Cornell, the Court considered whether necessarily
included lesser offenses[3] and cognate lesser included offenses[4] were "inferior"
offenses under M.C.L. § 768.32. In consideration of this issue, we examined the
meaning of the word "inferior":

"We believe that the word `inferior' in [MCL 768.32] does not refer to inferiority
in the penalty associated with the offense, but, rather, to the absence of an element
that distinguishes the charged offense from the lesser offense. The controlling
factor is whether the lesser offense can be proved by the same facts that are used to
establish the charged offense." [Cornell, supra at 354, 646 N.W.2d 127, quoting
People v. Torres (On Remand), 222 Mich.App. 411, 419-420, 564 N.W.2d 149
(1997) ].

Relying on this definition of "inferior," this Court concluded that M.C.L. § 768.32
only permitted consideration of necessarily included lesser offenses. Cornell, supra
at 353-354, 646 N.W.2d 127. Thus, we held that an inferior-offense instruction is
appropriate only if the lesser offense is necessarily included in the greater offense,
meaning, all the elements of the lesser offense are included in the greater offense,
and a rational view of the evidence would support such an instruction.[5] Id. at 357,
646 N.W.2d 127.

689*689 B. MANSLAUGHTER IS AN INFERIOR OFFENSE OF MURDER

Manslaughter is an inferior offense of murder because manslaughter is a

necessarily included lesser offense of murder.

1. The Elements Of Common-Law Murder And Manslaughter

Common-law murder encompasses all killings done with malice aforethought and
without justification or excuse. People v. Scott, 6 Mich. 287, 292-293 (1859). See
also People v. Potter, 5 Mich. 1, 6 (1858)("Murder is where a person of sound
memory and discretion unlawfully kills any reasonable creature in being, in the
peace of the state, with malice prepense or aforethought, either express or
implied.").

First-degree murder is defined in M.C.L. § 750.316.[6] All other murders are

murders in the second degree. MCL 750.317. See also People v. Goecke, 457
Mich. 442, 463-464, 579 N.W.2d 868 (1998), which enumerated the elements of
second-degree murder as (1) death, (2) caused by defendant's act, (3) with malice,
and (4) without justification.

Manslaughter is murder without malice. See Potter, supra at 9 (noting that without
malice aforethought, "a killing would be only manslaughter, if criminal at all").
See also People v. Palmer, 105 Mich. 568, 576, 63 N.W. 656 (1895), remarking:

"Manslaughter is perfectly distinguishable from murder, in this: That though the

act that causes death be unlawful or willful, though attended with fatal results, yet
malice, either expressed or implied, which is the very essence of murder, is to be
presumed to 690*690 be wanting in manslaughter." [Quoting the trial court jury
instructions.]
The common law recognizes two forms of manslaughter: voluntary and
involuntary. People v. Townes, 391 Mich. 578, 589, 218 N.W.2d 136 (1974).

Common-law voluntary manslaughter is defined as:

[T]he act of killing, though intentional, [is] 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....[Maher v. People, 10 Mich. 212, 219
(1862).]

See also Townes, supra at 590, 218 N.W.2d 136 ("A defendant properly convicted
of voluntary manslaughter is a person who has acted out of a temporary excitement
induced by an adequate provocation and not from the deliberation and reflection
that marks the crime of murder."). Thus, to show voluntary manslaughter, one must
show that the defendant killed in the heat of passion, the passion was caused by
adequate provocation, and there was not a lapse of time during which a reasonable
person could control his passions. See People v. Pouncey, 437 Mich. 382, 389, 471
N.W.2d 346 (1991).[7] Significantly, provocation is not an element of voluntary
manslaughter. See People v. Moore, 189 Mich.App. 315, 320, 472 N.W.2d 1
(1991). Rather, provocation is the circumstance that negates the presence of
malice. Scott, supra at 295.

Involuntary manslaughter is the unintentional killing of another, without malice,

during the commission of an unlawful act not amounting to a felony and not
naturally tending to cause great bodily harm; or during the commission of some
lawful act, negligently performed; or in the negligent omission to perform a legal
duty. See Townes, supra at 590, 218 N.W.2d 136. See also People v. Heflin, 434
Mich. 482, 507-508, 456 N.W.2d 10 (1990)(opinion by RILEY, C.J.).

2. THE SOLE ELEMENT DISTINGUISHING MANSLAUGHTER AND

MURDER IS MALICE

An examination of the historical development of homicide law informs this Court

that manslaughter is a necessarily included lesser offense of murder because the
elements of manslaughter are included in the offense of murder.

a. HOMICIDE IN ENGLISH COMMON LAW

In early English common law, a killing was either justifiable homicide; excusable
murder committed by misadventure or accident, or in self-defense; or capital
murder, characterized by "malice aforethought" and punishable by death. See 2
Pollock and Maitland, The History of English Law (Cambridge: University Press,
1952), ch. VIII, Crime and Tort, § 2, p. 485. However, during the fourteenth and
fifteenth centuries, an exemption called the "benefit of clergy" was widely used as
a device to mitigate mandatory death sentences. Hall, Legal fictions and moral
reasoning: Capital punishment and the 691*691 mentally retarded defendant after
Penry v. Johnson, 35 Akron L. R. 327, 353 (2002).

The "benefit of clergy" was an exemption that allowed an offender to be sentenced

by the ecclesiastical courts, which did not impose capital punishment.[8] Though it
was initially intended to benefit clergy, it also benefitted persons who could satisfy
its literacy test. See Kealy, Hunting the dragon: Reforming the Massachusetts
murder statute, 10 B. U. Pub. Int. L. J. 203, 205-206 (2001). Thus, it was not long
before persons other than clerics claimed the exemption, so that the "benefit of
clergy" exemption benefitted anyone who could read. See Justice Harlan's
discussion in McGautha v. California, 402 U.S. 183, 197, 91 S.Ct. 1454, 28
L.Ed.2d 711 (1971), noting that although all criminal homicides were prima facie
capital cases, the "benefit of clergy" was available to almost any man who could
read.

In response to the exemption's widespread availability, statutes were passed

throughout the fifteenth and sixteenth centuries proclaiming the exemption
unavailable for homicides committed under particularly reviled circumstances,
collectively termed "murder with malice aforethought." Moreland, The Law of
Homicide (Indianapolis: The Bobbs-Merrill Co., Inc., 1952), ch. 2, The
Development of Malice Aforethought, p. 9. The "benefit of clergy" remained
available, however, for offenders convicted of less culpable homicides. Id.
Thereafter, unjustified and unexcused homicide was divided into two separate
crimes: "wilful murder of malice aforethought", a capital offense for which the
"benefit of clergy" was unavailable, and manslaughter. Plucknett, A Concise
History of the Common Law (New York: The Lawyers Co Operative Pub. Co.,
1927), ch. 2, The Felonies, pp. 395-396. The critical difference between murder
and manslaughter was the presence or absence of "malice aforethought." Moreland,
supra at 10.

b. "MALICE AFORETHOUGHT"
The phrase "malice aforethought" has evolved over the centuries. During the late
fifteenth and early sixteenth centuries, "malice aforethought" meant that one
possessed an intent to kill well in advance of the act itself. Id. at 10. Notably, the
emphasis was on "aforethought," so that the critical difference between capital and
noncapital murder was the passage of time between the initial formulation of the
intent to kill and the act itself. Moylan, Criminal Homicide Law (Maryland
Institute for Continuing Professional Education of Lawyers), ch. 2, § 2.7. The term
"malice" alone had little significance beyond meaning an intent to commit an
unjustified and inexcusable killing. Id. The purpose of the "malice aforethought"
element was to distinguish between deliberate, calculated homicides and homicides
committed in the heat of passion. Kealy, supra at 206.

As more and more defendants claimed they lacked an intent to kill before the act
was committed, juries and courts increasingly rejected this argument. The result
was a case-by-case "semantic erosion" of the term "aforethought," until "malice
aforethought" meant nothing more than the intent to kill had to exist at the time the
act was committed. Perkins & Boyce, Criminal Law (3rd ed.), Murder, § 1, p. 58
("[a]s case after case came before the courts for determination ... there came to be
less and less emphasis upon the notion of a well-laid plan. And at the present day,
the only requirement in this regard is 692*692 that it must not be an after
thought"). There was, consequently, a parallel erosion of the distinction between
capital murder, for which aforethought was required, and noncapital homicide, for
which it was not.

Interestingly, although the English courts grew weary of the oft abused "lack of
aforethought" defense, it was nevertheless evident that there was still some interest
in distinguishing between a homicide committed in "cold-blood" and one
committed under circumstances that mitigated one's culpability. To express this
distinction, the focus shifted from "aforethought" to "malice." Moreland, supra at
11 ("[t]he law of homicide seems thus to have now progressed from a place where
the mental element was of no importance to a place where at the beginning of the
seventeenth century it had become a factor of prime importance").

Because there was a need to distinguish the most serious homicide from the rest,
and because "aforethought" no longer had legal significance, malice evolved from
being merely an intent to kill to also evidencing the absence of mitigating
circumstances. Moylan, supra at § 2.7. Consequently, the presence of malice
became both synonymous with the absence of mitigating circumstances and the
sole element distinguishing murder from manslaughter.
We glean from our examination of manslaughter's historical development that
manslaughter is defined to reflect the absence of malice. Thus, the only element
distinguishing murder from manslaughter is malice.

3. MANSLAUGHTER IS A NECESSARILY LESSER INCLUDED

OFFENSE OF MURDER

A necessarily lesser included offense is an offense whose elements are completely

subsumed in the greater offense. Cornell, supra at 356, 646 N.W.2d 127.

Regarding voluntary manslaughter, both murder and voluntary manslaughter

require a death, caused by defendant, with either an intent to kill, an intent to
commit great bodily harm, or an intent to create a very high risk of death or great
bodily harm with knowledge that death or great bodily harm was the probable
result. However, the element distinguishing murder from manslaughter-malice-is
negated by the presence of provocation and heat of passion. See Scott, supra at
295. Thus, we conclude, the elements of voluntary manslaughter are included in
murder, with murder possessing the single additional element of malice.

Regarding involuntary manslaughter, the lack of malice is evidenced by

involuntary manslaughter's diminished mens rea, which is included in murder's
greater mens rea. See People v. Datema, 448 Mich. 585, 606, 533 N.W.2d 272
(1995), stating:

"[P]ains should be taken not to define [the mens rea required for involuntary
manslaughter] in terms of a wanton and wilful disregard of a harmful consequence
known to be likely to result, because such a state of mind goes beyond negligence
and comes under the head of malice."
Unlike murder, involuntary manslaughter contemplates an unintended result and
thus requires something less than an intent to do great bodily harm, an intent to
kill, or the wanton and wilful disregard of its natural consequences. [Citations
omitted; emphasis added.]

See also United States v. Browner, 889 F.2d 549, 553 (C.A.5, 1989), stating, "In
contrast to the case of voluntary manslaughter... the absence of malice in
involuntary manslaughter arises not because of provocation induced passion, but
693*693 rather because the offender's mental state is not sufficiently culpable to
reach the traditional malice requirements."
Thus, we conclude that the elements of involuntary manslaughter are included in
the offense of murder because involuntary manslaughter's mens rea is included in
murder's greater mens rea.

Accordingly, we hold the elements of voluntary and involuntary manslaughter are

included in the elements of murder. Thus, both forms of manslaughter are
necessarily included lesser offenses of murder. Because voluntary and involuntary
manslaughter are necessarily included lesser offenses, they are also "inferior"
offenses within the scope of M.C.L. § 768.32. Consequently, when a defendant is
charged with murder, an instruction for voluntary and involuntary manslaughter
must be given if supported by a rational view of the evidence. Cornell, supra.

4. TODAY'S HOLDING IS CONSISTENT WITH EARLY MICHIGAN

COMMON LAW

Today's holding is consistent with our courts' historical understanding of the law of
murder. Michigan courts have historically concluded that a manslaughter
instruction is appropriate on a murder charge if a manslaughter instruction is
supported by a rational view of the evidence. See, e.g., Hanna v. People, 19 Mich.
316, 321 (1869)(in consideration of M.C.L. § 768.32's similarly worded
predecessor, "without this provision, the common law rule would, under the
statute, dividing murder into degrees, have authorized a conviction not only for
murder in the second degree, but for manslaughter also, under an indictment for
murder in the first degree, all these being felonies included in the
charge")(emphasis added). See People v. Treichel, 229 Mich. 303, 307-308, 200
N.W. 950 (1924), stating:

This Court has repeatedly held, where the charge as laid includes murder in the
first degree, and the proofs establish such degree, and no lesser degree, it is not
error for the court to instruct the jury that, in order to convict, murder in the first
degree must be found. But this court has not held, under a charge like here laid, the
court must instruct the jury to find murder in the first degree or acquit. Whether
such an instruction may be given or not depends upon the evidence. [Emphasis in
original.]
[In this case, the] information charged murder in the first and second degrees, and
this was inclusive of manslaughter. The evidence left it open for the jury to find
defendants guilty of manslaughter.

See also People v. Droste, 160 Mich. 66, 78-79, 125 N.W. 87 (1910)(concluding
that the trial court was "clearly warranted" in instructing the jury on manslaughter
in a murder case because a jury could have concluded there was sufficient
intoxication or passion to "rob [defendant's] act of the necessary elements of
murder"); People v. Andrus, 331 Mich. 535, 546-547, 50 N.W.2d 310
(1951)(remarking that it was proper for the court to submit the lesser included
offenses of second-degree murder and manslaughter because the evidence was
sufficient to support the offense).

It was not until this Court overlooked M.C.L. § 768.32, and introduced "cognate"
lesser included offenses, that the relationship between manslaughter and murder
became muddled. In People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975), this
Court, without consideration of M.C.L. § 768.32, recognized a new category of
lesser included offenses called "cognate" offenses. Cognate offenses differed from
necessarily included lesser offenses in that cognate offenses share with the higher
offense several elements and are of the same class or category, but they contain
elements 694*694 not found in the higher offense. See Cornell, supra at 344-346,
646 N.W.2d 127. Faced with a category of lesser included offenses not previously
recognized in Michigan, this Court, in Van Wyck, supra, concluded that
manslaughter was a cognate lesser included offense of murder:

We hold that manslaughter is not a necessarily included offense within the crime of
murder but that it may nonetheless be an included offense if the evidence adduced
at trial would support a verdict of guilty for that crime.
As we noted in People v. Ora Jones, supra [395 Mich. 379, 236 N.W.2d 461
(1975)]:
"The common-law definition of lesser included offenses is that the lesser must be
such that it is impossible to commit the greater without first having committed the
lesser." [Citation omitted.]

***
[With regard to the murder/manslaughter relationship], [t]he absence of mitigating
circumstances need not be established in order to convict one of first—or second-
degree murder. Consequently, it cannot be said voluntary manslaughter is a
necessarily included offense within the crime of murder; it is incorrect to state that
it is impossible to commit first—or second-degree murder without having first
committed manslaughter. [Van Wyck, supra at 268-269, 262 N.W.2d 638.]

Notably, the Van Wyck Court failed to discuss earlier common-law decisions
characterizing manslaughter as a lesser included offense of murder before cognate
offenses were recognized. We also note that the Van Wyck Court did not give any
consideration to the unique relationship between murder and manslaughter.

For the reasons discussed above, we conclude manslaughter is a necessarily

included lesser offense of murder. We further conclude that Van Wyck's analysis is
flawed inasmuch as it is premised on a body of law recognizing cognate lesser
included offenses in contravention of M.C.L. § 768.32. Accordingly, to the extent
that Van Wyck and its progeny are inconsistent with this opinion and our opinion in
Cornell, they are expressly overruled.

C. AN INVOLUNTARY-MANSLAUGHTER INSTRUCTION WAS NOT

WARRANTED

Having concluded that manslaughter is an inferior offense of murder because it is a

necessarily included lesser offense, we now consider whether the trial court erred
in refusing to give an involuntary-manslaughter instruction.

An inferior-offense instruction is appropriate only when a rational view of the

evidence supports a conviction for the lesser offense. Cornell, supra at 357, 646
N.W.2d 127. In this case, the Court of Appeals concluded there was sufficient
evidence to support an involuntary-manslaughter instruction. In reaching this
conclusion, the Court relied on defendant's statement to the police recounting what
happened:

I was at a gas station on Seven Mile near Hoover when Ivan pulled up in a gray
newer model car and asked me did I want some bud. Ivan asked me did I have half
on it. I said, yes. I then got into the car with Ivan. Ivan stopped by one house, then
he went to the bud house. When we got to the house, Ivan stayed in the car and I
went to the house. When I got to the front door, there was a big guy coming out
and motioned for me just to go on in. The guy that let me in continued talking to a
big dark-skinned guy with a deep voice. Another guy, kind of frail [Chillers],
sitting in a love seat asked me how many I 695*695 needed. I responded by saying,
just one back. That's when Ivan came to the door. Ivan started talking to the guy
with the deep voice. The guy that let me in then left. I started to get my stuff from
the frail guy. While I'm getting my stuff, I heard some tussling. I look back and
Ivan was tussling with the big guy with the deep voice. They were tussling over a
handgun with a dark barrel. While they were tussling, I heard approximately two
shots. They then fell into a corner over a chair. I then heard the frail guy holler. He
had pulled out a shiny revolver and pointed it at Ivan and the guy he was tussling
with. I then tried to knock the gun away from [Chillers]. As I was attempting to
knock the gun away from [Chillers], he pulled the trigger. I then tried to run but I
tripped over Ivan.... [Emphasis added.]

The Court of Appeals concluded that defendant's statement that Chillers pulled the
trigger when defendant tried to knock the gun away from him was sufficient to
support an involuntary-manslaughter conviction. The Court reasoned that
defendant's statement could support a finding that the victim's killing was an
unintended death, without malice, and not caused by any action of defendant
naturally tending to cause death.

We disagree and conclude that defendant's statement alone is insufficient to

support an involuntary-manslaughter instruction. Defendant's statement does not
indicate that the shot fired during the struggle struck or killed the victim. In fact,
during his request for an involuntary-manslaughter instruction, defendant argued
that the shot fired during the struggle was the nonfatal shot to the victim's leg.[9]

Therefore, because there is no evidence that the shot fired during the struggle
killed the victim, and in light of the substantial evidence that the shot was not the
fatal shot, we conclude a rational view of the evidence does not support an
involuntary-manslaughter instruction.

We further disagree with the conclusion of the Court of Appeals that an instruction
for common-law involuntary manslaughter was premised on defendant's theory of
the case. Defendant's theory throughout trial was that someone else was
responsible for the victim's death. Consider defendant's opening statement, in
which he sets forth his theory:

What really occurred in this situation that you'll see is sure, my client Mr. Mendoza
and Mr. Tims went over to that location. They didn't go over there to harm
anybody. They went over there to buy what Mr. Stockdale and what Mr. Chillers
were in the business to sell, which is marijuana ...

***
You'll hear that, that Mr. Tims ... and another person were tussling over a handgun.
And while they're tussling, shots went off. And my client went over there to try to
prevent that from happening. And that's when the tussle broke out. When my
client's running out of that location, he gets shot by Mr. Chillers.
696*696 So, it's not my client that's doing any shooting in there. It's Mr. Chillers
who's causing all these problems and doing shooting in there.
***
So, what happened here is after my client, after he's running away and Mr. Chillers
shoots him and he's running to the car wounded, Mr. Tims on his own goes back
up to that front door with that revolver in his hand and started shooting into the
house. And that's when Mr. Stockdale gets shot in the chest.

***
This is what I believe the evidence will show ... That gun was never in the
possession of Mr. Mendoza. That gun was the one identified as being in the hands
of Mr. Tims when he went back on his own. [Emphasis added.]

It is, therefore, clear that defendant's theory was that Tims was responsible for the
victim's death.

In sum, we conclude that a rational view of the evidence did not support an
involuntary-manslaughter instruction. Therefore, it was not error for the trial court
to deny the instruction. Accordingly, we reverse the judgment of the Court of
Appeals.

IV. CONCLUSION

Manslaughter, in both its forms, is an inferior offense of murder within the

meaning of M.C.L. § 768.32. Therefore, an instruction is warranted when a
rational view of the evidence would support it. Van Wyck and its progeny are
overruled to the extent the Van Wyck analysis of the relationship between
manslaughter and murder holds otherwise.

In this case, we conclude a rational view of the evidence did not support an
involuntary-manslaughter instruction. Therefore, the trial court did not err when it
refused to give the instruction. Accordingly, we reverse the judgment of the Court
of Appeals and reinstate defendant's second-degree murder conviction.

CORRIGAN, WEAVER, TAYLOR and MARKMAN, JJ., concur.

CAVANAGH, J., concurring.

This Court granted leave to appeal to determine whether M.C.L. § 768.32 permits a
manslaughter instruction when a defendant has been charged with murder. Because
the majority has misinterpreted M.C.L. § 768.32, I must respectfully dissent from
its analysis, though I concur in its result.
The majority applies obiter dictum from People v. Cornell, 466 Mich. 335, 646
N.W.2d 127 (2002), to hold that an "inferior" offense, as articulated by the
Legislature in 1846, is limited to a necessarily included lesser offense.[1] While I
agree that manslaughter is an offense inferior to and necessarily included within
the crime of murder, I do not agree that this Court should limit instructions
authorized by M.C.L. § 768.32 to only those that are necessarily included in the
charged offense. Rather, I would hold that, when requested, a jury may be
instructed on lesser or "inferior" offenses of the crime charged, if those offenses
are supported by the evidence.

The proper scope of M.C.L. § 768.32 presents a question of statutory

interpretation, which we review de novo. In re MCI, 460 Mich. 396, 413, 596
N.W.2d 164 (1999).

697*697 II

The relevant portion of M.C.L. § 768.32 now provides:

(1) Except as provided in subsection (2), upon an indictment for an offense,

consisting of different degrees, as prescribed in this chapter, the jury, or the judge
in a trial without a jury, may find the accused not guilty of the offense in the
degree charged in the indictment and may find the accused person guilty of a
degree of that offense inferior to that charged in the indictment, or of an attempt to
commit that offense.[[2]]

Relying on established doctrines of interpretation, one cannot disagree that the first
step in discerning legislative intent requires review of the statutory text adopted by
the Legislature. House Speaker v. State Administrative Bd., 441 Mich. 547, 567,
495 N.W.2d 539 (1993). See also M.C.L. § 8.3a ("All words and phrases shall be
construed and understood according to the common and approved usage of the
language...."). If unambiguous, the Legislature will be presumed to have intended
the meaning expressed. Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483
N.W.2d 844 (1992). We often refer to the dictionary to discern a statute's plain
meaning. See Wayne Co. Prosecuting Attorney v. Levenburg & Richmond, 406
Mich. 455, 465-466, 280 N.W.2d 810 (1979) (dictionaries provide plain meaning).

The dispositive issue presented for review is the scope of the term "inferior," which
may be defined as follows:
Inferior. 1. Lower in place. 2. Lower in station, age, or rank in life. 3. Lower in
excellence or value; as a poem of inferior merit. 4. Subordinate; of less importance.
[American Dictionary of the English Language, Noah Webster, Vol. 1, (originally
published 1828, reprinted 1970).[3]]

This definition has changed little since the nineteenth century, and the meaning of
an offense "inferior" to another continues to suggest a lower offense, or one that is
somehow less than the charged crime.[4] Applied here, this interpretation supports a
"lesser offense" approach.

In spite of this textual evidence, the majority would prefer to adopt a "necessarily
included lesser offense" interpretation, assigning a meaning to "inferior" that
698*698 is contrary to its everyday usage, while providing no textual explanation
for its narrow construction. Instead, the majority adopts its obiter dictum from
Cornell and relies on several prudential (i.e., policy-based) reasons to reject an
interpretation of "inferior" that conforms with its everyday usage.

Foremost among the majority's rationale may be the alleged ease with which the
necessarily included lesser offense framework may be applied. Cornell, supra.
However, I cannot agree that the majority's framework can be applied more simply
than a "lesser offense" inquiry because each varies on the basis of the degree of
specificity with which one reviews the elements of a crime. This Court, for
example, has wavered on the precise issue presented here. In People v. Van Wyck,
402 Mich. 266, 262 N.W.2d 638 (1978), this Court held that manslaughter was not
a necessarily included lesser offense of murder:

The absence of mitigating circumstances need not be established in order to

convict one of first—or second-degree murder. Consequently, it cannot be said that
voluntary manslaughter is a necessarily included offense within the crime of
murder; it is incorrect to state that it is impossible to commit first—or second-
degree murder without having first committed manslaughter. [Id. at 269, 262
N.W.2d 638.]

As the majority correctly notes today, when viewed in general terms, "the only
element distinguishing murder from manslaughter is malice." Ante at 692. Hence,
manslaughter is both an "inferior" and a necessarily included lesser offense of
murder; the difference between Van Wyck and the Court's decision today results
from the degree of precision employed by the Court in its analysis of the elements
of murder and manslaughter.
Instead of addressing such difficulties, the majority ignores this and similar
inconsistencies. For example, although "felonious assault" is not strictly a
necessarily included lesser offense of "assault with intent to do great bodily harm
less than murder" because the former requires the use of a dangerous weapon, it is
clearly an "inferior" charge as prescribed by any reasonable interpretation of the
statute (i.e., "inferior"), yet the majority's approach provides no means by which to
recognize this relationship. Similarly troubling, the crime of "assault with intent to
do great bodily harm" is plainly included within the crime of "assault with intent to
murder," but our Courts have held that different degrees of malice (i.e., intent to do
great harm versus intent to murder) constitute cognate-not necessarily included-
offenses. See, e.g., People v. Norwood, unpublished opinion per curiam of the
Court of Appeals, issued March 20, 2001, 2001 WL 703961 (Docket No. 218207).
In sum, the majority's doctrine cannot logically provide the bright-line rule that it
seeks, and its narrow construction is not supported by the text.

III

Although, I do not dispute that the meaning of M.C.L. § 768.32 has been subject to
debate lately,[5] the majority has recently acknowledged that, as early as 1869, this
Court permitted convictions on "inferior" offenses:

[E]xtending to all cases in which the statute has substantially, or in effect, 699*699
recognized and provided for the punishment of offenses of different grades, or
degrees of enormity, wherever the charge for the higher grade includes a charge for
the less. In this view only, can any effect be given to it, as declaratory of, or
altering the common law. [Hanna v. People, 19 Mich. 316, 322 (1869).]

Before Cornell, this Court repeatedly affirmed this lesser offense approach,[6] in
accord with the plain meaning of the statute. In People v. Jones, 395 Mich. 379,
387, 236 N.W.2d 461 (1975), for example, this Court confirmed a case-by-case
approach to inferior offense instructions, acknowledging that the strict, common-
law rule, which had permitted lesser offense instructions only when necessarily
included in the crime charged, had been replaced by a statute that authorized a
broader range of convictions "inferior" to the crime charged. Although, the
majority attempts to claim its holding has a historical foundation, it, in fact, usurps
this Court's longstanding interpretation, which accords with the statute's plain
meaning.

IV
The majority may claim I have done nothing but pine for the "cognate" or related-
offense approach, which it expressly rejected in Cornell. To the degree that a
"cognate" offense is "inferior" to the crime charged, I cannot disagree. I remain
committed to the "lesser included offense" interpretation of "inferior" simply
because it is best able to honor the statutory text, as noted above.

Further, it accords with the longstanding doctrine that requires courts to construe
criminal statutes in favor of defendants. In United States v. Wiltberger, 18 U.S. (5
Wheat) 76, 95, 5 L.Ed. 37 (1820), Chief Justice Marshall noted:

The rule that penal laws are to be construed strictly, is perhaps not much less old
than construction itself. It is founded on the tenderness of the law for the rights of
individuals; and on the plain principle that the power of punishment is vested in the
legislative, not in the judicial department. It is the legislature, not the Court, which
is to define a crime, and ordain its punishment.

See also People v. Webb, 127 Mich. 29, 32, 86 N.W. 406 (1901) ("Penal statutes
must be strictly construed, and words used are to be given their popular, rather than
a technical, meaning."); Scalia, A Matter of 700*700 Interpretation (Princeton,
N.J.; Princeton University Press, 1997), p. 29 ("The rule of lenity is almost as old
as the common law itself, so I suppose that is validated by sheer antiquity.") Its
application here would give an accused the opportunity to request an instruction in
conformity with defense theories, when supported by the evidence.

As noted, this Court today unanimously affirms that a defendant facing a murder
charge may request a manslaughter instruction if supported by the evidence.
However, nothing in the record would support an involuntary-manslaughter
conviction in this case, which requires a finding of death, caused by an act of
defendant, with gross negligence. People v. Datema, 448 Mich. 585, 610-613, 533
N.W.2d 272 (1995) (Cavanagh, J., dissenting). Defendant's statement to the police
suggests only that he attempted to prevent the alleged gunman from shooting his
friend. On the facts presented, if the jury did not believe defendant was culpable of
murder beyond a reasonable doubt, the only reasonable alternative was acquittal
because defendant's statement to police indicated an attempt to save the life of
another. People v. Heflin, 434 Mich. 482, 554 n. 10, 456 N.W.2d 10 (1990) (Levin,
J., dissenting) (noting that the defense of another may justify homicide). To permit
a manslaughter conviction on the evidence presented would result in a conviction
against the great weight of the evidence. Therefore, I agree that the Court of
Appeals opinion should be vacated and that defendant's conviction should be
affirmed.

VI

Because the majority has adopted an interpretation of M.C.L. § 768.32 contrary to

its plain text and our long-settled rules of statutory construction, I cannot join its
rationale. However, because I agree that manslaughter is an offense "inferior" to
murder, and because the evidence does not support a manslaughter instruction, I
concur in the result only.

[1] Defendant did not cross-appeal to challenge the judgment of the Court of
Appeals affirming the trial court's decision not to give instructions on voluntary
manslaughter or careless use of a firearm.

[2] The concurrence criticizes the construction of M.C.L. § 768.32 set forth in
Cornell, arguing that the Court should apply the dictionary definition of "inferior."

We are confident that we applied the appropriate canon of statutory construction in

construing M.C.L. § 768.32 by giving "inferior offense" its common-law meaning
when it was codified by the Legislature. See Pulver v. Dundee Cement Co., 445
Mich. 68, 75, 515 N.W.2d 728 (1994)("words and phrases that have acquired a
unique meaning at common law are interpreted as having the same meaning when
used in statutes dealing with the same subject").

[3] Necessarily included lesser offenses are offenses in which the elements of the
lesser offense are completely subsumed in the greater offense. Cornell, supra at
356, 646 N.W.2d 127.

[4] Cognate offenses share several elements, and are of the same class or category
as the greater offense, but the cognate lesser offense has some elements not found
in the greater offense. Cornell, supra at 344, 646 N.W.2d 127.

[5] The concurrence criticizes the majority opinion for adopting "obiter dictum"
from Cornell to conclude that inferior offenses are limited to necessarily included
lesser offenses. We disagree with this mischaracterization of Cornell's analysis.

In Cornell, the Court was charged with the task of construing M.C.L. § 768.32(1),
because M.C.L. § 768.32(1) governs when instructions are given for "inferior"
offenses. To that end, we expressly adopted Justice Coleman's dissent in Jones,
infra, which would foreclose consideration of cognate lesser included offenses.
Cornell, supra at 353, 646 N.W.2d 127. See also Cornell, supra at 356 n. 9, 646
N.W.2d 127, in which we state, "as we have already explained, the wording of
M.C.L. § 768.32 also limits consideration of lesser offenses to necessarily included
lesser offenses." We then expressly held that a requested instruction on a
necessarily included lesser offense is proper if the charged greater offense requires
a jury to find a disputed factual element that is not part of the lesser offense and a
rational view of the evidence would support it. Id. at 357, 646 N.W.2d 127.

Accordingly, we disagree with the concurrence's characterization of the Cornell

analysis as "obiter dictum." Rather, the Cornell discussion of the limits of M.C.L. §
768.32 was central to our construction of the statute and thus central to the
resolution of the issues before the Cornell Court.

[6] MCL 750.316 provides in pertinent part:

(1) A person who commits any of the following is guilty of first degree murder and
shall be punished by imprisonment for life:

(a) Murder perpetrated by means of poison, lying in wait, or any other willful,
deliberate, and premeditated killing.

(b) Murder committed in the perpetration of, or attempt to perpetrate, arson,

criminal sexual conduct in the first, second, or third degree, child abuse in the first
degree, a major controlled substance offense, robbery, carjacking, breaking and
entering of a dwelling, home invasion in the first or second degree, larceny of any
kind, extortion, or kidnapping.

(c) A murder of a peace officer or a corrections officer committed while the peace
officer or corrections officer is lawfully engaged in the performance of any of his
or her duties as a peace officer or corrections officer, knowing that the peace
officer or corrections officer is a peace officer or corrections officer engaged in the
performance of his or her duty as a peace officer or corrections officer.

Although first-degree murder is defined by statute, the statute is understood to

include the common-law definition of murder. See People v. Riddle, 467 Mich.
116, 125-126, 649 N.W.2d 30 (2002). See also People v. Utter, 217 Mich. 74, 86,
185 N.W. 830 (1921).

[7] In addition to common-law manslaughter, the Legislature has also determined

that manslaughter shall exist in several other circumstances. See, e.g., M.C.L. §
750.322 (the willful killing of an unborn child by injury to its mother), M.C.L. §
750.323 (the killing of a quick child by use of medicine or an instrument), and
M.C.L. § 750.329 (a killing committed without malice by means of an
intentionally aimed firearm).

[8] The "benefit of clergy" was a political compromise between the state and the
church, intended to ensure errant clerics who were convicted in the royal court
were turned over to the ecclesiastical courts for sentencing.

[9] Defense counsel argued in support of the manslaughter instruction as follows:

Alternatively there's also involuntary manslaughter, now that I think about it, in
terms of that gun potentially accidentally [sic] going off during the struggle over
the gun at the time it's discharged. That's how I claim that the shot to the leg
happened, when they were struggling over the gun." [Emphasis added.]

Expert testimony established that the leg wound was not the fatal injury.

[1] MCL 768.32, formerly codified as tit. XXX, ch. 161, § 16, Rev. Stat. of 1846.

[2] The current subsection 2 refers to controlled-substance provisions. The original

statute provided:

Upon an indictment for any offence, consisting of different degrees, as prescribed

in this title, the jury may find the accused not guilty of the offence in the degree
charged in the indictment, and may find such accused person guilty of any degree
of such offence, inferior to that charged in the indictment, or of an attempt to
commit such offence. [Rev. Stat. of 1846, tit. XXX, ch. 161, § 16.]

[3] See also:

Inferior. Is usually employed in law to designate the lower of two grades of

authority, jurisdiction, or power. [Dictionary of Terms and Phrases used in
American or English Jurisprudence, Vol. 1, p. 603 (1879).]

Inferior. 1. Lower in position; situated below ... 3. Lower in degree, rank,

importance, quality, amount, or other respect; of less value or consideration; lesser;
subordinate. With to = lower than, less than, not so good or great as; unequal to....
[Oxford English Dictionary (2d ed.).]

Inferior ... 3. Lower in degree, rank, importance, quality, amount, or other respect;
of less value or consideration ... b. with to = lower than, less than, not so good or
great as; unequal to. [A New English Dictionary on Historical Principles, Murray,
Oxford (1901, originally published 1888).]

[4] Inferior. adj. 1. Situated under or beneath. 2. Low or lower in order, degree, or
rank. 3. Low or lower in quality, status, or estimation. [American Heritage
Dictionary of the English Language, New College Edition (1981).]

[5] Cornell, supra (noting in dicta that M.C.L. § 768.32 limits instructions to
necessarily included lesser offenses and overruling, inter alia, People v. Jones, 395
Mich. 379, 236 N.W.2d 461 [1975], People v. Chamblis, 395 Mich. 408, 236
N.W.2d 473 [1975]).

[6] See also People v. Andrus, 331 Mich. 535, 50 N.W.2d 310 (1951) (noting this
Court's treatment of M.C.L. § 768.32, which permits an instruction on lesser
offenses when supported by the evidence); People v. Jones, 273 Mich. 430, 263
N.W. 417 (1935) (holding that the court erred so as to require reversal when it
affirmatively excluded a lesser offense from the jury's consideration); People v.
Abbott, 97 Mich. 484, 56 N.W. 862 (1893) (reversing where the court failed to
instruct the jury on a lesser included offense); People v. Courier, 79 Mich. 366, 44
N.W. 571 (1890) (refusing the defendant's request for a new trial where the court
did provide the jury with a lesser included rape offense instruction); People v.
Prague, 72 Mich. 178, 40 N.W. 243 (1888) ("The crime of an assault with intent to
commit the crime of murder is one of a higher grade and greater enormity than the
crime of assault with intent to do great bodily harm less than the crime of murder.
It belongs to the catalogue of offenses against the lives and persons of individuals,
and we think the charge was authorized by the opinion of this Court in Hanna....");
People v. Warner, 53 Mich. 78, 18 N.W. 568 (1884) (a conviction for simple
assault may be had on any information charging assault on an officer and resisting
arrest); Campbell v. People, 34 Mich. 351 (1876) ("... under an indictment
charging a specific offense it was competent for the jury to find the respondent
guilty of a lesser offense included in it. The lesser offense of felonious assault is
necessarily included in the offense of rape; the completed offense being the
aggravation of the criminal assault.").

9 Cal.4th 300 (1994)

885 P.2d 1022

36 Cal. Rptr.2d 609

 THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL HANSEN, Defendant and Appellant.
Docket No. S036384.

Supreme Court of California.

December 30, 1994.

COUNSEL

Joan T. Anyon, under appointment by the Supreme Court, and E. Stephen Temko
for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Willliamson, Chief Assistant

Attorney General, Gary W. Schons, Assistant Attorney General, Howard Wayne,
Keith I. Motley, Holly D. Wilkens and Frederick R. Millar, Jr., Deputy Attorneys
General, for Plaintiff and Respondent.

OPINION

GEORGE, J.

In this case we must determine whether the offense of discharging a firearm at an

inhabited dwelling house (Pen. Code, § 246)[1] is a felony "inherently dangerous to
human life" for purposes of the second degree felony-murder doctrine, and, if so,
whether that doctrine nonetheless is inapplicable in the present case under the so-
called "merger" doctrine applied in People v. Ireland (1969) 70 Cal.2d 522 [75
Cal. Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323] and its progeny. For the reasons
explained hereafter, we conclude that this offense, for such purposes, is a felony
inherently dangerous to human life and does not "merge" with a resulting homicide
so as to preclude application of the felony-murder doctrine. Because the Court of
Appeal reached a similar conclusion, we affirm the judgment of that court
upholding defendant's conviction of second degree murder.

On September 19, 1991, defendant Michael Hansen, together with Rudolfo

Andrade and Alexander Maycott, planned to purchase $40 worth of
methamphetamine. With that purpose, defendant, accompanied by his girlfriend
Kimberly Geldon and Maycott, drove in defendant's Camaro to an apartment
duplex located in the City of San Diego. Upon arriving at the duplex, defendant
pounded on the door of the upstairs apartment where Christina Almenar resided
with her two children. When he received no response, defendant proceeded to
return to his automobile and was approached by Michael Echaves.

Echaves resided in the downstairs apartment with Martha Almenar (Christina's

sister) and Martha's two children, Diane Rosalez, thirteen years of age, and Louie
Miranda, five years of age. At the time, Diane and Louie were outside with
Echaves helping him with yard work. In response to a question from Echaves,
defendant said he was looking for Christina. When Echaves stated he had not seen
her, defendant asked whether Echaves would be able to obtain some crystal
methamphetamine (speed). After making a telephone call, Echaves informed
defendant that he would be able to do so. Defendant said he would attempt to
purchase the drug elsewhere but, if unsuccessful, would return.

Defendant and his companions departed but returned approximately 20 minutes

later. Defendant, accompanied by Echaves, Maycott, and Geldon, then drove a
short distance to another apartment complex. Defendant parked his vehicle, gave
Echaves two $20 bills, and told Echaves he would wait while Echaves obtained the
methamphetamine. Echaves said he would be back shortly.

When Echaves failed to return, defendant and his companions proceeded to

Echaves's apartment. Defendant knocked on the door and the windows. Diane and
Louie were inside the apartment alone but did not respond. Their mother, Martha,
had left the apartment to meet Echaves, who had telephoned her after eluding
defendant. After meeting Echaves at a hardware store, Martha telephoned her
children from a public telephone booth. Diane answered and told her mother that
the "guys in the Camaro" had returned, pounded on the door, and then had left.

Meanwhile, defendant, Maycott, and Geldon returned to the location where

Andrade was waiting for them, acquiring en route a handgun from an
acquaintance. The three men then decided to return to Echaves's apartment with the
objective either of recovering their money or physically assaulting 306*306
Echaves. At approximately 7:30 p.m., defendant approached the apartment
building in his automobile with the lights turned off, and then from the vehicle
fired the handgun repeatedly at the dwelling. At the time, Diane was inside the
apartment, in the living room with her brother. The kitchen and living room lights
were on. Diane was struck fatally in the head by one of the bullets fired by
defendant.
On the basis of information furnished by witnesses to the shooting, the police were
able to trace to defendant the vehicle from which the shots had been fired. On
September 20, at approximately 3 a.m., police officers arrested defendant at the
room of a motel where he was staying. Searching the trunk of his Camaro, the
police discovered a nine-millimeter semiautomatic handgun and an empty
ammunition clip for the weapon.

Five bullet holes were found at the scene of the homicide inside the apartment. It
later was determined that shell casings and three bullets recovered at that location
had been fired from the handgun found inside the trunk of defendant's vehicle.

That same morning, at 7 a.m., defendant was advised of his Miranda rights
(Miranda v. Arizona (1965) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10
A.L.R.3d 974]) and waived them. He then confessed to having fired several shots
from a handgun aimed at the apartment building. He stated that he had been
waiting for someone whom he believed "took off with forty bucks" belonging to
him, that he was shooting at "[j]ust the house," and that he would not have engaged
in this conduct had he known "those kids were in there."

At trial, as part of the defense case, defendant testified that on the day of the
shooting he had consumed a substantial quantity of alcohol and some crystal
methamphetamine. He further testified that, when he initially returned to Echaves's
apartment, he had observed the lights were on, but after knocking on the door and
receiving no response, he believed no one was inside. He denied any recollection
of actually having fired the shots at the apartment, although he remembered
hearing "four or five loud noises," and denied having intended to harm anyone.

A neurologist and a neuropsychologist testified that defendant suffered from a mild

prefrontal lobe injury that, in conjunction with the use of alcohol and drugs, could
result in sudden, unplanned, and impulsive actions. A toxicologist testified
regarding defendant's blood-alcohol level and its possible effects, based upon
defendant's report as to the amount of alcohol he had consumed prior to the
shooting. (His testimony did not refer to the 307*307 possible effect of defendant's
use of crystal methamphetamine, as testified to by defendant.)

The trial court instructed the jury on several theories of murder, including second
degree felony murder as an unlawful killing that occurs during the commission or
attempted commission of a felony inherently dangerous to human life, and further
instructed that the felony of shooting at an inhabited dwelling is inherently
dangerous to human life. The jury returned a verdict finding defendant guilty of
second degree murder (without specifying the theory upon which the conviction
was based), and found true the allegation that he personally used a firearm during
the commission of that offense (§ 12022.5, subd. (a)). The jury also found
defendant guilty of discharging a firearm at an inhabited dwelling. At sentencing,
the trial court imposed a term of imprisonment of 15 years to life for the second
degree murder conviction, plus a consecutive term of 4 years for the personal-use-
of-a-firearm enhancement. The court also imposed a term of five years for the
offense of shooting at an inhabited dwelling, but stayed the sentence for that
offense pursuant to section 654.

On appeal, defendant asserted, among other contentions, that the trial court erred in
instructing the jury on second degree felony murder based upon the underlying
felony of discharging a firearm at an inhabited dwelling, because the latter offense
merged with the resulting homicide within the meaning of People v. Ireland,
supra, 70 Cal.2d 522. Defendant relied upon People v. Wesley (1970) 10 Cal.
App.3d 902, 905-910 [89 Cal. Rptr. 377], a decision holding that the offense
proscribed by section 246 was an integral part of the resulting homicide and
therefore could not support a second degree felony-murder conviction. Defendant
also asserted as error the imposition of the firearm-use enhancement. Concluding
the underlying felony proscribed by section 246 did not merge with the homicide,
the Court of Appeal affirmed the conviction of second degree murder but struck
the section 12022.5 firearm-use enhancement.

II

Murder is the unlawful killing of a human being, or a fetus, with malice

aforethought. (1) (§ 187, subd. (a).) Second degree murder is the unlawful killing
of a human being with malice, but without the additional elements (i.e.,
willfulness, premeditation, and deliberation) that would support a conviction of
first degree murder. (§§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4
Cal.4th 91, 102 [13 Cal. Rptr.2d 864, 840 P.2d 969].)

(2) Malice may be express or implied. (§ 188.) It is express "when there is

manifested a deliberate intention unlawfully to take away the life of a 308*308
fellow creature." (§ 188.) It is implied "when no considerable provocation appears,
or when the circumstances attending the killing show an abandoned and malignant
heart." (§ 188.) We have held that implied malice has both a physical and a mental
component, the physical component being the performance of "`an act, the natural
consequences of which are dangerous to life,'" and the mental component being the
requirement that the defendant "`knows that his conduct endangers the life of
another and ... acts with a conscious disregard for life.'" (People v. Patterson
(1989) 49 Cal.3d 615, 626 [262 Cal. Rptr. 195, 778 P.2d 549]; People v. Watson
(1981) 30 Cal.3d 290, 300 [179 Cal. Rptr. 43, 637 P.2d 279].)

(3) The felony-murder rule imputes the requisite malice for a murder conviction to
those who commit a homicide during the perpetration of a felony inherently
dangerous to human life. "Under well-settled principles of criminal liability a
person who kills — whether or not he is engaged in an independent felony at the
time — is guilty of murder if he acts with malice aforethought. The felony-murder
doctrine, whose ostensible purpose is to deter those engaged in felonies from
killing negligently or accidentally, operates to posit the existence of that crucial
mental state — and thereby to render irrelevant evidence of actual malice or the
lack thereof — when the killer is engaged in a felony whose inherent danger to
human life renders logical an imputation of malice on the part of all who commit
it." (People v. Satchell (1971) 6 Cal.3d 28, 43 [98 Cal. Rptr. 33, 489 P.2d 1361, 50
A.L.R.3d 383], cited by People v. Patterson, supra, 49 Cal.3d 615, 626.)

The felony-murder rule applies to both first and second degree murder. Application
of the first degree felony-murder rule is invoked by the perpetration of one of the
felonies enumerated in section 189. In People v. Ford (1964) 60 Cal.2d 772, 795
[36 Cal. Rptr. 620, 388 P.2d 892], the court restricted the felonies that could
support a conviction of second degree murder, based upon a felony-murder theory,
to those felonies that are "inherently dangerous to human life." We have explained
that the justification for the imputation of implied malice under these
circumstances is that, "when society has declared certain inherently dangerous
conduct to be felonious, a defendant should not be allowed to excuse himself by
saying he was unaware of the danger to life...." (People v. Patterson, supra, 49
Cal.3d at p. 626.) We also have reasoned that, "`[i]f the felony is not inherently
dangerous, it is highly improbable that the potential felon will be deterred; he will
not anticipate that any injury or death might arise solely from the fact that he will
commit the felony.'" (People v. Burroughs (1984) 35 Cal.3d 824, 829 [201 Cal.
Rptr. 319, 678 P.2d 894].) Thus, under the latter circumstances the commission of
the felony could not serve logically as the basis for imputation of malice. (See
People v. Henderson (1977) 19 Cal.3d 86, 93-94 [137 Cal. Rptr. 1, 560 P.2d
1180].)

309*309 In determining whether a felony is inherently dangerous, the court looks

to the elements of the felony in the abstract, "not the `particular' facts of the case,"
i.e., not to the defendant's specific conduct. (People v. Williams (1965) 63 Cal.2d
452, 458, fn. 5 [47 Cal. Rptr. 7, 406 P.2d 647].)
Past decisions of this court have explained further the concept of an inherently
dangerous felony. In People v. Burroughs, supra, 35 Cal.3d 824, 833, we held that
an inherently dangerous felony is one which, "by its very nature, ... cannot be
committed without creating a substantial risk that someone will be killed...." And,
most recently, in People v. Patterson, supra, 49 Cal.3d 615, we specified that, "for
purposes of the second degree felony-murder doctrine, an `inherently dangerous
felony' is an offense carrying `a high probability' that death will result." (Id., at p.
627.)

Felonies that have been found inherently dangerous to human life, in the abstract
— thus supporting application of the second degree felony-murder rule — include
furnishing a poisonous substance (methyl alcohol) (People v. Mattison (1971) 4
Cal.3d 177 [93 Cal. Rptr. 185, 481 P.2d 193]), reckless or malicious possession of
a destructive device (People v. Morse (1992) 2 Cal. App.4th 620, 646 [3 Cal.
Rptr.2d 343]), and kidnapping for ransom (People v. Ordonez (1991) 226 Cal.
App.3d 1207, 1225 [277 Cal. Rptr. 382]).

(4) The initial question presented in the case before us is whether the underlying
felony involved — willful discharge of a firearm at an inhabited dwelling — is an
inherently dangerous felony for purposes of the second degree felony-murder rule.
The offense in question is defined in section 246, which provides in pertinent part:
"Any person who shall maliciously and willfully discharge a firearm at an
inhabited dwelling house ... is guilty of a felony.... [¶] As used in this section,
`inhabited' means currently being used for dwelling purposes, whether occupied or
not."[2] As we shall explain, we conclude that this felony, considered in the
abstract, involves a high probability that death will result and therefore is an
inherently dangerous felony under the governing principles set forth above, for
purposes of the second degree felony-murder doctrine.

Although our court has not had occasion previously to render a direct holding on
the question whether the offense proscribed by section 246 is an 310*310
inherently dangerous felony for purposes of the second degree felony-murder
doctrine, the reasoning and language of one of our prior decisions — People v.
Satchell, supra, 6 Cal.3d 28 — provide a rather clear indication of this court's view
on this issue. In Satchell, the court held the felony of possession of a concealable
firearm by a felon (§ 12021), considered in the abstract, was not inherently
dangerous to human life and therefore would not support an instruction on second
degree felony murder. The court concluded that "mere passive possession" of a
firearm, even by a felon, could not properly supply the element of malice in a
murder prosecution. (6 Cal.3d at p. 42.) The court went on to say, however, that if
passive possession ripened into a felonious act in which danger to human life was
inherent, the purposes of the felony-murder rule would be served by its application,
because "it is the deterrence of such acts by felons which the rule is designed to
accomplish." (6 Cal.3d at p. 43.) The court noted that a "ready example" of such a
felony was the act proscribed by section 246, discharging a firearm at an inhabited
dwelling. (6 Cal.3d at p. 43, fn. 22.)

Although the pertinent language in Satchell clearly was dictum, the reasoning
underlying this language remains sound following our decision in People v.
Patterson, supra, 49 Cal.3d 615. The discharge of a firearm at an inhabited
dwelling house — by definition, a dwelling "currently being used for dwelling
purposes, whether occupied or not" (§ 246) — is a felony whose commission
inherently involves a danger to human life. An inhabited dwelling house is one in
which persons reside (People v. Rodriguez (1986) 42 Cal.3d 1005, 1018 [232 Cal.
Rptr. 132, 728 P.2d 202]) and where occupants "are generally in or around the
premises." (People v. White (1992) 4 Cal. App.4th 1299, 1303 [6 Cal. Rptr.2d
259], italics in original.) In firing a gun at such a structure, there always will exist a
significant likelihood that an occupant may be present. Although it is true that a
defendant may be guilty of this felony even if, at the time of the shooting, the
residents of the inhabited dwelling happen to be absent (People v. Rodriguez,
supra, 42 Cal.3d at p. 1018), the offense nonetheless is one that, viewed in the
abstract — as shooting at a structure that currently is used for dwelling purposes —
poses a great risk or "high probability" of death within the meaning of Patterson.
The nature of the other acts proscribed by section 246 reinforces the conclusion
that the Legislature viewed the offense of discharging a firearm at an inhabited
dwelling as posing a risk of death comparable to that involved in shooting at an
occupied building or motor vehicle.

Furthermore, application of the second degree felony-murder rule to a homicide

resulting from a violation of section 246 directly would serve the fundamental
rationale of the felony-murder rule — the deterrence of negligent or accidental
killings in the course of the commission of dangerous felonies. 311*311 The tragic
death of innocent and often random victims, both young and old, as the result of
the discharge of firearms, has become an alarmingly common occurrence in our
society — a phenomenon of enormous concern to the public. By providing notice
to persons inclined to willfully discharge a firearm at an inhabited dwelling —
even to those individuals who would do so merely to frighten or intimidate the
occupants, or to "leave their calling card" — that such persons will be guilty of
murder should their conduct result in the all-too-likely fatal injury of another, the
felony-murder rule may serve to deter this type of reprehensible conduct, which
has created a climate of fear for significant numbers of Californians even in the
privacy of their own homes.

Accordingly, we hold that the offense of discharging a firearm at an inhabited

dwelling is an "inherently dangerous felony" for purposes of the second degree
felony-murder rule.

III

(5) Defendant contends that, even if the section 246 felony of discharging a firearm
is inherently dangerous to human life, the commission of that felony in the present
case "merged" with the resulting homicide, within the meaning of People v.
Ireland, supra, 70 Cal.2d 522, thereby precluding application of the second degree
felony-murder rule.

As we shall explain, defendant's contention rests upon an unduly expansive view of

the scope of the "merger" doctrine applied in Ireland. Prior to our decision in
Ireland, the "merger" doctrine had been developed in other jurisdictions as a
shorthand explanation for the conclusion that the felony-murder rule should not be
applied in circumstances where the only underlying (or "predicate") felony
committed by the defendant was assault. The name of the doctrine derived from
the characterization of the assault as an offense that "merged" with the resulting
homicide. In explaining the basis for the merger doctrine, courts and legal
commentators reasoned that, because a homicide generally results from the
commission of an assault, every felonious assault ending in death automatically
would be elevated to murder in the event a felonious assault could serve as the
predicate felony for purposes of the felony-murder doctrine. Consequently,
application of the felony-murder rule to felonious assaults would usurp most of the
law of homicide, relieve the prosecution in the great majority of homicide cases of
the burden of having to prove malice in order to obtain a murder conviction, and
thereby frustrate the Legislature's intent to punish certain felonious assaults
resulting in death (those committed with malice aforethought, and therefore
punishable as murder) more harshly than other felonious assaults 312*312 that
happened to result in death (those committed without malice aforethought, and
therefore punishable as manslaughter). (See Note, The Doctrine of Merger in
Felony-Murder and Misdemeanor-Manslaughter (1960) 35 St. Johns L. Rev. 109,
117; see also Crump & Crump, In Defense of the Felony Murder Doctrine (1985) 8
Harv. J.L. & Pub. Pol'y. 359, 379; Note, Application of the Merger Doctrine to the
Felony Murder Rule in Texas: The Merger Muddle (1990) 42 Baylor L. Rev. 535;
People v. Moran (1927) 246 N.Y. 100 [158 N.E. 35, 36-37] (opn. of Cardozo,
C.J.).) One commentator explains that the merger rule applied to assaults is
supported by the policy of preserving some meaningful domain in which the
Legislature's careful gradation of homicide offenses can be implemented. (Crump
& Crump, In Defense of the Felony Murder Doctrine, op. cit. supra, 8 Harv. J.L. &
Pub. Pol'y. 359, 379.)

In People v. Ireland, supra, 70 Cal.2d 522, we adopted the merger rule in a case
involving the underlying felony of assault with a deadly weapon, where the
defendant had shot and killed his wife. The jury was instructed that it could return
a second degree felony-murder verdict based upon the underlying felony of assault
with a deadly weapon, and the defendant was convicted of second degree murder.

On appeal, this court reversed, reasoning that "[t]o allow such use of the felony-
murder rule would effectively preclude the jury from considering the issue of
malice aforethought in all cases wherein homicide has been committed as a result
of a felonious assault — a category which includes the great majority of all
homicides. This kind of bootstrapping finds support neither in logic nor in law."
(70 Cal.2d at p. 539.) The court therefore concluded that the offense of assault with
a deadly weapon, which was "an integral part of" and "included in fact" within the
homicide, could not support a second degree felony-murder instruction. (Ibid.)

Subsequent decisions have applied the Ireland rule to other felonies involving
assault or assault with a deadly weapon. (See People v. Smith (1984) 35 Cal.3d 798
[201 Cal. Rptr. 311, 678 P.2d 886] [felony child abuse of the assaultive category];
People v. Wilson (1969) 1 Cal.3d 431, 440 [82 Cal. Rptr. 494, 462 P.2d 22]
[burglary with intent to commit the felony of assault with a deadly weapon];
People v. Landry (1989) 212 Cal. App.3d 1428, 1437-1439 [261 Cal. Rptr. 254]
[assault with a deadly weapon].)

Our court, however, has not extended the Ireland doctrine beyond the context of
assault, even under circumstances in which the underlying felony plausibly could
be characterized as "an integral part of" and "included in fact within" the resulting
homicide. The decision in People v. Mattison, supra, 4 313*313 Cal.3d 177,
provides an apt example. In that case, the defendant and the victim both were
inmates of a correctional institution. The defendant worked as a technician in the
medical laboratory. He previously had offered to sell alcohol to inmates, leading
the victim, an alcoholic, to seek alcohol from him. The defendant supplied the
victim with methyl alcohol, resulting in the victim's death by methyl alcohol
poisoning.
At trial, the court instructed on felony murder based upon the felony of mixing
poison with a beverage, an offense proscribed by the then current version of
section 347 ("`Every person who wilfully mingles any poison with any food, drink
or medicine, with intent that the same shall be taken by any human being to his
injury, is guilty of a felony.'") (4 Cal.3d at p. 184.) The defendant was convicted of
second degree murder. On appeal, contending that the trial court had erred in
instructing the jury on felony murder, the defendant maintained that, on the facts of
his case, the underlying felony (§ 347) was "an integral part of" and "included in
fact within" the resulting murder, precluding application of the felony-murder rule.
(4 Cal.3d at p. 185.)

In Mattison, supra, 4 Cal.3d 177, in rejecting the defendant's contention and

affirming his second degree murder conviction, we found that the predicate felony
(§ 347) presented an "entirely different situation from the one that confronted us in
Ireland," where the underlying felony was assault with a deadly weapon. (4 Cal.3d
at p. 185.) We concluded that the merger rule was inapplicable because, in
furnishing the methyl alcohol to the victim, the defendant exhibited a collateral
and independent felonious design that was separate from the resulting homicide.
Adopting the rule and reasoning articulated in People v. Taylor (1970) 11 Cal.
App.3d 57 [89 Cal. Rptr. 697], we held that where the underlying felony is
committed with a design collateral to, or independent of, an intent to cause injury
that would result in death, "[g]iving a felony-murder instruction in such a situation
serves rather than subverts the purpose of the rule." (4 Cal.3d at p. 185.)

The Court of Appeal's decision in People v. Taylor, supra, 11 Cal. App.3d 57,
upon which Mattison explicitly relied, provides additional guidance concerning the
rationale of our decision in Mattison. In Taylor, the victim died as a result of an
overdose of heroin, which had been furnished to her by the defendant. The
defendant was convicted of second degree murder, and the question presented was
whether application of the felony-murder rule constituted error under Ireland. The
Court of Appeal in Taylor first acknowledged the confusion that arose from the
circumstance that, although Ireland involved an assault with a deadly weapon (a
felony to which the merger rule traditionally has been applied), the broad language
of Ireland could be 314*314 interpreted as extending that rule to all felonies that
constitute "an integral part of the homicide," potentially encompassing all felonies
closely related to a homicide (and therefore possibly every felony inherently
dangerous to human life). (Id., at p. 60.) To clarify the ambiguity created by
Ireland, the Court of Appeal in Taylor sought to pinpoint the precise rationale of
the rule in Ireland, in the process reviewing the New York decisions, cited by the
court in Ireland, that had applied the merger doctrine. (Id., at pp. 60-61.)
After analyzing New York decisional law, and concluding that Ireland's "integral
part of the homicide" language did not constitute the crucial test in determining the
existence of merger, the court in Taylor held that a felony does not merge with a
homicide where the act causing death was committed with a collateral and
independent felonious design separate from the intent to inflict the injury that
caused death. (11 Cal. App.3d at pp. 61, 63.) The court explained its reasoning as
follows: when the Legislature has prescribed that an assault resulting in death
constitutes second degree murder if the felon acts with malice, it would subvert the
legislative intent for a court to apply the felony-murder rule automatically to
elevate all felonious assaults resulting in death to second degree murder even
where the felon does not act with malice. In other words, if the felony-murder rule
were applied to felonious assaults, all such assaults ending in death would
constitute murder, effectively eliminating the requirement of malice — a result
clearly contrary to legislative intent. The court in Taylor further explained,
however, that when the underlying or predicate felony is not assault, but rather is a
felony such as the furnishing of heroin involved in Taylor, application of the
felony-murder rule would not subvert the legislative intent, because "this is simply
not a situation where the Legislature has demanded a showing of actual malice, as
distinguished from malice implied in law by way of the felony-murder rule." (Id.,
at p. 63, fn. omitted.)

We agree with Taylor's definition of the scope of the Ireland rule and its rejection
of the premise that Ireland's "integral part of the homicide" language constitutes
the crucial test in determining the existence of merger. Such a test would be
inconsistent with the underlying rule that only felonies "inherently dangerous to
human life" are sufficiently indicative of a defendant's culpable mens rea to
warrant application of the felony-murder rule. (See People v. Satchell, supra, 6
Cal.3d 28, 43.) The more dangerous the felony, the more likely it is that a death
may result directly from the commission of the felony, but resort to the "integral
part of the homicide" language would preclude application of the felony-murder
rule for those felonies that are most likely to result in death and that are,
consequently, the felonies as to which the felony-murder doctrine is most likely to
act as a deterrent (because the perpetrator could foresee the great likelihood that
death may result, negligently or accidentally).

315*315 We decline, however, to adopt as the critical test determinative of merger

in all cases the following language that appears in Taylor, quoting a decision of a
New York court: that the rationale for the merger doctrine does not encompass a
felony "`committed with a collateral and independent felonious design.'" (People v.
Taylor, supra, 11 Cal. App.3d at p. 63; see also People v. Burton (1971) 6 Cal.3d
375, 387 [99 Cal. Rptr. 1, 491 P.2d 793].) Under such a test, a felon who acts with
a purpose other than specifically to inflict injury upon someone — for example,
with the intent to sell narcotics for financial gain, or to discharge a firearm at a
building solely to intimidate the occupants — is subject to greater criminal liability
for an act resulting in death than a person who actually intends to injure the person
of the victim. Rather than rely upon a somewhat artificial test that may lead to an
anomalous result, we focus upon the principles and rationale underlying the
foregoing language in Taylor, namely, that with respect to certain inherently
dangerous felonies, their use as the predicate felony supporting application of the
felony-murder rule will not elevate all felonious assaults to murder or otherwise
subvert the legislative intent.

In the present case, as in Mattison and Taylor, application of the second degree
felony-murder rule would not result in the subversion of legislative intent. Most
homicides do not result from violations of section 246, and thus, unlike the
situation in People v. Ireland, supra, 70 Cal.2d 522, application of the felony-
murder doctrine in the present context will not have the effect of "preclud[ing] the
jury from considering the issue of malice aforethought ... [in] the great majority of
all homicides." (Id., at p. 539.) Similarly, application of the felony-murder doctrine
in the case before us would not frustrate the Legislature's deliberate calibration of
punishment for assaultive conduct resulting in death, based upon the presence or
absence of malice aforethought. As in Taylor, this is not a situation in which the
Legislature has demanded a showing of actual malice (apart from the statutory
requirement that the firearm be discharged "maliciously and willfully") in order to
support a second degree murder conviction. Indeed, as discussed above,
application of the felony-murder rule, when a violation of section 246 results in the
death of a person, clearly is consistent with the traditionally recognized purpose of
the second degree felony-murder doctrine — namely the deterrence of negligent or
accidental killings that occur in the course of the commission of dangerous
felonies.

The Texas Court of Criminal Appeals recently applied similar reasoning in

upholding a murder conviction that occurred after a jury was instructed on felony
murder based upon underlying felonious conduct involving the discharge of a
firearm into an occupied dwelling. (Aguirre v. State (Tex. Crim. App. 1987) 732
S.W.2d 320, 324-325 [opn. on rehg.].) The court 316*316 viewed the defendant's
conduct of "attempting to blow open a door with a shotgun" as an offense that did
not "merge" with the resulting homicide. (Id., at p. 325.)
In rendering our decision in the present case, we disapprove of the holding in
People v. Wesley, supra, 10 Cal. App.3d 902, in which the Court of Appeal, in
construing Ireland, concluded that the felony proscribed by section 246 merged
with a resulting homicide because the felony was in fact "an integral part" and a
necessary element of the homicide. (10 Cal. App.3d at p. 907.) As is apparent from
our earlier discussion in the present opinion, the appellate court's reliance in
Wesley upon this particular language, as providing the crucial test in determining
the existence of merger, was misplaced.

For the foregoing reasons, we conclude that the offense of discharging a firearm at
an inhabited dwelling house does not "merge" with a resulting homicide within the
meaning of the Ireland doctrine, and therefore that this offense will support a
conviction of second degree felony murder. Accordingly, the trial court did not err
in instructing the jury on a second degree felony-murder theory based upon the
underlying felony of discharging a firearm at an inhabited dwelling house.

IV

The Court of Appeal struck the four-year term of imprisonment imposed for the
firearm-use enhancement (§ 12022.5, subd. (a)) on the ground that use of a firearm
is an element of second degree felony murder when such murder is based upon the
underlying felony of discharging a firearm at an inhabited dwelling (§ 246). The
Court of Appeal reasoned that, although the jury returned a general verdict
convicting defendant of second degree murder (without specifying the theory
relied upon), the jury "found true all element[s] necessary for a conviction of
murder based on the felony-murder," and firearm use was an essential element of
the underlying felony of discharging a firearm at an inhabited dwelling.

(6) The People contend the Court of Appeal erred in striking the firearm-use
enhancement, because firearm use is not an essential component of the crime of
second degree murder considered in the abstract.

We agree. The Court of Appeal erred in its construction of the limitation upon the
application of the firearm-use enhancement, set forth in section 12022.5,
subdivision (a), which at the time of sentencing provided in pertinent part: "[A]ny
person who personally uses a firearm in the commission ... of a felony shall, upon
conviction of that felony ... be punished 317*317 by an additional term of
imprisonment in the state prison for three, four, or five years, unless use of a
firearm is an element of the offense of which he or she was convicted." (Italics
added.)[3] The phrase "element of the offense" signifies an essential component of
the legal definition of the crime, considered in the abstract. (People v. Ross (1994)
28 Cal. App.4th 1151, 1156 [33 Cal. Rptr.2d 894]; People v. Zamora (1991) 230
Cal. App.3d 1627, 1636 [282 Cal. Rptr. 100].) In the present case, the crime of
which defendant was convicted was second degree murder. That offense,
considered in the abstract, does not include use of a firearm as an element. Second
degree murder may be committed in a myriad of ways, some that involve use of a
firearm, and others, such as stabbing, poisoning, or strangling, that do not involve
use of this type of weapon. Under section 12022.5, subdivision (a), the
enhancement applies unless "use of a firearm is an element of the offense," and not
merely the means by which the offense was committed or the factual predicate of a
theory upon which the conviction was based. (See People v. Ross, supra, 28 Cal.
App.4th at p. 1156; People v. Quesada (1980) 113 Cal. App.3d 533, 540 [169 Cal.
Rptr. 881] ["The crime of manslaughter may be committed in many ways without a
firearm; the fact that this particular crime was committed with use of a firearm
does not make such use an `essential element' of the offense."].) In decreeing that
murder committed by use of a firearm should be punished more severely than
murder committed without resort to such a weapon, the Legislature has not
exempted those convictions in which the murder conviction rests upon the felony-
murder rule.

For these reasons, the trial court did not err in imposing an additional four-year
term of imprisonment for the firearm-use enhancement.

The judgment of the Court of Appeal is reversed to the extent that it strikes the
firearm-use enhancement, and in all other respects the judgment is affirmed.

Lucas, C.J., Arabian, J., and Baxter, J., concurred.

WERDEGAR, J., Concurring.

I concur in the judgment and in the reasoning of the majority on the question
whether the offense of discharging a firearm at an inhabited dwelling in violation
of Penal Code section 246 is an inherently dangerous felony for purposes of the
second degree felony-murder rule. I write separately to express my understanding
of the "merger" doctrine, as articulated in People v. Ireland (1969) 70 Cal.2d 522
[75 318*318 Cal. Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323] (Ireland) and
succeeding decisions, and as applied here.
I join the majority in rejecting the premise Ireland's "integral part of the homicide"
language is decisive of the merger issue in this case. (Maj. opn., ante, at p. 314.) In
my view, however, People v. Mattison (1971) 4 Cal.3d 177 [93 Cal. Rptr. 185, 481
P.2d 193] (Mattison), adopting the reasoning of the Court of Appeal in People v.
Taylor (1970) 11 Cal. App.3d 57 [89 Cal. Rptr. 697] (Taylor), sets forth the
operative test. Those cases require us to determine whether the underlying felony
was committed with a "collateral and independent felonious design." (Mattison,
supra, 4 Cal.3d at p. 185; Taylor, supra, 11 Cal. App.3d at p. 61.) Unlike the
majority, I see no reason not to follow those decisions. I do not share the majority's
concern that application of the Mattison and Taylor rule leads to the anomalous
result of punishing one who does not intend to injure more harshly than one who
does. One who commits a felony inherently dangerous to human life with the
intent to inflict injury is, in all probability, guilty of second degree murder under
the implied malice theory. It follows there likely will be no disparity in the
respective criminal liability of the two offenders; thus, the anomaly the majority
fears is more apparent than real.

The evidence in this case supports the conclusion defendant entertained a collateral
and independent felonious design under Mattison and Taylor, namely to intimidate
Echaves by firing shots into his house. Accordingly, I join in the disposition this
court's judgment will effect.

MOSK, J., Concurring and Dissenting.

I concur in the judgment to the extent that it affirms the judgment of the Court of
Appeal affirming defendant's conviction of discharging a firearm at an inhabited
dwelling house in violation of Penal Code section 246. This conviction was not
affected by reversible error.

By contrast, I dissent from the judgment to the extent that it affirms the judgment
of the Court of Appeal affirming defendant's conviction of murder in the second
degree under Penal Code sections 187, 188, and 189. This conviction was affected
by reversible error when the superior court instructed the jury on second degree
felony murder based on discharge of a firearm at an inhabited dwelling house.

I also dissent from the judgment to the extent that it reverses the judgment of the
Court of Appeal setting aside an enhancement of defendant's sentence for personal
use of a firearm in the commission of murder in the second degree, within the
meaning of Penal Code section 12022.5. This sentence 319*319 enhancement must
be set aside as without legal predicate because defendant's second degree murder
conviction, on which it depends, must itself be set aside.

Murder is defined by statute as "the unlawful killing of a human being, or a fetus,

with malice aforethought." (Pen. Code, § 187, subd. (a).) "Such 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." (Id., § 188.)

Murder is of the first degree, pursuant to statute, when it consists of a murder, i.e.,
an unlawful killing with malice aforethought, that "is perpetrated by means of a
destructive device or explosive, knowing use of ammunition designed primarily to
penetrate metal or armor, poison, lying in wait, torture, or by any other kind of
willful, deliberate, and premeditated killing...." (Pen. Code, § 189.)

Murder is also of the first degree, pursuant to statute, when it simply comprises an
unlawful killing, even without malice aforethought, that "is committed in the
perpetration of, or attempt to perpetrate," certain enumerated felonies. (Pen. Code,
§ 189; see generally, People v. Dillon (1983) 34 Cal.3d 441, 462-472 [194 Cal.
Rptr. 390, 668 P.2d 697] (plur. opn. of Mosk, J.); accord, id. at p. 490 (conc. opn.
of Kaus, J.).)

Murder is of the second degree, pursuant to statute, when it consists of any murder
that is not of the first degree. (Pen. Code, § 189.)

Murder is also of the second degree, by judicial decision, when it simply comprises
an unlawful killing, even without malice aforethought, that directly results from an
unenumerated felony that is inherently dangerous to human life. (E.g., People v.
Ford (1964) 60 Cal.2d 772, 795 [36 Cal. Rptr. 620, 388 P.2d 892].) In determining
whether a felony is inherently dangerous to human life, "we look to the elements of
the felony in the abstract, not the particular `facts' of the case." (People v. Williams
(1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal. Rptr. 7, 406 P.2d 647].) So viewed, a
felony is inherently dangerous to human life if, and only if, it carries "`a high
probability' that death will result." (People v. Patterson (1989) 49 Cal.3d 615, 627
[262 Cal. Rptr. 195, 778 P.2d 549] (lead opn. of Kennard, J.); accord, id. at p. 640
(conc. & dis. opn. of Mosk, J.); id. at p. 641 (conc. & dis. opn. of Panelli, J.).)
320*320 At issue is the second degree felony-murder rule. This doctrine arises not
from any statute enacted by the Legislature but rather from the common law made
by the courts. "[T]he second degree felony-murder rule remains, as it has been
since 1872, a judge-made doctrine without any express" — or implied — "basis in
the Penal Code...." (People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19 (plur. opn.
of Mosk, J.); accord, id. at p. 490 (conc. opn. of Kaus, J.) [semble]; People v.
Burroughs (1984) 35 Cal.3d 824, 829, fn. 3 [201 Cal. Rptr. 319, 678 P.2d 894].)[1]
Contrary to the majority's assertion (maj. opn., ante, at p. 308), the rule does not
"impute" the element of malice aforethought. Rather, it omits that element
altogether. (See People v. Patterson, supra, 49 Cal.3d at p. 626 (lead opn. of
Kennard, J.) [speaking of the second degree felony-murder rule as a "substitute"
for malice aforethought]; see also People v. Dillon, supra, 34 Cal.3d at pp. 472-
476 (plur. opn. of Mosk, J.) [expressing the same view as to the first degree felony-
murder rule]; accord, id. at p. 490 (conc. opn. of Kaus, J.).)

The purpose of the second degree felony-murder rule is simply "to deter [persons]
engaged in felonies from killing negligently or accidentally...." (People v. Satchell
(1971) 6 Cal.3d 28, 34 [98 Cal. Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]; accord,
People v. Smith (1984) 35 Cal.3d 798, 807 [201 Cal. Rptr. 311, 678 P.2d 886].)[2]
Contrary to the majority's implication at points (maj. opn., ante, at pp. 310, 314),
the objective is not to deter such persons from committing the underlying felonies
themselves (People v. Smith, supra, 35 Cal.3d at p. 807).

Pursuant to the so-called "merger" doctrine, the second degree felony-murder rule
is not applicable when, on the evidence adduced at trial, the underlying felony was
an "integral part" of, and "included in fact" within, the resulting homicide. (People
v. Ireland (1969) 70 Cal.2d 522, 539 [75 Cal. Rptr. 188, 450 P.2d 580, 40
A.L.R.3d 1323], italics in original.)[3]

A felony may be so characterized when "there was a single course of conduct with
a single purpose," viz., to commit "the very assault which resulted in death...."
(People v. Burton (1971) 6 Cal.3d 375, 387 [99 Cal. Rptr. 1, 491 P.2d 793]
[involving the first degree felony-murder rule]; 321*321 accord, People v. Smith,
supra, 35 Cal.3d at pp. 805-806 [involving the second degree felony-murder rule].)
It has been held that assault is simply a willful act "likely to result in ... physical
force" against another. (People v. Colantuono (1994) 7 Cal.4th 206, 218 [26 Cal.
Rptr.2d 908, 865 P.2d 704].)

A felony, however, cannot be so characterized when "there [was] an independent

felonious purpose," such as to steal. (People v. Burton, supra, 6 Cal.3d at p. 387,
italics omitted [involving the first degree felony-murder rule]; accord, People v.
Smith, supra, 35 Cal.3d at pp. 805-806 [involving the second degree felony-murder
rule]; see People v. Taylor (1970) 11 Cal. App.3d 57, 63 [89 Cal. Rptr. 697] (per
Kaus, P.J.) [involving the second degree felony-murder rule: speaking of
"`collateral and independent felonious design'"]; People v. Mattison (1971) 4
Cal.3d 177, 185-186 [93 Cal. Rptr. 185, 481 P.2d 193] [involving the second
degree felony-murder rule: quoting Taylor].)

At bottom, then, the "merger" doctrine is predicated on, and limited by, the
following rationale. When a felony is undertaken with the purpose to engage in an
assault, in the sense of a willful act "likely to result in ... physical force" against
another (People v. Colantuono, supra, 7 Cal.4th at p. 218), the second degree
felony-murder rule cannot be invoked because its objective — to deter the
perpetrator from killing negligently or accidentally — is not likely to be attained.
(See, e.g., People v. Smith, supra, 35 Cal.3d at p. 807.) It "can hardly be much of a
deterrent to a defendant who has decided" to so act. (People v. Taylor, supra, 11
Cal. App.3d at p. 63.) By contrast, when a felony is undertaken with a different
purpose, the rule is allowed to operate because its objective can be reached. (Cf.
People v. Burton, supra, 6 Cal.3d at pp. 387-388 [to such effect under the first
degree felony-murder rule].)

II

At trial, the superior court instructed the jury on the crime of murder. As pertinent
here, it stated:

"Every person who unlawfully kills a human being ... during the commission or
attempted commission of a felony inherently dangerous to human life is guilty of
the crime of murder....

"In order to prove such crime, each of the following elements must be proved: 1. A
human being was killed, 2. The killing was unlawful, and 3. The killing ... occurred
during the commission or attempted commission of a felony inherently dangerous
to human life. Shooting at an inhabited 322*322 dwelling is a felony inherently
dangerous to human life." (Paragraphing omitted.)

"The unlawful killing of a human being, whether intentional, unintentional or

accidental, which occurs during the commission or attempted commission of the
crime of shooting at an inhabited dwelling is murder of the second degree...."
After six days of deliberations — almost as much time as was devoted to evidence,
arguments, and instructions — the jury returned a verdict finding defendant guilty
of murder in the second degree.[4]

III

By instructing the jury on second degree felony murder based on discharge of a

firearm at an inhabited dwelling house, the superior court erred.

The applicability of the second degree felony-murder rule, under the governing
law, depends on an affirmative answer to this threshold question: is discharge of a
firearm at an inhabited dwelling house, considered in the abstract, a felony
inherently dangerous to human life? The answer, however, is negative. By its very
terms, Penal Code section 246 declares that, "[a]s used in this section, `inhabited'
means currently being used for dwelling purposes, whether occupied or not."
(Italics added.) Further, as noted above, "inherently dangerous to human life" has
been defined to mean carrying "`a high probability' that death will result." (People
v. Patterson, supra, 49 Cal.3d at p. 627 (lead opn. of Kennard, J.); accord, id. at p.
640 (conc. & dis. opn. of Mosk, J.); id. at p. 641 (conc. & dis. opn. of Panelli, J.).)
Logic dictates that discharge of a firearm at an inhabited dwelling house cannot
carry "`a high probability' that death will result" when Penal Code section 246
expressly does not require the presence of any occupant. Experience provides
confirmation: to judge from reported appellate decisions, the prohibited conduct
has resulted in death only in rare instances. Although such conduct has been called
"extremely dangerous" (In re Lynch (1972) 8 Cal.3d 410, 431 [105 Cal. Rptr. 217,
503 P.2d 921]), it cannot be said to carry "`a 323*323 high probability' that death
will result." Surely, if the dwelling is not occupied at the time of the shooting, the
"probability" of death is not "high" — it is zero.

Moreover, even if discharge of a firearm at an inhabited dwelling house,

considered in the abstract, were in fact a felony inherently dangerous to human life,
the applicability of the second degree felony-murder rule would depend on a
negative answer to this further question under the "merger" doctrine: On the
evidence adduced at trial, was defendant's discharge of a firearm at the inhabited
dwelling house in question an "integral part" of, and "included in fact" within, the
resulting homicide? The answer, however, is affirmative. Such was the case in
People v. Wesley (1970) 10 Cal. App.3d 902, 905-908 [89 Cal. Rptr. 377], a
decision we impliedly approved in People v. Smith, supra, 35 Cal.3d at page 805.
Such is the case here. The record reveals that defendant was engaged in "a single
course of conduct with a single purpose," viz., to commit "the very assault which
resulted in death...." (People v. Burton, supra, 6 Cal.3d at p. 387.) Whatever his
precise motivation, he unquestionably decided to, and actually did, undertake an
ultimately fatal assault, in the sense of a willful act "likely to result in ... physical
force" against another. (People v. Colantuono, supra, 7 Cal.4th at p. 218.) The
record also reveals that he certainly did not exhibit any "independent felonious
purpose." (People v. Burton, supra, 6 Cal.3d at p. 387, italics omitted; accord,
People v. Smith, supra, 35 Cal.3d at p. 805.)

It follows from the foregoing that the superior court erred by instructing on second
degree felony murder based on discharge of a firearm at an inhabited dwelling
house.

The majority are to the contrary. Their analysis, however, proves inadequate.

To the threshold question, "Is discharge of a firearm at an inhabited dwelling

house, considered in the abstract, a felony inherently dangerous to human life?,"
the majority answer, "Yes." They are wrong.

In large part, the majority rely on the "reasoning" and "language" (maj. opn., ante,
at p. 310) of People v. Satchell, supra, 6 Cal.3d 28. There, we stated in dictum that
a "ready example" (id. at p. 43, fn. 22) of a felony "in which danger to human life
is inherent" (id. at p. 43) was discharge of a firearm at an inhabited dwelling house.

The "language" of the Satchell dictum provides little support. At the time Satchell
was decided more than 20 years ago, Penal Code section 246 324*324 delineated a
felony that came closer to being inherently dangerous to human life than it does
today. The provision did not yet declare that "`inhabited' means currently being
used for dwelling purposes, whether occupied or not." (Pen. Code, § 246, as
amended by Stats. 1977, ch. 690, § 1, p. 2220, italics added.)[5] Furthermore, at the
time Satchell was decided, the definition of "inherently dangerous to human life"
was less demanding than it is now, being satisfied, in words later used in People v.
Burroughs, supra, 35 Cal.3d at page 833, by nothing more than a "substantial risk
that someone will be killed...." It had not yet become more stringent, requiring "`a
high probability' that death will result." (People v. Patterson, supra, 49 Cal.3d at p.
627 (lead opn. of Kennard, J.); accord, id. at p. 640 (conc. & dis. opn. of Mosk, J.);
id. at p. 641 (conc. & dis. opn. of Panelli, J.).)

The "reasoning" of the Satchell dictum provides even less support. It is predicated
on the view that the purpose of the second degree felony-murder rule is simply to
deter persons engaged in felonies from committing those offenses. (People v.
Satchell, supra, 6 Cal.3d at p. 43 [stating that "it is the deterrence of such acts by
felons which the rule is designed to accomplish"].) That view is simply erroneous.
(People v. Smith, supra, 35 Cal.3d at p. 807 [holding that the objective "is not to
deter the underlying felony"].) The purpose of the rule is, rather, to deter persons
engaged in felonies from killing negligently or accidentally. (Ibid.) That Satchell
avoids this error elsewhere in its discussion (see People v. Satchell, supra, 6 Cal.3d
at p. 34 [holding that the objective is "to deter those engaged in felonies from
killing negligently or accidentally"]) does not remove the taint from the words in
question.

In addition to relying on the "reasoning" and "language" of the Satchell dictum, the
majority seek to fabricate a ground of their own. They do not meet with success.

The majority first assert: "The discharge of a firearm at an inhabited dwelling

house — by definition, a dwelling `currently being used for dwelling purposes,
whether occupied or not' [citation] — is a felony whose commission inherently
involves a danger to human life. An inhabited dwelling house is one in which
persons reside [citation] and where occupants `are generally in or around the
premises.' [Citation, italics in original.] In firing a gun at such a structure, there
always will exist a significant likelihood that an occupant may be present.
Although it is true that a defendant may be guilty 325*325 of this felony even if, at
the time of the shooting, the residents of the inhabited dwelling happen to be
absent [citation], the offense nonetheless is one that, viewed in the abstract — as
shooting at a structure that currently is used for dwelling purposes — poses a great
risk or `high probability' of death...." (Maj. opn., ante, at p. 310.)

The statement that "there always will exist a significant likelihood that an occupant
may be present" (italics added) is supportable.

But the implication that "there will always exist a significant likelihood that an
occupant may be killed" is not. At any given time, all occupants may be absent
from the dwelling. School, work, shopping, leisure pursuits, and other activities
may demand attendance outside, often for the greater part of the day. Even if an
occupant is present, he may be in a part of the dwelling away from the shooting.
The resident is necessarily smaller than the residence. Usually, thousands of times
so. For example, an average adult man may stand in 1 square foot of floor space
and take up 6 cubic feet of a room; by contrast, even a modest house may cover as
many as 1,500 square feet and, with 8-foot ceilings, fill as much as 12,000 cubic
feet. But even if an occupant happens to be near the shooting, the dwelling itself
provides significant protection. To be sure, the exterior is commonly windowed. In
most houses, however, structural soundness requires, and building codes demand,
that load-bearing walls of wood or masonry backed by studs and sheetrock
predominantly compose the shell. Although such walls may be penetrated by
certain types of ammunition with sufficient velocity to injure a person within, they
stop or at least slow all the rest. When they do so, they constitute a fortification.

Moreover, even if "the offense ... pose[d] a great risk ... of death," it would not
matter. The prohibited conduct might be deemed "inherently dangerous to human
life" under the former, less demanding definition, which was satisfied by nothing
more than a "substantial risk that someone will be killed...." (People v. Burroughs,
supra, 35 Cal.3d at p. 833.) But it would not qualify under the present, more
stringent definition, which requires "`a high probability' that death will result."
(People v. Patterson, supra, 49 Cal.3d at p. 627 (lead opn. of Kennard, J.); accord,
id. at p. 640 (conc. & dis. opn. of Mosk, J.); id. at p. 641 (conc. & dis. opn. of
Panelli, J.).) The implication that a "great risk ... of death" is a "`high probability'
of death" is dead wrong. (See id. at pp. 628-629 (conc. & dis. opn. of Lucas, C.J.).)

The majority then assert: "[A]pplication of the second degree felony-murder rule to
a homicide resulting from a violation of [Penal Code] section 326*326 246 directly
would serve the fundamental rationale of the felony-murder rule — the deterrence
of negligent or accidental killings in the course of the commission of dangerous
felonies." (Maj. opn., ante, at p. 310.) Are we then to conclude that the rule would
lead a person who is minded to discharge a firearm at an inhabited dwelling house
— "maliciously and willfully," as Penal Code section 246 requires — to blaze
away with due caution and circumspection? To ask the question is to provide its
answer. As stated above, the rule "can hardly be much of a deterrent to a defendant
who has decided" to undertake an assault (People v. Taylor, supra, 11 Cal. App.3d
at p. 63), in the sense of a willful act "likely to result in ... physical force" against
another (People v. Colantuono, supra, 7 Cal.4th at p. 218). That Penal Code
section 246 does not bear the label of "assault" is not dispositive. It embraces its
substance. Because it does, it appears in the Penal Code in the chapter entitled
"Assault and Battery." (Pen. Code, pt. 1, tit. 8, ch. 9.)

Next, to the question under the "merger" doctrine, "On the evidence adduced at
trial, was defendant's discharge of a firearm at the inhabited dwelling house in
question an `integral part' of, and `included in fact' within, the resulting
homicide?," the majority answer, "No." Again, they are wrong.

In part, the majority would avoid the "merger" doctrine by limiting it to

"circumstances where the only underlying ... felony committed by the defendant
was assault." (Maj. opn., ante, at p. 311, italics in original.) Even if this limitation
is sound — and apparently it is not (see People v. Sears (1970) 2 Cal.3d 180, 185-
189 [84 Cal. Rptr. 711, 465 P.2d 847]; People v. Wilson, supra, 1 Cal.3d at pp.
439-442) — it would not yield the result desired. That is because the only
underlying felony committed by defendant here was in fact assault, in the sense of
a willful act "likely to result in ... physical force" against another. (People v.
Colantuono, supra, 7 Cal.4th at p. 218.)

Additionally, the majority would avoid the "merger" doctrine by applying it

purportedly in accordance with People v. Mattison, supra, 4 Cal.3d 177, and
People v. Taylor, supra, 11 Cal. App.3d 57. They recognize that Mattison and
Taylor each held the doctrine unavailable because the evidence adduced at trial
therein revealed an "independent felonious purpose." (People v. Burton, supra, 6
Cal.3d at p. 387, italics omitted; accord, People v. Smith, supra, 35 Cal.3d at p.
805; see People v. Taylor, supra, 11 Cal. App.3d at p. 63 [speaking of "`collateral
and independent felonious design'"]; People v. Mattison, supra, 4 Cal.3d at p. 185
[quoting Taylor].) But they seem not to recognize that, as explained, the evidence
adduced at trial in this case reveals no such "independent felonious purpose," but
only an intent to commit an assault, in the sense indicated above. On second
glance, perhaps they do 327*327 recognize the fact. Why else do they shrink back
from fully embracing Mattison and Taylor?

Further, the majority attempt to avoid the "merger" doctrine by invoking Aguirre v.
State (Tex. Crim. App. 1987) 732 S.W.2d 320 (in bank). Aguirre is
distinguishable. In that case, the felony underlying the resulting homicide was
"criminal mischief," a "property offense," which comprised an "attemp[t] to blow
open a door with a shotgun" (id. at p. 325); it was undertaken with the
"independent felonious purpose" — in our phrase — to effect an unlawful entrance
into a residence. In this case, by contrast, the felony underlying the resulting
homicide was discharge of a firearm at an inhabited dwelling house, a crime
against the person (Pen. Code, pt. 1, tit. 8); it was undertaken simply to effect the
ultimately fatal assault, in the sense indicated above.

Unable to avoid the "merger" doctrine, the majority come close to rendering it
void. They reason that the doctrine is not available in this case because "[m]ost
homicides do not result" from discharge of a firearm at an inhabited dwelling
house. (Maj. opn., ante, at p. 315.) It follows that the doctrine would not be
available in any case because most homicides do not result from any one felony.
Such an outcome is untenable.[6]

IV
The superior court's error in instructing the jury on second degree felony murder
based on discharge of a firearm at an inhabited dwelling house requires reversal of
defendant's conviction of murder in the second degree.

When a legally erroneous theory of conviction is presented to the jury, reversal is

required unless, on the record made at trial, the reviewing court can determine that
the conviction actually, if not solely, rests on a legally 328*328 proper theory.
(People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 [17 Cal. Rptr.2d 365, 365
P.2d 45]; see People v. Smith, supra, 35 Cal.3d at p. 808 [concluding that reversal
of a second degree murder conviction is required unless the People can "show that
no juror relied on the erroneous instruction" on second degree felony murder "as
the sole basis for finding [the] defendant guilty"].)

In this case, a legally erroneous theory of conviction of murder in the second

degree was indeed presented to the jury. That theory was second degree felony
murder. It was legally erroneous because, as explained above, the rule was not
applicable here under the governing law.

Further, on the record made at trial, we cannot determine whether defendant's

conviction of murder in the second degree actually, if not solely, rests on a legally
proper theory. Rather, the only determination that we can and indeed must make in
this regard is that the conviction rests on the legally erroneous theory of second
degree felony murder. The fact is established by the jury's guilty verdicts on
second degree murder and discharge of a firearm at an inhabited dwelling house —
which, under the evidence adduced and the instructions given, necessarily add up
to second degree felony murder. (Cf. People v. Berryman (1993) 6 Cal.4th 1048,
1086 [25 Cal. Rptr.2d 867, 864 P.2d 40] [arriving at a similar conclusion on a
similar record].)[7]

Defendant's conviction of murder in the second degree must therefore be

reversed.[8]

For the reasons stated above, I would: (1) affirm the Court of Appeal's judgment
affirming defendant's conviction of discharging a firearm at an 329*329 inhabited
dwelling house; (2) reverse its judgment affirming defendant's conviction of
murder in the second degree; and (3) affirm its judgment setting aside the firearm-
use sentence enhancement, which is dependent on the latter conviction.

KENNARD, J., Concurring and Dissenting.

Defendant fired a handgun repeatedly into the apartment of Michael Echaves,
killing 13-year-old Diane Rosalez. A jury convicted defendant of second degree
murder after the trial court gave an instruction defining second degree felony
murder and instructed the jury that discharging a firearm at an inhabited dwelling
in violation of Penal Code section 246 was an "inherently dangerous felony" that
could serve as the predicate felony for second degree felony murder.

The majority concludes, and I agree, that the offense of discharging a firearm at an
inhabited dwelling is indeed an inherently dangerous felony for purposes of the
second degree felony-murder rule, because under the standard articulated in my
lead opinion in People v. Patterson (1989) 49 Cal.3d 615, 627 [262 Cal. Rptr. 195,
778 P.2d 549], it is "an offense carrying `a high probability' that death will result."
This court has never held that for a felony to pose a high probability of death,
death must result from the commission of the felony in a majority, or even in a
great percentage, of instances. Nor is it necessary in this case to define the outer
limits of that term. The drive-by shootings that now plague our cities frequently
result in the death of someone inside a residence. Even with no one present in the
targeted house, the act of shooting at an inhabited house or apartment creates a
substantial or serious risk of death to occupants of neighboring houses or to
passersby. For these reasons, I agree with the majority that this offense is an
inherently dangerous felony for purposes of the second degree felony-murder rule.

I disagree with the majority, however, when it concludes that the felony of
discharging a weapon at an inhabited dwelling is one that does not "merge" with
the resulting homicide within the meaning of our decision in People v. Ireland
(1969) 70 Cal.2d 522 [75 Cal. Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]. Under
Ireland, which has been the law of this state for more than 25 years, a conviction
for second degree felony murder cannot rest on a felony assault "that is an integral
part of the homicide" and that, based on the prosecution's evidence, is "included in
fact" within the resulting homicide. (Id. at p. 539, original italics.) Later decisions
have added that a defendant's commission of a felony will support a felony murder
conviction only if the defendant entertained some "independent felonious purpose"
beyond mere assault. (People v. Burton (1971) 6 Cal.3d 375, 387 [99 Cal. Rptr. 1,
491 P.2d 793]; People v. Taylor (1970) 11 Cal. App.3d 57, 63 [89 Cal. Rptr. 697],
cited 330*330 with approval in People v. Mattison (1971) 4 Cal.3d 177, 185 [93
Cal. Rptr. 185, 481 P.2d 193].) Here, the prosecution's evidence did not show that
defendant had any independent felonious purpose for discharging the firearm at the
Echaves residence. That conduct satisfies this court's definition of an assault.
(People v. Colantuono (1994) 7 Cal.4th 206, 218 [26 Cal. Rptr.2d 908, 865 P.2d
704].) As Justice Mosk observes, it was "a willful act `likely to result in ... physical
force' against another." (Conc. & dis. opn., ante, at p. 326].) As such, in this case
the underlying felony of discharging a firearm at an inhabited dwelling house
"merges" with the resulting homicide and cannot support the second degree murder
conviction.

Although from the facts of this case a jury could find that the defendant harbored
malice and accordingly could base a second degree murder conviction on an
implied malice theory (rather than a felony-murder theory), I agree with Justice
Mosk that defendant's second degree felony-murder conviction must be reversed
because the record does not reveal whether the jury ever made the findings
necessary to support a second degree murder conviction premised on implied
malice. I would remand this case to give the prosecution the opportunity to retry
the murder charge on a theory of implied malice.

Appellant's petition for a rehearing was denied February 23, 1995. Mosk, J., and
Kennard, J. were of the opinion that the petition should be granted.

[1] All further references are to the Penal Code unless otherwise indicated.

[2] Section 246 provides in full: "Any person who shall maliciously and willfully
discharge a firearm at an inhabited dwelling house, occupied building, occupied
motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of
the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle
Code, is guilty of a felony, and upon conviction shall be punished by imprisonment
in the state prison for three, five, or seven years, or by imprisonment in the county
jail for a term of not less than six months and not exceeding one year. [¶] As used
in this section, `inhabited' means currently being used for dwelling purposes,
whether occupied or not."

[3] As amended in 1994, section 12022.5, subdivision (a), provides for an

additional term of imprisonment for three, four, or ten years. (Stats. 1994, First Ex.
Sess. 1993-1994, ch. 33, § 6.)

[1] People v. Landry (1989) 212 Cal. App.3d 1428, 1434-1437 [261 Cal. Rptr.
254], is to the contrary. It founders on the authority and reasoning of People v.
Burroughs, supra, 35 Cal.3d 824, and People v. Dillon, supra, 34 Cal.3d 441.

[2] This, of course, is the purpose of the felony-murder rule generally. (E.g.,
People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d
130].)
[3] The "merger" doctrine operates as to the felony-murder rule generally. (See,
e.g., People v. Wilson (1969) 1 Cal.3d 431, 439-442 [82 Cal. Rptr. 494, 462 P.2d
22] [applying to the first degree felony-murder rule the reasoning of People v.
Ireland, supra, 70 Cal.2d at p. 539, which deals specifically with the second degree
felony-murder rule].)

[4] It was apparently the second degree felony-murder rule and not the facts of the
case that caused the jury to have trouble reaching its verdict. Ironically, it was also
the rule and not the facts that ultimately produced the determination of guilt. One
juror subsequently stated: "It makes me sick and ashamed to have been part of a
system that would convict someone like [defendant] of murder. Not everyone
deserves a second chance but [he] does. The law is what dictated the verdict, not
the jury." Another juror added: "If it wasn't for the scenario which said that the
murder was a result of an intentional act of shooting into a dwelling which is a
felony, then my vote would be for manslaughter. I do think that what [defendant]
did was very serious but I would not rank him as a cold blooded killer."

[5] It should be noted that in People v. Chavira (1970) 3 Cal. App.3d 988, 992 [83
Cal. Rptr. 851] — which Satchell does not cite — the Court of Appeal had
construed "inhabited" in Penal Code section 246 to mean that "a person resides
therein even though ... temporarily unoccupied."

[6] The instruction on second degree felony-murder based on discharge of a

firearm at an inhabited dwelling house also amounts to error under the United
States Constitution.

An instruction in a state criminal trial omitting an element of a crime is violative of

the due process clause of the Fourteenth Amendment. (Rael v. Sullivan (10th
Cir.1990) 918 F.2d 874, 875; Cole v. Young (7th Cir.1987) 817 F.2d 412, 423-426;
cf. U.S. v. Gaudin (9th Cir.1994) 28 F.3d 943, 944-952 (in bank) [holding to the
effect that an instruction in a federal criminal trial omitting an element of a crime is
violative of the due process clause of the Fifth Amendment].)

The instruction here given omitted an element of murder in the second degree, viz.,
malice aforethought. (See, e.g., People v. Henderson (1977) 19 Cal.3d 86, 96 [137
Cal. Rptr. 1, 560 P.2d 1180], citing cases.) It might be argued that, whereas the
statutory crime of second degree murder includes malice aforethought as an
element (see Pen. Code, §§ 187, subd. (a), 188, 189), the "common law crime"
does not. In California, however, "there are no common law crimes." (In re Brown
(1973) 9 Cal.3d 612, 624 [108 Cal. Rptr. 465, 510 P.2d 1017]; see Pen. Code, § 6.)
[7] See also footnote 4, ante.

[8] Insofar as the instruction on second degree felony murder based on discharge of
a firearm at an inhabited dwelling house amounts to error under the United States
Constitution, it requires reversal of defendant's conviction of murder in the second
degree solely on that basis.

For error under the United States Constitution, the general rule is harmless-error
analysis pursuant to Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705,
87 S.Ct. 824, 24 A.L.R.3d 1065], with its "reasonable doubt" standard; the
exception is automatic reversal. (E.g., Sullivan v. Louisiana (1993) ___ U.S. ___,
___ [124 L.Ed.2d 182, 189, 113 S.Ct. 2078, 2081].)

The error here is automatically reversible. When, as in this case (see fn. 6, ante), an
instruction omits an element of a crime, it "cannot be harmless." (U.S. v. Gaudin,
supra, 28 F.3d at p. 951.)

Even if it were not automatically reversible, the error here cannot be held harmless
beyond a reasonable doubt. Such a conclusion could be reached if, and only if, the
jury's guilty verdict on murder in the second degree "was surely unattributable to
the error." (Sullivan v. Louisiana, supra, ___ U.S. at p. ___ [124 L.Ed.2d at p. 189,
113 S.Ct. at p. 2081].) As explained in the text, that condition is not, and cannot be,
satisfied here.

77 Cal.Rptr.2d 870 (1998)

960 P.2d 1094
19 Cal.4th 142

The PEOPLE, Plaintiff and Respondent,

v.
Scott BREVERMAN, Defendant and Appellant.
No. S058721,

Supreme Court of California.

 August 31, 1998.

872*872 Marcia A. Morrissey, Santa Monica, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant

Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C.
Hamanaka, Jaime L. Fuster, Sharon Wooden Richard, William T. Harter and
Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, Justice.

Two young men who were walking by defendant's house got into a fight with a
larger group of youths congregated in the driveway. The two sustained cuts and
bruises before the fracas ended and they were allowed to leave. The next night, at
least one of the pair returned with a group of friends to exact some sort of
retaliation. Members of the group taunted defendant, then used a baseball bat and
other implements to batter his automobile, which was parked in the driveway near
his front door. Defendant fired several shots through a window pane in the front
door, then came outside and fired further shots toward the fleeing vandals. One
bullet from this second volley fatally wounded a member of the group.

Defendant was charged with murder. The jury also received instructions on
justifiable homicide ("reasonable" self-defense) and on the lesser "necessarily
included" offenses of voluntary and involuntary manslaughter. The voluntary
manslaughter instructions were premised entirely on the theory of "unreasonable"
self-defense. (See People v. Flannel (1979) 25 Cal.3d 668, 674-680, 160 Cal.Rptr.
84, 603 P.2d 1 (Flannel).)

Defendant appealed his murder conviction, urging, inter alia, that the trial court
erred by failing to instruct, sua sponte, on a "heat of passion" theory of voluntary
manslaughter (see Pen.Code, § 192, subd. (a) (section 192(a))[1] which was also
supported by the evidence. The Court of Appeal agreed. It further found the error
prejudicial under People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518
P.2d 913 (Sedeno), because the jury had not necessarily resolved, in another
context, the issue posed by the omitted instruction. The Court of Appeal therefore
reversed the conviction.

We granted review to consider two issues: First, does the sua sponte duty to
instruct on lesser necessarily included offenses (Sedeno, supra, 10 Cal.3d 703,
715-716, 112 Cal.Rptr. 1, 518 P.2d 913) extend to every theory of such an offense
that finds rational support in the evidence? Second, what standard of appellate
reversal should apply to an erroneous failure to instruct, or to instruct completely,
on a lesser included offense?

We now reach the following conclusions: California law requires a trial court, sua
sponte, to instruct fully on all lesser necessarily included offenses supported by the
evidence. The Court of Appeal correctly ruled that in a murder prosecution, this
includes the obligation to instruct on every supportable theory of the lesser
included offense of voluntary manslaughter, not merely the theory or theories
which have the strongest evidentiary support, or on which the defendant has openly
relied. Here, there was substantial evidence to support a heat of passion theory of
voluntary manslaughter, and the instant trial court should therefore have instructed
on this theory.

However, we further conclude, the Sedeno standard of near-automatic reversal for

this form of error should be abrogated. The sua sponte duty to instruct fully on all
lesser included offenses suggested by the evidence arises from California law
alone. Moreover, a failure to fulfill this duty is not a structural defect in the
proceedings, but mere misdirection of the jury, a form of trial error committed in
the presentation of the case. Hence, 873*873 by virtue of the California
Constitution, reversal is not warranted unless an examination of "the entire cause,
including the evidence," discloses that the error produced a "miscarriage of
justice." (Cal. Const, art. VI, § 13.) This test is not met unless it appears
"reasonably probable" the defendant would have achieved a more favorable result
had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d
243 (Watson).)

Because the Court of Appeal applied the Sedeno standard we now overrule, and
therefore reversed defendant's murder conviction without determining from the
entire record whether there was a reasonable probability the error affected the
outcome, the Court of Appeal's judgment must be reversed. Under the
circumstances, we will remand the cause to the Court of Appeal for an evaluation
of prejudice under Watson. If the Court of Appeal concludes the error was
harmless by that standard, it should proceed to consider the numerous other claims
raised by defendant on appeal.

FACTS AND PROCEDURAL BACKGROUND

Defendant was charged by information with the murder of Andreas Suryaatmadja.

(§ 187, subd. (a).)[2] The information also alleged a firearm use enhancement. (§
12022, subd. (a).)
Insofar as pertinent here, the prosecution evidence was as follows:

On the evening of December 17, 1993, Yoon Ju and Hyun (Bill) Kim were
walking in Chatsworth on their way to play pool. As they passed defendant's
residence at 21747 Hiawatha Street, words were exchanged with a larger group of
young people who were drinking beer in the garage and driveway area. A fight
ensued. Ju and Kim were kicked and beaten, and they received minor injuries. Kim
testified defendant was present at the fight but stayed in the background.

Between 8 and 10 p.m. the next evening, December 18, Kim and six to ten friends,
including victim Suryaatmadja, returned to defendant's neighborhood. The group
was riding in two cars, a gray Nissan and a black Honda. The aim was to have an
even fight with those who had beaten Kim and Ju the night before. The group
parked around the corner from defendant's residence. Kim had a fishing knife, and
the group was armed with other weapons, including a baseball bat and parts of a
"Club" automobile security device.

Kim first approached the residence alone. When it appeared nobody was home,
Kim slashed a tire of a BMW automobile parked in defendant's driveway and
walked back to his waiting friends. As Kim did so, defendant came out of the
house and checked the BMW. Some of Kim's friends yelled to defendant to bring
out his friends for an even fight. Defendant saw the group and went back inside.

The group then drove by a back route, parked up the street on the other side of
defendant's house, and began walking toward defendant's residence. Suryaatmadja
and another person may have hung back at an intersection. Once the main group
arrived in front of defendant's house, four or five individuals came up to the BMW
and began hitting the car with the bat, the Club pieces, and a broken broomstick.
The group may have been shouting epithets. Suryaatmadja was not in the group
that hit the car.

The BMW's alarm went off, and moments later, shots came from the front door of
defendant's residence. The shots continued as the group began to run away. During
the second of two separate volleys, Kim looked back and saw defendant firing
from his driveway near the public sidewalk. When the gunfire stopped,
Suryaatmadja was lying in the street, unconscious and bleeding from the head. He
died at a hospital several hours later. The cause of death was a bullet that entered
the right rear of the victim's head and exited above his right eye.
874*874 Defendant told a responding police officer that he fired at "armed" Asians
who were "beating on his car, vandalizing his car," and that he feared the people
would come into his house. The officer saw two metal rods or pipes in the street.

In a tape-recorded police interview, defendant stated as follows:[3] During the fight

of December 17, he was inside the house, sick and asleep. On the evening of
December 18, as he entered his car to go to the market, a group of unknown men
came toward him, yelling. He reactivated his car alarm, ran back inside, told his
mother to call 911, but then wondered if he was being too "paranoid." Nothing
happened for five minutes. Defendant and a friend, Kyle Beck, then peered over
the back fence. They did not observe anybody in the area where the group had
previously been spotted, but when defendant turned his gaze, he saw the group
approaching again from the opposite direction, still yelling. Defendant ran back
inside to tell his mother "they're coming." He then heard the alarm go off as they
began "bashing" his car. Defendant saw at least 12 people, and they were
"mobbing[,] basically." He broke the glass in the front door and fired three or four
rounds "kind of ... like downward." The intruders stopped hitting his car, but
defendant came outside and shot six or seven more times as the group fled. He was
not "aiming" and did not intend to hit anybody.[4] He was "trying to get them to
stop" because they had "done a lot of damage to [his] car," and he wanted to "hold
[them] until the cops came" so they would be "arrested or whatever." When his
semiautomatic weapon, which held 13 rounds, ran out of ammunition, he ran back
inside. His mother was already making an emergency call. He locked the door and
waited for the police.

Defendant also insisted that when he fired from inside, it looked like the group was
"coming at me" and "rushing the door." Defendant declared that he "thought we
were going to get killed."

The police recovered four shell casings from inside the house and another ten from
the driveway. There was bullet damage to the BMW, and to two vehicles parked in
the street, at heights and angles that suggested level firing. One bullet passed
through the third story wall of a townhome over a block away. The pool of blood
where the victim fell was on Hiawatha Street, 182 feet from where the shell
casings in defendant's driveway were found.

The defense case included testimony by Chad Reuser, Kyle Beck, and defendant's
mother, Janet Breverman (Janet). Reuser corroborated defendant's claim that he
was not present at the fight of December 17. Beck and Janet described events
inside defendant's house on the night of December 18.
Beck testified as follows: He and defendant were watching television in
defendant's bedroom when defendant left the room, stating he was going to the
store to get lozenges for his sore throat. Defendant returned almost immediately,
apparently already holding his gun. Defendant said someone should call 911
because "15 to 20 guys," armed with "bats and chains and stuff," had "rushed him"
as he tried to get into his car. Beck and defendant looked out the front window,
saw a white Honda pass slowly, and feared a drive-by shooting. After a few
minutes, the two went outside and looked over a gate; Beck saw "four or five
heads." Defendant asked Beck to guard the rear of the house while defendant ran
back to the front. Beck then heard smashing sounds that caused him to think the
intruders had forced their way in through a window. Within seconds thereafter,
Beck heard gunfire.

Janet testified as follows: On the evening of December 18, she was watching
television in her room. The chirping of defendant's car 875*875 alarm indicated he
had left the house, then quickly returned. Defendant reported "there were a whole
group of Oriental guys" walking toward the house. Defendant, and perhaps Beck,
went to check the rear of the house, while Janet went to the bathroom, which was
adjacent to the driveway where defendant's car was parked. Just as she exited the
bathroom, the car alarm went off, and she heard breaking glass and "blows" to the
vehicle. The frequency of blows suggested at least three people were pounding the
car. She "dropped to the ground," expecting "things to be coming through the
window." She "absolutely" was in "fear." About that time, defendant yelled "call
911," and she crawled into the family room to the telephone. By the time she made
the call, shots had been fired.

At the close of the prosecution case, the trial court ruled there was no evidence of
premeditation or deliberation, and the verdict would thus be limited to second
degree murder. The jury was instructed on both express and implied malice
theories of that offense. The court also provided instructions, as agreed by the
parties, on reasonable defense of self or others as justifiable homicide, on the
permissible use of force to resist a violent domestic intruder, on voluntary
manslaughter as an intentional killing arising from an honest but unreasonable
belief in the need for self-defense, and on involuntary manslaughter as an
unintentional killing by the reckless or grossly negligent commission of a highly
dangerous act. Defendant was convicted of murder, and the firearm-use
enhancement was found true. The court sentenced defendant to a term of 18 years
to life.
On appeal, defendant argued, inter alia, that the court erred by failing, on its own
motion, to instruct on a second theory of voluntary manslaughter, an unlawful
intentional killing "upon a sudden quarrel or heat of passion." (§ 192(a).) In an
opinion by Justice Armstrong, concurred in by Justice Grignon, the Court of
Appeal, Second District, Division Five agreed. The majority reasoned, in essence,
that the same evidence of threat and fear of harm which supported a claim of
unreasonable self-defense also permitted a manslaughter verdict based on heat of
passion. The majority concluded that the instructional error required reversal under
Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913, because the jury had
not necessarily resolved the heat of passion issue against defendant in another
context.

In a separate concurrence, Presiding Justice Turner urged us to reconsider the

scope of the rule requiring sua sponte instructions on lesser included offenses, as
well as the circumstances under which this category of error should require
reversal. We granted the People's petition for review.

DISCUSSION

Duty to instruct on all supportable theories of lesser included offense.

As below, defendant urges the trial court's voluntary manslaughter instructions

were defective because they did not include the heat of passion theory despite
support for that theory in the evidence. The omission, defendant suggests, deprived
him of his "constitutional right to have the jury determine every material issue
presented by the evidence." (People v. Modesto (1963) 59 Cal.2d 722, 730, 31
Cal.Rptr. 225, 382 P.2d 33 (Modesto); see also People v. Wickersham (1982) 32
Cal.3d 307, 335, 185 Cal.Rptr. 436, 650 P.2d 311 (Wickersham).)

The People, on the other hand, argue that the duty to instruct sua sponte on a lesser
included offense is satisfied when the court instructs on the theory of that offense
most consistent with the evidence and the line of defense pursued at trial. The
court, the People urge, need not further provide, in the absence of a defense
request, instructions on additional, and perhaps conflicting, theories of the lesser
offense. We find defendant's position more persuasive.

"Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
subd. (a).) A defendant who commits an intentional and unlawful killing but who
876*876 lacks malice is guilty of ... voluntary manslaughter. (§ 192.)" (People v.
Barton (1995) 12 Cal.4th 186, 199, 47 Cal.Rptr.2d 569, 906 P.2d 531 (Barton).)
Generally, the intent to unlawfully kill constitutes malice. (§ 188; People v. Saille
(1991) 54 Cal.3d 1103, 1113, 2 Cal.Rptr.2d 364, 820 P.2d 588; see In re Christian
S. (1994) 7 Cal.4th 768, 778-780, 30 Cal.Rptr.2d 33, 872 P.2d 574 (Christian S.).)
"But a defendant who intentionally and unlawfully kills lacks malice ... in limited,
explicitly defined circumstances: either when the defendant acts in a sudden
quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in
`unreasonable self-defense'—the unreasonable but good faith belief in having to
act in self-defense (see []wChristian S.[, supra, ]7 Cal.4th 768, 30 Cal.Rptr.2d 33,
872 P.2d 574; []Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1)."
(Barton, supra, 12 Cal.4th at p. 199, 47 Cal.Rptr.2d 569, 906 P.2d 531.) Because
heat of passion and unreasonable self-defense reduce an intentional, unlawful
killing from murder to voluntary manslaughter by negating the element of malice
that otherwise inheres in such a homicide (ibid.), voluntary manslaughter of these
two forms is considered a lesser necessarily included offense of intentional murder
(id. at pp. 201-202, 47 Cal.Rptr.2d 569, 906 P.2d 531).[5]

"`It is settled that in criminal cases, even in the absence of a request, the trial court
must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which
are necessary for the jury's understanding of the case.' (People v. St. Martin (1970)
1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.) That obligation has been held
to include giving instructions on lesser included offenses when the evidence raises
a question as to whether all of the elements of the charged offense were present
(see, e.g., People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370),
but not when there is no evidence that the offense was less than that charged.
(People v. Noah (1971) 5 Cal.3d 469, 479, 96 Cal.Rptr. 441, 487 P.2d 1009;
People v. Osuna (1969) 70 Cal.2d 759, 767, 76 Cal.Rptr. 462, 452 P.2d 678.) The
obligation to instruct on lesser included offenses exists even when as a matter of
trial tactics a defendant not only fails to request the instruction but expressly
objects to its being given. (People v. Mosher (1969) 1 Cal.3d 379, 393, 82
Cal.Rptr. 379, 461 P.2d 659; People v. Graham (1969) 71 Cal.2d 303, 319, 78
Cal.Rptr. 217, 455 P.2d 153.) Just as the People have no legitimate interest in
obtaining a conviction of a greater offense than that established by the evidence, a
defendant has no right to an acquittal when that evidence is 877*877 sufficient to
establish a lesser included offense. ([]St. Martin, supra, 1 Cal.3d 524, 533, 83
Cal.Rptr. 166, 463 P.2d 390.)" (Sedeno, supra, 10 Cal.3d 703, 715-716, 112 Cal.
Rptr. 1, 518 P.2d 913, fn. omitted; see Barton, supra, 12 Cal.4th at pp. 194-198, 47
Cal.Rptr.2d 569, 906 P.2d 531.)
Cases have suggested that the requirement of sua sponte instructions arises, among
other things, from the defendant's right under the California Constitution "to have
the jury determine every material issue presented by the evidence." (E.g., People v.
Geiger (1984) 35 Cal.3d 510, 519, 199 Cal. Rptr. 45, 674 P.2d 1303 (Geiger),
overruled on other grounds, Birks, supra, 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960
P.2d 1073; see also Wickersham, supra, 32 Cal.3d 307, 335, 185 Cal.Rptr. 436,
650 P.2d 311; Sedeno, supra, 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913;
Modesto, supra, 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.) However, we
have consistently stressed the broader interests served by the sua sponte
instructional rule. As we have said, insofar as the duty to instruct applies regardless
of the parties' requests or objections, it prevents the "strategy, ignorance, or
mistakes" of either party from presenting the jury with an "unwarranted all-or-
nothing choice," encourages "a verdict ... no harsher or more lenient than the
evidence merits" (Wickersham, supra, 32 Cal.3d at p. 324, 185 Cal. Rptr. 436, 650
P.2d 311, italics added), and thus protects the jury's "truth-ascertainment function"
(Barton, supra, 12 Cal.4th 186, 196, 47 Cal.Rptr.2d 569, 906 P.2d 531). "These
policies reflect concern [not only] for the rights of persons accused of crimes [but
also] for the overall administration of justice." (Wickersham, supra, 32 Cal.3d at p.
324, 185 Cal.Rptr. 436, 650 P.2d 311.)

We have noted the danger of all-or-nothing verdict choices as a basis for the
instructional rule. However, we have never intimated that the rule is satisfied once
the jury has some lesser offense option, so that the court may limit its sua sponte
instructions to those offenses or theories which seem strongest on the evidence, or
on which the parties have openly relied. On the contrary, as we have expressly
indicated, the rule seeks the most accurate possible judgment by "ensur[ing] that
the jury will consider the full range of possible verdicts" included in the charge,
regardless of the parties' wishes or tactics. (Wickersham, supra, 32 Cal.3d 307,
324, 185 Cal.Rptr. 436, 650 P.2d 311, italics added.) The inference is that every
lesser included offense, or theory thereof, which is supported by the evidence must
be presented to the jury.

The People effectively concede that the rule they suggest is not consistent with
existing law. They argue only that we should "reexamine" the sua sponte duty to
that extent and should impose the proposed limit as a matter of first impression.[6]

878*878 We decline to do so. The rule the People advocate would contravene the
policies our cases have consistently expressed in support of the existing
instructional requirement. The People present no persuasive reason for departing
from these well-established principles.
Indeed, in Barton, supra, 12 Cal.4th 186, 47 Cal.Rptr.2d 569, 906 P.2d 531, we
recently considered and rejected a defendant's contention that the sua sponte
instructional rule for lesser included offenses should be narrowed in a fashion
closely akin to that suggested by the People here. A brief background discussion is
necessary to explain the context in which the Barton issue arose.

In Sedeno, supra, 10 Cal.3d 703, 112 Cal. Rptr. 1, 518 P.2d 913, we noted that the
sua sponte duty to instruct on all material issues presented by the evidence extends
to defenses as well as to lesser included offenses (id. at p. 716, 112 Cal.Rptr. 1, 518
P.2d 913), but we drew a sharp distinction between the two situations. In the case
of defenses, we concluded, a sua sponte instructional duty arises "only if it appears
that the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the
defendant's theory of the case." (Ibid., italics added.) Thus, when the trial court
believes "there is substantial evidence that would support a defense inconsistent
with that advanced by a defendant, the court should ascertain from the defendant
whether he wishes instructions on the alternative theory." (Id., at p. 717, fn. 7, 112
Cal.Rptr. 1, 518 P.2d 913, italics added.) By contrast, "[w]hen the charged offense
is one that is divided into degrees or encompasses lesser offenses, and there is
evidence from which the jury could conclude that the lesser offense had been
committed, the court must instruct on the alternate theory even if it is inconsistent
with the defense elected by the defendant...." (Ibid., italics added.)

Wickersham later concluded that the unreasonable self-defense theory of voluntary

manslaughter "comes within Sedeno's category of `defenses' for purposes of the
obligation to instruct sua sponte." (Wickersham, supra, 32 Cal.3d 307, 329, 185
Cal.Rptr. 436, 650 P.2d 311.) Hence, Wickersham reasoned, sua sponte
instructions on that theory, even if supported by the evidence, were not necessary
unless consistent with the defendant's trial theory. (Ibid.) On the other hand,
Wickersham confirmed that where the evidence in a murder case would support a
heat of passion theory of voluntary manslaughter, "the trial court is obligated to
instruct on the theory." (Id. at p. 325, 185 Cal.Rptr. 436, 650 P.2d 311.)

The instructional distinction between defenses and lesser included offenses arose
again in Barton, supra, 12 Cal.4th 186, 47 Cal.Rptr.2d 569, 906 P.2d 531. There,
the defendant fatally shot the victim during a heated, parking lot argument. The
defendant had extensive military firearms training and was, as usual, legally
carrying a semiautomatic 879*879 pistol. The exact circumstances of the shooting
were in substantial dispute. The defendant claimed he saw a knife in the victim's
hand, brandished his gun to hold the victim for the police, but then fired reflexively
while stepping backward to avoid the victim's threatening movement. The
defendant requested the omission of instructions on voluntary manslaughter as a
lesser offense included in murder, because such instructions would contravene his
theory that he killed accidentally. The trial court denied the request and instructed
on both heat of passion and unreasonable self-defense theories of voluntary
manslaughter. In their jury arguments, the prosecutor claimed an intentional
murder, while defense counsel adhered to the premise of an accidental, and thus
excusable, killing.

On appeal from his manslaughter conviction, the defendant urged that we abrogate
Sedeno's differing instructional treatment of offenses and defenses, thus allowing
him, as in the case of defenses, to veto instructions on lesser included offenses
inconsistent with his trial strategy. We declined the invitation. We concluded that
Sedeno's reasoning in this respect was sound, and that the rule requiring sua sponte
instructions on lesser included offenses regardless of the parties' strategies should
be retained.

Barton explained that "[f]ailure to ... instruct [on defenses not asserted by the
defendant] will not deprive the jury of the opportunity to consider the full range of
criminal offenses established by the evidence. Nor is the prosecution denied the
opportunity to seek conviction on all offenses included within the crime charged.
Moreover, to require trial courts to ferret out all defenses that might possibly be
shown by the evidence, even when inconsistent with the defendant's theory at trial,
would not only place an undue burden on the trial courts but would also create a
potential of prejudice to the defendant. As we said in Sedeno, supra, 10 Cal.3d at
pages 716-717, 112 Cal.Rptr. 1, 518 P.2d 913: `"Appellate insistence upon sua
sponte instructions [concerning defenses] which are inconsistent with defense trial
theory or not clearly demanded by the evidence would hamper defense attorneys
and put trial judges under pressure to glean legal theories and winnow the evidence
for remotely tenable and sophistical instructions."' (Barton, supra, 12 Cal.4th 186,
197, 47 Cal. Rptr.2d 569, 906 P.2d 531.)

On the other, hand, Barton concluded, "[a] trial court's failure to inform the jury of
its option to find the defendant guilty of [a] lesser [included] offense [supported by
the evidence] would impair the jury's truth-ascertainment function" by forcing the
jury "to make an `all or nothing' choice between conviction of the crime charged or
complete acquittal, thereby denying the jury the opportunity to decide whether the
defendant is guilty of a lesser included offense established by the evidence."
(Barton, supra, 12 Cal.4th 186, 196, 47 Cal.Rptr.2d 569, 906 P.2d 531, italics
added, fn. omitted.)[7]
Barton then analyzed whether heat of passion and unreasonable self-defense,
insofar as they reduce a murder to voluntary manslaughter, are mere defenses
which the defendant may control under Sedeno. Barton answered that question in
the negative.

We acknowledged in Barton that because "it is [ordinarily] the defendant who

offers evidence" on these theories, and because they operate to reduce murder to
the lesser offense of manslaughter, they resemble traditional affirmative defenses.
Mindful of Wickersham's holding on the issue, we also noted in particular the close
conceptual similarities between unreasonable self-defense and the "actual" defense
of "true" self-defense. 880*880 (Barton, supra, 12 Cal.4th 186, 199-200, 47
Cal.Rptr.2d 569, 906 P.2d 531.) Nonetheless, we explained, voluntary
manslaughter is itself an offense, i.e., an unlawful lolling distinguished from
murder only because it is "without malice" (§ 192). (Barton, supra, 12 Cal.4th at p.
199, 47 Cal.Rptr.2d 569, 906 P.2d 531.) Heat of passion and unreasonable self-
defense, we observed, merely establish the "lack[] [of] malice" that distinguishes
the one offense from the other. (Ibid.)

Hence, we concluded, Wickersham had not been correct in characterizing

unreasonable self-defense as a mere defense for purposes of the sua sponte
instructional rule of Sedeno. "`[U]nreasonable self-defense,'" we stated, "is ... not a
true defense; rather, it is a shorthand description of one form of voluntary
manslaughter. And voluntary manslaughter, whether it arises from unreasonable
self-defense or from a killing during a sudden quarrel or heat of passion, is not a
defense but a crime; more precisely, it is a lesser offense included in the crime of
murder. Accordingly, when a defendant is charged with murder the trial court's
duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is
the same as its duty to instruct on any other lesser included offense: this duty arises
whenever the evidence is such that a jury could reasonably conclude that the
defendant killed the victim in the unreasonable but good faith belief in having to
act in self-defense." (Barton, supra, 12 Cal.4th.186, 200-201, 47 Cal.Rptr.2d 569,
906 P.2d 531, italics added.)

Thus, Barton concluded, the trial court did not err in that case by instructing on
both heat of passion and unreasonable self-defense as theories of voluntary
manslaughter, even though the defendant objected to such instructions and both
parties had relied on inconsistent theories. As Barton explained, "[t]he trial court
must instruct on lesser included offenses ... [supported by the evidence]...,
regardless of the theories of the case proffered by the parties." (Barton, supra, 12
Cal.4th 186, 203, 47 Cal.Rptr.2d 569, 906 P.2d 531.) Barton confirmed at length
that there was substantial support for both heat of passion and unreasonable self-
defense in the confused circumstances surrounding the shooting at issue. (Id. at pp.
201-203, 47 Cal.Rptr.2d 569, 906 P.2d 531.)

Under Barton, heat of passion and unreasonable self-defense, as forms of a lesser

offense included in murder, thus come within the broadest version of the California
duty to provide sua sponte instructions on all the material issues presented by the
evidence. (Sedeno, supra, 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.) In
the interests of justice, this rule demands that when the evidence suggests the
defendant may not be guilty of the charged offense, but only of some lesser
included offense, the jury must be allowed to "consider the full range of possible
verdicts—not limited by the strategy, ignorance, or mistakes of the parties," so as
to "ensure that the verdict is no harsher or more lenient than the evidence merits."
(Wickersham, supra, 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311, italics
added; see also Barton, supra, 12 Cal.4th 186, 196, 47 Cal.Rptr.2d 569, 906 P.2d
531.) The inference is inescapable that, regardless of the tactics or objections of the
parties, or the relative strength of the evidence on alternate offenses or theories, the
rule requires sua sponte instruction on any and all lesser included offenses, or
theories thereof, which are supported by the evidence. In a murder case, this means
that both heat of passion and unreasonable self-defense, as forms of voluntary
manslaughter, must be presented to the jury if both have substantial evidentiary
support.

The People raise several objections to a rule which fails to limit the sua sponte
instructional duty to those lesser offenses or theories most obviously and openly
presented by the trial record. None of the People's arguments are convincing.

First, the People seek to diminish the force of Barton by distinguishing that case in
several respects. They suggest Barton was solely concerned with the unfairness, to
the prosecution in particular, that would arise if 881*881 the defendant could
preclude lesser offense instructions which the prosecution actually wished to
present. No similar unfairness arose here, the People assert, because the
prosecution, like the defense, relied exclusively on a theory other than voluntary
manslaughter and neither party sought instructions on heat of passion.

Moreover, the People urge, Barton involved a defendant's attack on his conviction
of a lesser included offense over his objection. Barton, they assert, did not establish
that a conviction of the charged offense may be challenged because the defendant
was denied the opportunity for conviction on every latent, if technically plausible,
theory of a lesser included offense. Such a rule, the People suggest, allows a
defendant to remain silent about instructions, pursue only the strongest line of
defense, gamble that the court's "incomplete" lesser offense instructions will
produce an acquittal or conviction of the lesser offense, then complain on appeal if
convicted of the charged offense.

Aside from Barton, the People contend that Sedeno's policies are not furthered by
requiring the court, sua sponte, to present the jury with all supportable theories of a
lesser included offense, even those on which the defendant has not relied. So long
as the jury may consider at least one theory of a lesser included offense, the People
reason, there is no unfair all-or-nothing choice between the charged offense and
acquittal. Indeed, the People aver, lesser offense instructions may harm more than
help the defendant when they advance theories that are obscure in the evidence,
were not pursued in the defense case, and actually contradict the defense presented.

Finally, the People suggest, the sua sponte rule of Sedeno stemmed in significant
part from a concern that counsel's inadvertence might prejudice the defendant by
causing a pertinent lesser included offense to be withheld from the jury. However,
the People assert, the doctrine of constitutionally ineffective counsel has developed
substantially since Sedeno was decided. Today, the People insist, mistaken failures
to request lesser offense instructions are best handled through the procedures by
which such ineffective assistance may be remedied.

The general answer to these arguments is the one we have already given. The
California rule requiring sua sponte instructions on all lesser included offenses,
insofar as supported by the evidence, simply addresses concerns broader than those
the People identify here. As we have seen, the rule protects both the defendant and
the prosecution against a verdict contrary to the evidence, regardless of the parties'
own perceptions of their strongest lines of attack or defense. The rule's purpose is
not simply to guarantee some plausible third choice between conviction of the
charged offense or acquittal, but to assure, in the interest of justice, the most
accurate possible verdict encompassed by the charge and supported by the
evidence.[8]

These overriding considerations exist in every case, regardless of its procedural

posture. They would be substantially undermined if a trial court were permitted to
limit its instructions on lesser included offenses to those theories the court believes
have the greatest merit or conform to the defense actually presented, while
ignoring other theories also supported by the evidence.[9]
882*882 We therefore affirm that a trial court errs if it fails to instruct, sua sponte,
on all theories of a lesser included offense which find substantial support in the
evidence. On the other hand, the court is not obliged to instruct on theories that
have no such evidentiary support. Accordingly, we next consider whether there
was substantial evidence in this case to support a verdict of manslaughter based on
heat of passion. In our view, such evidence existed here.

As our prior decisions explain, the existence of "any evidence, no matter how
weak" will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant is guilty only of the
lesser offense is "substantial enough to merit consideration" by the jury. (Flannel,
supra, 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1, original italics; see
also People v. Bacigalupo (1991) 1 Cal.4th 103, 127, 2 Cal.Rptr.2d 335, 820 P.2d
559; People v. Ramos (1982) 30 Cal.3d 553, 582, 180 Cal.Rptr. 266, 639 P.2d
908.) "Substantial evidence" in this context is "`evidence from which a jury
composed of reasonable [persons] could ... conclude[ ]'" that the lesser offense, but
not the greater, was committed. (Flannel, supra, at p. 684, 160 Cal.Rptr. 84, 603
P.2d 1, quoting People v. Carr (1972) 8 Cal.3d 287, 294, 104 Cal. Rptr. 705, 502
P.2d 513; accord, Barton, supra, 12 Cal.4th 186, 201, fn. 8, 47 Cal. Rptr.2d 569,
906 P.2d 531 ["evidence that a reasonable jury could find persuasive"].)

In deciding whether there is substantial evidence of a lesser offense, courts should

not evaluate the credibility of witnesses, a task for the jury. (Flannel, supra, 25
Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1; see also Wickersham, supra, 32
Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311.) Moreover, as we have noted,
the sua sponte duty to instruct on lesser included offenses, unlike the duty to
instruct on mere defenses, arises even against the defendant's wishes, and
regardless of the trial theories or tactics the defendant has actually pursued. Hence,
substantial evidence to support instructions on a lesser included offense may exist
even in the face of inconsistencies presented by the defense itself.[10]

An intentional, unlawful homicide is "upon a sudden quarrel or heat of passion" (§

192(a)), and is thus voluntary manslaughter (ibid.), if the killer's reason was
actually obscured as the result of a strong passion aroused by a "provocation"
sufficient to cause an "`ordinary [person] of average disposition... to act rashly or
without due deliberation 883*883 and reflection, and from this passion rather than
from judgment.'" (People v. Berry (1976) 18 Cal.3d 509, 515, 134 Cal.Rptr. 415,
556 P.2d 777, quoting People v. Valentine (1946) 28 Cal.2d 121, 139, 169 P.2d 1;
People v. Borchers (1958) 50 Cal.2d 321, 328-329, 325 P.2d 97.) "`[N]o specific
type of provocation [is] required....'" (Wickersham, supra, 32 Cal.3d 307, 326, 185
Cal.Rptr. 436, 650 P.2d 311, quoting People v. Berry, supra, 18 Cal.3d at p. 515,
134 Cal.Rptr. 415, 556 P.2d 777.) Moreover, the passion aroused need not be anger
or rage, but can be any "`"[v]iolent, intense, high-wrought or enthusiastic
emotion"'" (Wickersham, supra, at p. 327, 185 Cal.Rptr. 436, 650 P.2d 311,
quoting People v. Berry, supra, 18 Cal.3d at p. 515, 134 Cal.Rptr. 415, 556 P.2d
777) other than revenge (People v. Valentine, supra, 28 Cal.2d at p. 139, 169 P.2d
1). "However, if 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...." (Wickersham, supra, 32 Cal.3d at p. 327, 185 Cal. Rptr. 436, 650
P.2d 311.)

Here, there was evidence that a sizeable group of young men, armed with
dangerous weapons and harboring a specific hostile intent, trespassed upon
domestic property occupied by defendant and acted in a menacing manner. This
intimidating conduct included challenges to the defendant to fight, followed by use
of the weapons to batter and smash defendant's vehicle parked in the driveway of
his residence, within a short distance from the front door. Defendant and the other
persons in the house all indicated that the number and behavior of the intruders,
which defendant characterized as a "mob," caused immediate fear and panic.
Under these circumstances, a reasonable jury could infer that defendant was
aroused to passion, and his reason was thus obscured, by a provocation sufficient
to produce such effects in a person of average disposition.[11]

A rational jury could also find that the intense and high-wrought emotions aroused
by the initial threat had not had time to cool or subside by the time defendant fired
the first few shots from inside the house, then emerged and fired the fatal second
volley after the fleeing intruders. At one point in his police statement, defendant
suggested that he acted in one continuous, chaotic response to the riotous events
outside his door.[12] Finally, even though defendant insisted in his police statement
that he did not "aim[ ]" or fire "at them," a jury could reasonably disbelieve that
claim and conclude, from all the evidence, that defendant killed intentionally, but
while his judgment was obscured due to passion aroused by sufficient provocation.

We therefore conclude that the trial court erred in this case when it failed to
instruct, even absent a defense request, on heat of passion as a theory of voluntary
manslaughter. The issue remains whether the error warrants reversal of defendant's
murder conviction, as the Court of Appeal concluded. While we do not finally
resolve this issue, we are persuaded that the standard of reversal employed by the
Court of Appeal, in accordance with existing California law, is too strict. As we
explain below, that standard 884*884 can and should be replaced with a rule under
which actual prejudice is determined from the whole record. We will therefore
remand the cause to the Court of Appeal for a determination of prejudice under
correct principles.

Standard of reversal.

Under the so-called Sedeno standard we have traditionally applied to the erroneous
omission of instructions on lesser included offenses, the error requires reversal
unless "the factual question posed by the omitted instruction was necessarily
resolved adversely to the defendant under other, properly given instructions."
(Sedeno, supra, 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913.) Here, the jury
did not necessarily reject a heat of passion theory under other instructions, and the
People do not suggest otherwise.

However, the People urge us to reconsider Sedeno in this respect. The Sedeno
standard, the People insist, is too stringent a test whether the error is of federal
constitutional magnitude, or is simply a matter of state law. In either case, the
People suggest, reversal is not required if an evaluation of the entire record
demonstrates that the error was actually harmless. Defendant insists that the failure
to instruct sua sponte on all lesser included offenses supported by the evidence is
error under both the state and federal Constitutions. In its federal form, he claims,
the error is reversible per se. Alternatively, he contends, Sedeno states the
minimum level of "prejudice" scrutiny permitted under either state or federal law.

We conclude that the failure to instruct sua sponte on a lesser included offense in a
noncapital case is, at most, an error of California law alone, and is thus subject
only to state standards of reversibility. We further determine, in line with recent
authority, that such misdirection of the jury is not subject to reversal unless an
examination of the entire record establishes a reasonable probability that the error
affected the outcome. (Cal. Const, art. VI, § 13; Watson, supra, 46 Cal.2d 818,
836, 299 P.2d 243.) Accordingly, we overrule the Sedeno standard of reversal in
this context.

At the outset, we reject any implication that the alleged error at issue in this case—
the failure to instruct sua sponte on an uncharged lesser included offense, or any
aspect thereof—is one which arises under the United States Constitution. In
Modesto, and again in Sedeno, we concluded that the right at issue was "the
constitutional right to have the jury determine every material issue presented by the
evidence" (Modesto, supra, 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33;
Sedeno, supra, 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913), but neither
those decisions, nor any other of our authorities before or since, specified that we
were relying to any degree on federal constitutional principles.

Meanwhile, the United States Supreme Court has expressly refrained from
recognizing a federal constitutional right to instructions on lesser included offenses
in noncapital cases. In Keeble v. United States (1973) 412 U.S. 205, 93 S.Ct. 1993,
36 L.Ed.2d 844 (Keeble), the court confirmed that under rule 31(c) of the Federal
Rules of Criminal Procedure (18 U.S.C.) (rule 31(c)), applicable only in federal
criminal actions, the defendant is entitled to instructions on a lesser included
offense if the jury could rationally find guilt of the lesser offense but acquit of the
greater. (412 U.S. at pp. 208-209, 93 S.Ct. 1993.)[13] The court concluded that the
rule 31(c) entitlement applied to trials under the Major Crimes Act (MCA), the
federal criminal law governing offenses by Native Americans on reservation land,
even where the lesser included offense on which instructions 885*885 were sought
was one otherwise not subject to prosecution under the MCA, but only under tribal
law. (Keeble, supra, 412 U.S. at pp. 208-214, 93 S.Ct. 1993.) While constitutional
concerns influenced the court's analysis of the relationship between rule 31(c) and
the MCA, the decision noted "we have never explicitly held that the Due Process
Clause of the Fifth Amendment guarantees the right of a defendant to have the jury
instructed on a lesser included offense .... In view of our interpretation of the
[MCA], those are questions that we need not face." (Keeble, supra, at p. 213, 93
S.Ct. 1993, fn. omitted.)[14]

Subsequently, the high court acknowledged that in particular circumstances, the

denial of instructions on lesser included offenses in a capital case would violate
the federal Constitution. However, the court emphasized that it was limiting its
holding to the capital context. Moreover, the strict limitations the court has since
placed even on the rule for capital trials suggest reluctance to formulate any
general constitutional right to instructions on lesser offenses.

Thus, in Beck v. Alabama (1980) 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392
(Beck), the court concluded that Alabama could not constitutionally impose a death
sentence after applying a state statute, limited to capital cases, that prohibited the
jury from considering a lesser noncapital offense necessarily included within the
capital charge and supported by the evidence. The court made clear at the outset
that "we have never held that a defendant is entitled to a lesser included offense
instruction as a matter of due process." (Id. at p. 637, 100 S.Ct. 2382.) On the other
hand, the court noted the "value to the defendant of this procedural safeguard," as
evidenced by "the nearly universal acceptance ... in both state and federal courts"
that a defendant is entitled to instructions on lesser included offenses warranted by
the evidence. (Ibid.) Indeed, the court pointed out, Alabama itself granted the right
under appropriate circumstances in noncapital cases. (Id. at pp. 636-637, 100 S.Ct.
2382.) Such protection, the court reasoned, is "especially important" in a capital
case, and the risk that a jury will convict of the charged offense as an alternative to
complete acquittal when it believes the evidence shows only some lesser crime
"cannot be tolerated in a case in which the defendant's life is at stake." (Id. at p.
637, 100 S.Ct. 2382.) "Thus, if the unavailability of a lesser included offense
instruction enhances the risk of an unwarranted conviction, [the state] is
constitutionally prohibited from withdrawing that option from the jury in a capital
case." (Id. at p. 638, 100 S.Ct. 2382.)

The Beck rule has never since been extended beyond the capital context. Moreover,
in two more recent cases, the high court has given Beck itself a narrow
construction.

In Schad, supra, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555, a five-justice
majority rejected a capital defendant's contention that although his jury was
instructed on the lesser included offense of second degree murder, 886*886 he was
additionally entitled to instructions on the lesser included offense of robbery. The
Schad majority explained that the Eighth Amendment concerns at issue in Beck are
focused entirely on the reliability of the capital verdict itself, i.e., whether the jury
may have been forced, by an all-or-nothing verdict option, to convict of a capital
crime against its view of the evidence in order to avoid complete acquittal. (Id. at
pp. 646-647, 100 S.Ct. 2382.) Hence, the majority reasoned, Beck is satisfied if a
capital jury receives only a single noncapital third option between the capital
charge and acquittal, since this relieves the all-or-nothing pressure to return an
inaccurate capital verdict in order to avoid acquitting the defendant entirely. (Id. at
p. 647, 100 S.Ct. 2382.)[15]

Recently, in Hopkins v. Reeves (1998) 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d
76 (Reeves), the high court concluded that the principles of Beck not require
Nebraska to provide instructions on lesser nonincluded offenses in capital cases
when it did not allow such instructions in noncapital cases. As the central core of
its analysis, the Reeves court noted that the Nebraska scheme before it was
distinguishable "in two critical respects" from the invalid Alabama statute at issue
in Beck. (Reeves, supra, 524 U.S. at p. ___, 118 S.Ct. at p. 1900.) First, Nebraska,
unlike Alabama, permitted instructions in capital cases, as in noncapital cases, on
lesser offenses it deemed to be included in the capital charge. (Ibid.) Therefore,
Nebraska erected no "`artificial barrier'" in a capital case to conviction of a
noncapital offense as an alternative to acquittal. (Ibid.) Second, Nebraska denied
instructions on nonincluded offenses to all defendants, capital and noncapital, and
thus, unlike Alabama, "did [not] treat capital cases differently from noncapital
cases." (Ibid.)

Reeves observed that "[b]y ignoring these distinctions" to conclude that the Eighth
Amendment required Nebraska to allow instructions on nonincluded offenses in
capital cases, the court of appeals had unjustifiably "limited state sovereignty in a
manner more severe than the rule in Beck." (Reeves, supra, 524 U.S. ___, ___, 118
S.Ct. 1895, 1901.) Beck, the Reeves court reasoned, stands only for the proposition
"that a State may not erect a capital-specific, artificial barrier to the provision of
instructions that actually are lesser included offenses under state law." (Reeves,
supra, 524 U.S. at p. ___, 118 S.Ct. at p. 1901, italics added.)[16]

Thus, the high court's decisions leave substantial doubt that the federal
Constitution confers any right to lesser included offense instructions in noncapital
cases. They provide no basis whatever for a conclusion that the federal charter
would require such instructions, as does California, on the court's 887*887 own
motion. Indeed, this court has explicitly recognized that the California rule
requiring sua sponte instructions on lesser included offenses suggested by the
evidence is independent of federal law, (Geiger, supra, 35 Cal.3d 510, 519, 199
Cal.Rptr. 45, 674 P.2d 1303.)

Accordingly, we affirm that the rule requiring sua sponte instructions on all lesser
necessarily included offenses supported by the evidence derives exclusively from
California law. In light of the United States Supreme Court's careful disclaimers,
and its tendency to interpret related federal rules, both constitutional and
nonconstitutional, in a narrow way, we decline to do what the high court has
expressly not done, and to hold that such an instructional rule is required in
noncapital cases by the federal Constitution.[17]

Defendant asserts, however, that where, as here, instructions on a lesser included

offense were given as a matter of state law, the incompleteness of those
instructions constitutes federal constitutional error subject to federal standards of
appellate review. First, defendant briefly suggests that "the failure to instruct on
heat of passion manslaughter effectively omitted an element of the offense and
removed the issue of provocation negating malice from the jury." (Italics added.)
This, defendant urges, is a form of instructional error subject to direct scrutiny
under the federal Constitution.[18]
We are not persuaded. Defendant was not convicted of manslaughter on the basis
of incomplete instructions, but of murder, an offense supported by the evidence as
to which defendant claims no misinstruction. His complaint, as we read it, is not
that an element of the charged offense of murder was removed from the jury's
consideration, but simply that the omission of an "element" of voluntary
manslaughter denied him full jury consideration of that lesser alternative to
murder. As explained above, the United States Supreme Court has acknowledged
the value of lesser included offense instructions as a safeguard against
overconviction in lieu of an equally unwarranted acquittal. However, the high court
has explicitly refrained from according these interests federal constitutional stature
in noncapital cases. It thus appears likely the United States Supreme Court would
deem a state conviction for a charged noncapital offense to be untainted by federal
constitutional error in the complete absence of unrequested instructions on lesser
included offenses. Under these circumstances, defendant's conviction cannot
acquire such a taint simply because instructions on a lesser included offense were
given but, as provided in the absence of a defense request, were incomplete.[19]

Citing Hicks v. Oklahoma (1980) 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175
(Hicks), 888*888 defendant urges at somewhat greater length that he had a state-
created liberty interest in a jury determination, even absent a request therefor, of all
issues bearing on his guilt of the lesser included offense of voluntary manslaughter
as an alternative to the charge of murder. The incomplete manslaughter
instructions, defendant insists, denied him this right with respect to the issue
whether heat of passion rendered him guilty only of the lesser offense. The denial
of this state-created right to jury findings, defendant avers, cannot be cured under
the federal Constitution by any form of appellate review that speculates on what a
properly instructed jury would have done. (See Hicks, supra, 447 U.S. at pp. 346-
347, 100 S.Ct. 2227; see also demons v. Mississippi (1990) 494 U.S. 738, 746, 110
S.Ct. 1441, 108 L.Ed.2d 725 (Clemons).)

However, defendant's argument lacks merit for reasons we recently set forth in
People v. Wims (1995) 10 Cal.4th 293, 41 Cal.Rptr.2d 241, 895 P.2d 77 (Wims).
Wims addressed what standard of reversal should apply when the state statutory
right (see § 969c) to jury determination of the truth of a noncapital sentencing
enhancement (there, use of a dangerous and deadly weapon (§ 12022, subd. (b)) is
violated by instructional omission of an element of the enhancement. Wims held
that such misinstruction is state law error alone, and thus subject, under article VI,
section 13 of the California Constitution, to the Watson harmless error test. In
reaching this conclusion, Wims rejected the argument that the state-created right to
jury determination of noncapital sentencing enhancements implicates federal due
process interests under Hicks, and thus precludes harmless error review under state
standards.

As Wims explained, Hicks focused on a state statutory scheme that generally

accorded sentencing power and discretion to the jury. The defendant's jury,
however, had been prevented from exercising this discretion by a specific statute
that mandated a 40-year term for habitual offenders. The habitual offender
provision was ruled unconstitutional after trial but before the appeal was decided.
State law would have allowed the appellate court to uphold the 40-year sentence by
substituting its sentencing judgment for the jury's, but the appellate court did not
do so. Instead, it affirmed on the sole ground that the sentence was within the range
the jury could have imposed even absent the invalid mandatory provision. Under
these circumstances, Hicks held, the defendant had not received his due process
right to the actual exercise of sentencing discretion by either of the entities in
which, by state law, such discretion resided. (Hicks, supra, 447 U.S. 343, 347, 100
S.Ct. 2227, 65 L.Ed.2d 175; Wims, supra, 10 Cal.4th 293, 309, 41 Cal.Rptr.2d 241,
895 P.2d 77.)

But in Wims, we found the circumstances before us distinguishable from Hicks in

crucial 889*889 ways. Unlike the laws at issue in Hicks, the California noncapital
sentence-enhancement scheme affords a defendant no right to normative jury
discretion in sentencing, but only the narrower right to a fact-finding determination
as to the truth of an alleged enhancement. Moreover, omission of an element of an
enhancement does not entirely deprive the defendant of a jury determination of the
enhancement itself; indeed, the jury in Wims "did render verdicts on each weapon-
use allegation." (Wims, supra, 10 Cal.4th 293, 310, 41 Cal.Rptr.2d 241, 895 P.2d
77, original italics.) This form of state law error, Wims concluded, thus does not
invoke the rationale of Hicks. (Ibid.; see also People v. Odle (1988) 45 Cal.3d 386,
411-12, 247 Cal.Rptr. 137, 754 P.2d 184 [holding Hicks rationale not applicable to
a failure to instruct on the elements of a special circumstance].)

In addition, Wims noted, in demons, supra, 494 U.S. 738, 110 S.Ct. 1441, 108
L.Ed.2d 725, the high court made clear that Hicks imposes no absolute federal due
process bar against application of normal state law standards of appellate review of
a defective jury sentencing determination, the right to which also arose under state
law. (Clemons, supra, 494 U.S. 738, 741, 747, 110 S.Ct. 1441, 108 L.Ed.2d 725;
Wims, supra, 10 Cal.4th 293, 310, 41 Cal.Rptr.2d 241, 895 P.2d 77.) Clemons thus
supports the view, Wims reasoned, that any right to a jury determination arising
from state law is "qualified" and limited by the state law standards of appellate
review applicable to that determination. (Wims, supra, 10 Cal.4th at p. 310, 41
Cal.Rptr.2d 241, 895 P.2d 77, italics added.)

"The high court's reasoning in demons [thus] applies to California's scheme for
section 12022[, subdivision ](b) sentence enhancements. Defendants' state
statutory right to jury findings on [such an] enhancement is constitutionally
qualified by the duty of California appellate courts to examine `the entire cause'
when any `misdirection of the jury' is alleged and to affirm the judgment absent a
`miscarriage of justice.' (Cal. Const., art. VI, § 13.) Contrary to defendants'
suggestion, therefore, if we examine the record of this trial to determine whether
the instructional error resulted in a miscarriage of justice, we do not engage in any
impermissible attempt to `substitute' our determination for the jury determination a
defendant may claim under section 969c. Indeed, the possibility of such a
corrective appellate determination is inherent in the state statutory scheme for jury
determination. When rendered, such appellate review complements, and thus
affords, defendants their full jury rights and, thus, due process of law under Hicks.
[Citation.]" (Wims, supra, 10 Cal.4th 293, 310-311, 41 Cal.Rptr.2d 241, 895 P.2d
77.)

Similar principles apply here. The state constitutional requirement of sua sponte
instructions allowing a jury determination of lesser uncharged offenses creates
only a right to jury fact-finding, not to the exercise of normative jury discretion.
Moreover, that right is itself qualified and limited by the standards of appellate
review also established by the state Constitution. When we assert and exercise our
power to review the error in this way, we usurp no due process interest identified
by Hicks. Defendant's claim must therefore be dismissed.

When "state standards alone have been violated, the State is free ... to apply its own
state harmless-error rule to such errors of state law." (Cooper v. California (1967)
386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730.) We therefore determine that
federal law has no effect on the appropriate standard of California appellate review
when, in a noncapital case, the defendant challenges his otherwise valid conviction
of a charged offense on grounds the trial court failed in its sua sponte duty under
California law to provide instructions, correct and complete, on all lesser included
offenses, including all theories thereof, which enjoyed substantial support in the
evidence. It remains to consider whether correct principles of California
jurisprudence require, or even permit, continued adherence to the strict Sedeno
standard of reversal for this form of state law error. We conclude they do not.
890*890 As we have explained in several recent decisions, the California
Constitution, unlike its federal counterpart, contains a provision specifically
addressed to the issue of reversible error. It provides that "[n]o judgment shall be
set aside" for various kinds of error in the conduct of the trial, including
"misdirection of the jury" and "improper admission or rejection of evidence,"
unless "an examination of the entire cause, including the evidence" indicates that
the error resulted in a "miscarriage of justice." (Cal. Const., art. VI, § 13, italics
added.)[20] This provision was "`added by the electorate of this state for the specific
purpose of abrogating the preexisting rule that had treated any substantial error as
reversible per se.'" (Wims, supra, 10 Cal.4th 293, 314, 41 Cal.Rptr.2d 241, 895
P.2d 77, quoting People v. Cahill (1993) 5 Cal.4th 478, 501, 20 Cal.Rptr.2d 582,
853 P.2d 1037 (Cahill), original italics.)

The phrase "misdirection of the jury," as used in the constitutional provision,

extends to the form of error at issue here. "` "The word `misdirection' logically
includes every kind of instructional error. It seems manifest that incorrect,
ambiguous, conflicting, or wrongly omitted instructions may equally `misdirect'
the jury's deliberations. Nothing in the language or history of article VI, section 13,
suggests that its requirement of actual prejudice, determined by reference to `the
entire cause, including the evidence,' applies to some forms of `misdirection,' but
not to others." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 579, 34
Cal.Rptr.2d 607, 882 P.2d 298.)'" (People v. Flood (1998) 18 Cal.4th 470, 487, 76
Cal.Rptr.2d 180, 957 P.2d 869 (Flood), quoting Wims, supra, 10 Cal.4th 293, 314-
315, 41 Cal.Rptr.2d 241, 895 P.2d 77.)

In Cahill, a renewed focus on the meaning of article VI, section 13 of the Colorado
Constitution caused us to conclude that we must abandon, insofar as based on state
law, the decades-old California rule of automatic reversal where an involuntary
confession was erroneously admitted in a criminal trial. Cahill reasoned as follows:
Article VI, section 13 eliminated the prior appellate presumption that any
substantial trial error causes a miscarriage of justice. The Constitution's
requirement that the record and evidence be examined for actual unfair harm in the
particular case specifically applies to errors in the admission of evidence. This duty
is not eliminated simply because the error complained of was itself constitutional.
In rare instances involving "fundamental `structural defects'" (Cahill, supra, 5
Cal.4th at p. 502, 20 Cal.Rptr.2d 582, 853 P.2d 1037) in a criminal proceeding (for
example, the complete denial of the right to a jury, or to an impartial judge), it may
be impossible, or beside the point, to evaluate the resulting harm by resort to the
trial record, and a miscarriage of justice may arise regardless of the evidence.
However, the improper admission of a confession, even if state constitutional error,
is an evidentiary mistake, a mere "trial error" (ibid.) that occurred during the
presentation of the case to the jury. The effect of this form of error can be
quantitatively assessed in light of the evidence to determine whether the error was
prejudicial or harmless. (Id. at pp. 487-502, 20 Cal.Rptr.2d 582, 853 P.2d 1037;
also cf. Arizona v. Fulminante (1991) 499 U.S. 279, 307-309, 111 S.Ct. 1246, 113
L.Ed.2d 302.)

"As we have seen, the California reversible-error provision, by its terms, directs
that the prejudicial nature of such an evidentiary error be determined `after an
examination of the entire cause, including the evidence.' (Cal. Const., art. VI, §
13.)" (Cahill, supra, 5 Cal.4th 478, 502, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)
Under such circumstances, "[t]he prejudicial effect of such error is to be
determined, for purposes of California law, under the generally applicable
reasonable-probability test embodied in article VI, section 13.... [Citing Watson,
supra, 46 Cal.2d 818, 836, 299 P.2d 243.]" (Cahill, 891*891 supra, 5 Cal.4th at
pp. 509-510, 20 Cal. Rptr.2d 582, 853 P.2d 1037.)[21]

We have since invoked similar principles to conclude that the Watson harmless
error test applies to two forms of state law instructional error in criminal trials. In
Wims, supra, 10 Cal.4th 293, 41 Cal.Rptr.2d 241, 895 P.2d 77, we held that where
the right to a jury trial on a noncapital sentence enhancement arises solely from
state law, the erroneous omission to instruct on an element of the enhancement is
subject, by virtue of California Constitution article VI, section 13, to the Watson
standard of reversal. (Wims, supra, 10 Cal.4th at pp. 314-316, 41 Cal.Rptr.2d 241,
895 P.2d 77.) In Flood, supra, 18 Cal.4th 470, 76 Cal.Rptr.2d 180, 957 P.2d 869,
we ruled that any state law error arising from a failure to instruct on an element of
a charged criminal offense must, pursuant to article VI, section 13, be evaluated
under Watson, despite prior California cases suggesting that with limited
exceptions, such error is reversible per se. (Flood, supra, 18 Cal.4th at pp. 480-
491, 76 Cal.Rptr.2d 180, 957 P.2d 869.)

As both Wims and Flood make clear, misdirection of the jury, like the improper
admission of evidence at issue in Cahill, is a form of error for which the California
Constitution expressly requires an individualized prejudice assessment. (Flood,
supra, 18 Cal.4th 470, 487-490, 76 Cal.Rptr.2d 180, 957 P.2d 869; Wims, supra,
10 Cal.4th 293, 314, 41 Cal.Rptr.2d 241, 895 P.2d 77.) Moreover, as in Cahill, the
missteps at issue in both Wims and Flood were mere errors in the presentation of
the case to the jury, not fundamental structural defects that rendered the
proceedings unfair regardless of the evidence. (Flood, supra, 18 Cal.4th at pp. 489-
490, 76 Cal.Rptr.2d 180, 957 P.2d 869; Wims, supra, 10 Cal.4th at pp. 312-314, 41
Cal. Rptr.2d 241, 895 P.2d 77.)

Similar principles govern here, and their application requires abrogation of the
Sedeno standard of near-automatic reversal. We explain our reasoning in detail.

The stringent Sedeno test of near-automatic reversal for erroneous failure to

instruct on lesser included offenses had its origins in Modesto, supra, 59 Cal.2d
722, 31 Cal.Rptr. 225, 382 P.2d 33. Modesto held that, where the evidence
supported such instructions, their omission violated the defendant's "constitutional
right to have the jury determine every material issue presented by the evidence."
(Id. at p. 730, 31 Cal.Rptr. 225, 382 P.2d 33.) Modesto then expressly rejected
application of the Watson standard to determine whether the error was reversible,
reasoning that "[r]egardless of how overwhelming the evidence of guilt may be, the
denial of such a fundamental right cannot be cured by article VI, [former] section 4
1/2 [now section 13] of the California Constitution, for the denial of such a right is
itself a miscarriage of justice within the meaning of that provision." (Modesto,
supra, 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.)

Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913, later modified
Modesto to the extent of acknowledging that Modesto error could be deemed
harmless if the issue which would have been presented by the omitted instructions
on lesser included offenses was necessarily resolved adversely to the defendant
under other, proper instructions. (Sedeno, supra, 10 Cal.3d at p. 721, 112 Cal.Rptr.
1, 518 P.2d 913.) With this limited exception, however, the erroneous failure to
instruct on a lesser included offense 892*892 supported by the evidence has
remained subject to the Modesto rule of automatic reversal.[22]

Neither Modesto nor Sedeno provided significant analysis to support the

conclusion that the California Constitution precludes, rather than requires,
examination of the entire record, including the evidence, for actual harm. Indeed,
as we recently observed, none of the authorities cited by Modesto to support a
standard of per se reversal for this form of error compelled any such holding.
(Flood, supra, 18 Cal.4th 470, 488, 76 Cal. Rptr.2d 180, 957 P.2d 869, and cases
cited.)[23]

We now conclude that the rigid Modesto standard, even as slightly modified by
Sedeno, is a violation of article VI, section 13 of the California Constitution. As we
have seen, that provision requires that in cases of "misdirection of the jury," an
appellate court must examine the "entire cause, including the evidence," to
determine if a "miscarriage of justice" occurred. (Ibid.) This obligation cannot be
avoided by Modesto's device of asserting, as an ipse dixit, that a particular form of
error is itself a miscarriage of justice, regardless of the evidence.

The error in failing sua sponte to instruct, or to instruct fully, on a lesser included
offense is not a fundamental structural defect in the mechanism of the criminal
proceeding (Cahill, supra, 5 Cal.4th 478, 502, 20 Cal. Rptr.2d 582, 853 P.2d 1037)
which cannot or should not be evaluated for prejudice by reference to "the entire
cause, including the evidence" (Cal. Const., art. VI, § 13). Instead, like the
erroneous introduction of an involuntary confession, or the instructional omission
of an element of a charged offense or sentencing enhancement, it is a mere trial
error, one committed in the presentation of the case to the jury. By the same token,
the probable adverse effect of an erroneous failure to provide a lesser offense
option in a particular case can readily be assessed by an individualized, concrete
examination of the record in that case. Under such circumstances, as in Cahill, the
error must therefore be evaluated under the generally applicable California test for
harmless error, that set forth in Watson[24].

A different result cannot be reached by characterizing the error as the denial of the
defendant's "fundamental" right to a jury determination of all the material issues,
then reasoning that an appellate court's determination of harmlessness on the
evidence cannot cure the deprivation. As Wims indicated, any state law right to a
jury determination of particular issues is qualified in turn by the appellate review
standards set forth in article VI, section 13 of the California Constitution. (Wims,
supra, 10 Cal.4th 293, 310-311, 41 Cal.Rptr.2d 241, 895 P.2d 77.) And as Cahill,
affirmed, the Constitution's bar against appellate reversals where error was
harmless applies even when the error itself arose under the same charter. 893*893
(Cahill, supra, 5 Cal.4th 478, 490-491, 20 Cal.Rptr.2d 582, 853 P.2d 1037; see
also Flood, supra, 18 Cal.4th 470, 479-491, 76 Cal.Rptr.2d 180, 957 P. 2d 869.)

Nor can it be said that an erroneous failure to instruct on a lesser included offense
is necessarily prejudicial, on the premise that if the evidence was substantial
enough to warrant lesser offense instructions in the first place, it must have been
strong enough to affect the outcome had the instructions not been omitted. In fact,
the two standards of evidentiary review are distinct.

As explained above, under Modesto, Sedeno, and their progeny, the sua sponte
duty to instruct on a lesser included offense arises if there is substantial evidence
the defendant is guilty of the lesser offense, but not the charged offense. (Flannel,
supra, 25 Cal.3d 668, 684-685, 160 Cal.Rptr. 84, 603 P.2d 1.) This standard
requires instructions on a lesser included offense whenever "`a jury composed of
reasonable [persons] could ... conclude[]'" that the lesser, but not the greater,
offense was committed. (Id. at p. 684, 160 Cal.Rptr. 84, 603 P.2d 1, italics added,
quoting People v. Carr, supra, 8 Cal.3d 287, 294, 104 Cal.Rptr. 705, 502 P.2d
513.) In deciding whether evidence is "substantial" in this context, a court
determines only its bare legal sufficiency, not its weight. (See Flannel, supra, 25
Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1; see also Wickersham, supra, 32
Cal.3d 307, 324, 185 Cal. Rptr. 436, 650 P.2d 311.)

Appellate review under Watson, on the other hand, takes an entirely different view
of the evidence. Such post-trial review 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 is so comparatively weak,
that there is no reasonable probability the error of which the defendant complains
affected the result. Accordingly, a determination that a duty arose to give
instructions on a lesser included offense, and that the omission of such instructions
in whole or in part was error, does not resolve the question whether the error was
prejudicial. Application of the Watson standard of appellate review may disclose
that, though error occurred, it was harmless.[25]

Accordingly, we conclude that 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 Watson. A conviction of the charged offense may be reversed in
consequence of this form of error only if, "after an examination of the entire cause,
including the evidence" (Cal. Const., art. VI, § 13), it appears "reasonably
probable" the defendant would have obtained a more favorable outcome had the
error not occurred (Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243).[26]

As indicated above, the Court of Appeal in the present case did not attempt to
evaluate 894*894 the erroneous omission of instructions on heat of passion by
examining the entire record, including the evidence, to determine whether it was
reasonably probable the error affected the outcome. Instead, the court applied prior
California decisions requiring that defendant's conviction be reversed unless the
jury necessarily resolved the erroneously omitted heat of passion issue in another
context. Because we here overrule the authority on which the Court of Appeal
relied, we deem it appropriate to remand the matter to the Court of Appeal to
permit that court to determine prejudice under the principles established herein. If
the Court of Appeal concludes by correct standards that the error was harmless, it
should then address the additional issues raised by defendant on appeal. (Cahill,
supra, 5 Cal.4th 478, 510, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

CONCLUSION

The judgment of the Court of Appeal is reversed insofar as it holds that defendant's
murder conviction must be reversed because the heat of passion issue erroneously
omitted from instructions on the lesser included offense of voluntary manslaughter
was not necessarily resolved by the jury in another context. The cause is remanded
to the Court of Appeal for further proceedings consistent with the views expressed
in this opinion.

GEORGE, C.J., and WERDEGAR and CHIN, JJ., concur.

MOSK, Justice, dissenting.

I dissent.

In this cause, as in many others, the analysis required of the reviewing court entails
consideration of whether the trial court erred and, if so, whether its error was
reversible.

Because the majority do not resolve either question correctly, I cannot join in their
opinion.

By information filed in the Superior Court of Los Angeles County on behalf of the
People, the district attorney charged that appellant Scott Breverman murdered
Andreas Suryaatmadja — to quote, Breverman "did willfully, unlawfully, and with
malice aforethought murder ... Suryaatmadja, a human being" — and alleged that
he did so by personally using a firearm.

Trial was by jury. In essence, the evidence showed that, one night, Breverman, a
White man, was visited at this house in Chatsworth by some friends; although his
own role was unclear, it was indeed clear that about eight of his friends set upon
Hyun Kim and Yoon Ju, two teenage Asian-American boys, as they were walking
past his house; claiming affiliation with a local street gang, they called Kim and Ju
"Chinks," "Nips," and other racial slurs, beat them with fists and feet and weapons,
and finally let them go; the next night, Kim returned to challenge his assailants to a
fair fight, and brought along seven or eight of his friends, who were also teenage
Asian-American boys, to back him up; his friends included Suryaatmadja, who was
sixteen years old; finding no one in front of the house, Kim slashed one of the tires
of a silver-blue BMW automobile parked in the driveway, which happened to
belong to Breverman; he and his friends began to withdraw; Breverman came out
of 895*895 the house to check the vehicle; Kim and his friends sharply challenged
Breverman to bring his friends out for a fair fight; Breverman activated the
vehicle's alarm system, and went back into the house; Kim and his friends then left;
some minutes later they returned, intent on vandalizing the vehicle; although
Suryaatmadja and some of the other boys apparently hung back, the rest, with
hostile shouts, started battering the vehicle with various instruments; the alarm
sounded; from within the house, Breverman commenced firing at Kim and his
friends, using a 9-millimeter semiautomatic pistol that was not lawfully registered,
shooting off four rounds; the boys fled; leaving the house, and drawing near to the
vehicle, he continued firing, with his arm in a level, locked position, parallel to the
ground, and finally stopped, shooting off an additional ten rounds all told; in the
process, he apparently reloaded the weapon, since he shot off more rounds than its
magazine could hold, and still had two remaining, one in the magazine and one in
the chamber; about one-hundred and eighty-two feet away, Suryaatmadja lay
mortally wounded, shot through the head.

The superior court ruled that the evidence was insufficient for first degree murder,
which requires the unlawful killing of a human being with malice aforethought
plus premeditation and deliberation. It proceeded to instruct the jury on murder,
including second degree murder, which requires only an unlawful killing with
malice aforethought. It also instructed on manslaughter, purportedly as a lesser
offense necessarily included within the greater charged offense of murder,
including voluntary manslaughter. In doing so, it instructed on voluntary
manslaughter via the doctrine of "imperfect self-defense," but not, in statutory
terms, "upon a sudden quarrel or heat of passion" (Pen.Code, § 192, subd. (a)). It
instructed as well on personal use of a firearm.

The jury returned a verdict finding Breverman guilty of second degree murder, and
also finding that he personally used a firearm therein.

The superior court rendered judgment accordingly, sentencing Breverman to prison

for 18 years to life, 15 years to life for second degree murder plus 3 years for
personal use of a firearm.
The Court of Appeal reversed. All of the justices concluded that the superior court
erred by failing to instruct the jury on voluntary manslaughter on a sudden quarrel
or heat of passion in addition to voluntary manslaughter via imperfect self-defense,
reasoning in effect that manslaughter was a lesser offense necessarily included
within the greater charged offense of murder; they also concluded that the error
was, as such an error generally is, "reversible per se" under People v. Sedeno
(1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913. One of the justices wrote
separately to urge our reconsideration of decisions bearing on each question.

II

The majority initially conclude that the superior court erred under California law
by failing to instruct the jury on voluntary manslaughter on a sudden quarrel or
heat of passion in addition to voluntary manslaughter via imperfect self-defense. In
so concluding, their major premise is that a trial court must instruct sua sponte on a
lesser offense necessarily included within a greater, charged offense. Their minor
premise is that manslaughter is a lesser offense necessarily included within the
greater charged offense of murder. We need not consider whether the major
premise is sound. (But see dis. opn. of Brown, J., post, at pp. 905-910 of 77
Cal.Rptr.2d, at pp. 1128-1133 of 960 P.2d.) That is because the minor premise is
not.

It was only relatively recently that we adopted the rule that a trial court must
instruct the jury sua sponte on a lesser offense necessarily included within a greater
charged offense. (People v. Hood (1969) 1 Cal.3d 444, 449-450, 82 Cal.Rptr. 618,
462 P.2d 370.) Traditionally, a court was not required to give such an instruction.
(5 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Trial, § 2926, p. 3587; see
People v. Hood, supra, 1 Cal.3d at p. 450, 82 Cal.Rptr. 896*896 618, 462 P.2d 370
[citing decisions]; People v. Cooper (1968) 268 Cal.App.2d 34, 36-37, 73
Cal.Rptr. 608 [same]; People v. Roth (1964) 228 Cal.App.2d 522, 528-529 & fn. 2,
39 Cal. Rptr. 582 [same].)

The purpose of the rule is prophylactic, specifically, to avoid the harm of "over-
conviction" and "over-acquittal." (See, e.g., People v. Barton (1995) 12 Cal.4th
186, 195, 47 Cal.Rptr.2d 569, 906 P.2d 531.) That is to say, it aims to prevent the
jury from finding the defendant guilty of a greater offense, even though he is guilty
only of a lesser one, out of a desire to keep him from going unpunished. (See, e.g.,
ibid.) At the same time, it aims to prevent the jury from finding the defendant not
guilty of a greater offense and letting him go unpunished, even though he is, in
fact, guilty of a lesser one. (See, e.g., ibid.)
By its very terms, however, the rule is limited. A trial court must instruct sua
sponte when, and only when, the lesser offense is necessarily included within the
greater charged offense. Two standards are applicable. (E.g., People v. Wolcott
(1983) 34 Cal.3d 92, 98, 192 Cal.Rptr. 748, 665 P.2d 520; People v. Wright (1996)
52 Cal.App.4th 203, 208, 59 Cal.Rptr.2d 316.) Under the socalled "legal elements"
test (People v. Wright, supra, 52 Cal.App.4th at p. 208, 59 Cal.Rptr.2d 316), the
lesser is necessarily included within the greater if, as a matter of law in view of
their respective statutory definitions, an actor cannot commit the greater without
necessarily committing the lesser (People v. Wolcott, supra, 34 Cal.3d at p. 98, 192
Cal.Rptr. 748, 665 P.2d 520; People v. Wright, supra, 52 Cal.App.4th at p. 208, 59
Cal.Rptr.2d 316). Under the so-called "accusatory pleading" test (People v. Wright,
supra, 52 Cal.App.4th at p. 208, 59 Cal.Rptr.2d 316), the lesser is necessarily
included within the greater if, as a matter of fact in view of the allegations
describing his conduct, an actor cannot commit the greater without necessarily
committing the lesser (People v. Wolcott, supra, 34 Cal.3d at p. 98, 192 Cal. Rptr.
748, 665 P.2d 520; People v. Wright, supra, 52 Cal.App.4th at p. 208, 59 Cal.
Rptr.2d 316).

Under neither the legal elements test nor the accusatory pleading test is the lesser
offense of manslaughter necessarily included within the greater charged offense of
murder.

Originally, murder was defined by statute as the "unlawful killing of a human

being, with malice aforethought." (Pen.Code, § 187 (1872).) For its part,
manslaughter was similarly defined as the "unlawful killing of a human being,
without malice." (Id., § 192 (1872).)

In 1970, murder was expanded in its statutory definition to include the "unlawful
killing of a human being, or a fetus, with malice aforethought." (Pen.Code, § 187,
subd. (a), as amended by Stats.1970, ch. 1311, § 1, p. 2440, italics added.)

Neither in that year nor thereafter was manslaughter expanded in its statutory
definition to include the unlawful killing of a fetus without malice aforethought.
Indeed, just months ago, we held that manslaughter excluded a fetus as a victim.
(People v. Dennis (1998) 17 Cal.4th 468, 505-506, 71 Cal.Rptr.2d 680, 950 P.2d
1035.)

Moreover, even though murder is statutorily defined as an unlawful killing with

malice aforethought and manslaughter is similarly defined as an unlawful killing
without malice aforethought, as currently understood (see, e.g., People v. Barton,
supra, 12 Cal.4th at pp. 199-201, 47 Cal.Rptr.2d 569, 906 P.2d 531), they are not
distinguished simply by their contradictory prepositions. True, it appears that
murder is marked by the presence of malice aforethought, and manslaughter by its
absence. But the "absence" of malice aforethought in manslaughter is not, strictly
speaking, the absence of malice aforethought but rather the presence of other,
extrinsic "circumstances" (id. at p. 199, 47 Cal.Rptr.2d 569, 906 P.2d 531),
specifically, for voluntary manslaughter, a sudden quarrel or heat of passion or
imperfect self-defense (ibid.; see maj. opn., ante, at p. 876 of 77 Cal.Rptr.2d, at p.
1100 of 960 P.2d; see generally, dis. opn. of Kennard, J., post, at pp. 899-901 of 77
Cal.Rptr.2d, at pp. 1122-1124 of 960 P.2d; 897*897 see also id. at p. 901, fn. 4 of
77 Cal. Rptr.2d, at p. 1124, fn. 4 of 960 P.2d [stating that "voluntary manslaughter
might be termed a lesser including offense of murder" (original italics)]).

Under the legal elements test, the lesser offense of manslaughter is not necessarily
included within the greater charged offense of murder. That is because, as a matter
of law in view of their respective statutory definitions, an actor can indeed commit
murder without necessarily committing manslaughter. Put otherwise: It is not the
case that an actor cannot commit murder without necessarily committing
manslaughter. Such a person can assuredly commit murder under circumstances
devoid of sudden quarrel or heat of passion or imperfect self-defense. He can also
do so against a fetus. If he commits murder under such circumstances or against
such a victim, it does not follow that he necessarily commits manslaughter. To the
contrary, it follows that he necessarily does not do so.

Likewise, under the accusatory pleading test, the lesser offense of manslaughter is
not necessarily included within the greater charged offense of murder. That is
because, as a matter of fact in view of the allegations describing his conduct, an
actor can indeed commit murder without necessarily committing manslaughter. In
pertinent part, the information filed below charged only that Breverman "did
willfully, unlawfully, and with malice aforethought murder ... Suryaatmadja, a
human being." It is not the case that an actor who so conducts himself cannot
commit murder without necessarily committing manslaughter. Quite the opposite.
Such a person commits murder under circumstances devoid of sudden quarrel or
heat of passion or imperfect self-defense. It follows that he necessarily does not
commit manslaughter. Contrary to the majority's implication (see maj. opn., ante,
at p. 876, fn. 5 of 77 Cal.Rptr.2d, at p. 1100, fn. 5 of 960 P.2d), it matters not that
his victim is identified as a human being rather than a fetus. To repeat: He commits
murder under circumstances devoid of sudden quarrel or heat of passion or
imperfect self-defense.
All this is not to deny that manslaughter, as currently understood, is a lesser
offense related to the greater charged offense of murder. But this very day, in
People v. Birks (1998) 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073, we hold
that a trial court need not instruct on lesser related offenses even at the defendant's
request, and indeed generally may not do so. If we are to qualify that holding, we
should do so deliberately. The majority do not even make an attempt.[1]

III

The majority then conclude that the superior court may have erred reversibly under
California law by failing to instruct the jury on voluntary manslaughter on a
sudden quarrel 898*898 or heat of passion in addition to voluntary manslaughter
via imperfect self-defense.

I disagree.

My first reason is this: The superior court did not err at all, reversibly or otherwise.

My second reason is different. It is suggested in the majority's analysis, but is not

developed therein. It follows.

In addressing the question of reversibility, we consider, as a general matter,

whether or not the error caused prejudice, which is simply a taint on the trial in the
form of an unfavorable effect on the outcome, meaning, in a jury trial, an
unfavorable effect on the verdict.

To consider prejudice, we first choose the appropriate standard — such as the

"harmless-beyond-a-reasonable-doubt" test (Chapman v. California (1967) 386
U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705), which generally applies to error
violative of the United States Constitution; the "reasonable-probability" test
(People v. Watson (1956) 46 Cal.2d 818, 836-837, 299 P.2d 243), which usually
covers error under California law; and the "reasonable-possibility" test (People v.
Brown (1988) 46 Cal.3d 432, 446-448, 250 Cal.Rptr. 604, 758 P.2d 1135), which
covers error under California law bearing on the penalty of death.

Having chosen the appropriate standard, we then ask the ultimate question of
prejudice itself, using, in effect, one of two verbal formulas. We sometimes inquire
— as do the majority at one point in their opinion (see maj. opn., ante, at p. 893 of
77 Cal.Rptr.2d, at p. 1117 of 960 P.2d) — whether, under the standard in question,
the error had an unfavorable effect on the outcome. (See, e.g., People v. Alvarez
(1996) 14 Cal.4th 155, 234, 58 Cal.Rptr.2d 385, 926 P.2d 365 [under reasonable-
possibility test]; People v. Marshall (1996) 13 Cal.4th 799, 851-852, 55 Cal.
Rptr.2d 347, 919 P.2d 1280 [under harmless-beyond-a-reasonable-doubt test];
People v. Gordon (1990) 50 Cal.3d 1223, 1253, 270 Cal. Rptr. 451, 792 P.2d 251
[under reasonable-probability standard]; cf. People v. Alvarez, supra, 14 Cal.4th at
pp. 239, 241, fn. 38, 58 Cal.Rptr.2d 385, 926 P.2d 365 [under reasonable-
probability standard for prejudice component of ineffective assistance of counsel
violative of United States Constitution, Amendment VI and California
Constitution, article I, section 15].) At other times, we inquire — as do the
majority at another point in their opinion (see maj. opn., ante, at pp. 893-894 of 77
Cal.Rptr.2d, at p. 1117 of 960 P.2d) — whether, under the standard in question, a
more favorable outcome would have resulted in the absence of the error. (See, e.g.,
People v. Bradford (1997) 14 Cal.4th 1005, 1061, 60 Cal.Rptr.2d 225, 929 P.2d
544 [under harmless-beyond-a-reasonable-doubt test]; People v. Jackson (1996) 13
Cal.4th 1164, 1211, 56 Cal.Rptr.2d 49, 920 P.2d 1254 [under reasonable-
probability test]; People v. Wader (1993) 5 Cal.4th 610, 666, 20 Cal.Rptr.2d 788,
854 P.2d 80 [under reasonable-possibility test]; cf. People v. Ledesma (1987) 43
Cal.3d 171, 217-218, 233 Cal.Rptr. 404, 729 P.2d 839 [under reasonable-
probability st andard for prejudice component of ineffective assistance of counsel
violative of United States Constitution, Amendment VI and California
Constitution, article I, section 15].)

Whether we use one or the other of the two verbal formulas is a matter of
rhetorical style and makes no substantial difference — so long as we focus on the
fact that prejudice is an unfavorable effect on the outcome. When we so focus, we
recognize a truth that is deceptively simple: Reversal is required if the error caused
prejudice, that is, an unfavorable effect on the outcome. Reversal, however, is not
required merely if the absence of error would have resulted in a more favorable
outcome. In the former situation, there is a taint on the trial. In the latter, there is
not.

Turning to the case at bar, I believe that, even if the superior court had erred by
failing to instruct on voluntary manslaughter on a sudden quarrel or heat of passion
in addition to voluntary manslaughter via imperfect self-defense, its "error" could
not have been reversible. The "error" could not have caused prejudice. That is
because it could not have caused an unfavorable effect 899*899 on the verdict. It
could only have affected a verdict finding Breverman guilty of voluntary
manslaughter — which was not returned by the jury. It could not have affected the
verdict finding him guilty of second degree murder — which was.
As I have explained, the purpose of the rule requiring a trial court to instruct sua
sponte on a lesser offense necessarily included within a greater charged offense is
to avoid the harm of "over-conviction" and "over-acquittal." Even if the rule had
been applicable here, its purpose would not have been frustrated. Breverman was
obviously not "over-acquitted" by the jury. Indeed, he was not acquitted by it at all.
Neither was he "over-convicted." Certainly, the evidence of second degree murder
was more than sufficient to support its verdict under the due process clauses of the
Fourteenth Amendment to the United States Constitution and article I, section 15
of the California Constitution. Viewing the evidence in the light most favorable to
the People, a rational jury could surely have found all that it had to find beyond a
reasonable doubt, namely, that Breverman unlawfully killed Suryaatmadja with
malice aforethought. (See, e.g., People v. Rowland (1992) 4 Cal.4th 238, 269, 14
Cal.Rptr.2d 377, 841 P.2d 897.)

In sum, and unlike the majority (see maj. opn., ante, at p. 893, fn. 25 of 77
Cal.Rptr.2d, at p. 1117, fn. 25 of 960 P.2d), I am compelled to conclude that the
jury's verdict finding Breverman guilty of second degree murder — a verdict that
was returned after an untainted trial, and that was supported by more than
sufficient evidence — did not, and could not, amount to, or reflect, a "miscarriage
of justice," either under article VI, section 13 of the California Constitution or
otherwise.[2]

IV

For the reasons stated above, I would reverse the judgment of the Court of Appeal
and remand the cause to that court without directions to reconsider the question of
reversibility.

KENNARD, Justice, dissenting.

In California, murder is defined as "the unlawful killing of a human being, ... with
malice aforethought." (Pen.Code, § 187.) One who intentionally kills in the "heat
of passion," however, lacks malice and is guilty not of murder, but of voluntary
manslaughter. (Pen.Code, § 192.)

In this case, defendant was charged with murder. At trial, the jury heard evidence
tending to show that defendant intentionally killed the victim in the heat of
passion. This evidence, if credited by the jury, was sufficient to support a verdict of
voluntary manslaughter. The trial court, however, did not instruct the jury that one
who kills in the heat of passion lacks malice and is therefore not guilty of murder.
The jury convicted defendant of murder.
I agree with the majority that, as a matter of state law, the trial court should have
instructed the jury that an intentional killing in the heat of passion is not murder
but voluntary manslaughter. I disagree, however, with the majority's conclusion
that the trial court's failure to so instruct was not federal constitutional error as
well. In my view, when a defendant is charged with murder and there is sufficient
evidence to support a conviction for voluntary manslaughter on a "heat of passion"
theory, failure to instruct on that theory violates the defendant's federal
constitutional rights to a jury trial and to 900*900 due process of law. This
conclusion rests on the unique relationship between murder and voluntary
manslaughter, a relationship in which voluntary manslaughter includes all the
elemental facts necessary to support a conviction for murder plus the additional
elemental fact of heat of passion.

A group of young men shouting insults and threats approached defendant in his
driveway one night. Defendant retreated inside his house and the men attacked
defendant's car with sticks and metal rods. Fearing for his safety, defendant got a
gun and fired several shots through the door. The group began to flee. Defendant
came outside and continued firing at the fleeing group, shooting and killing one of
them.

Defendant was charged with murder.[1] The jury was instructed that murder
required aforethought; it was not instructed that a killing done in the heat of
passion lacks malice, making the killing only voluntary manslaughter, not murder.

The Court of Appeal reversed defendant's conviction. It held that the trial court's
failure to instruct on its own initiative on voluntary manslaughter by reason of heat
of passion was reversible error under state law.

II

I begin my analysis with a description of the unique relationship between murder

and voluntary manslaughter, followed by an analysis of the federal constitutional
consequences of that relationship.

Murder is defined by statute as an "unlawful killing" with "malice aforethought."

(Pen. Code, § 187, subd. (a).)[2] Voluntary manslaughter, on the other hand, is an
"unlawful killing" "without malice" and "upon a sudden quarrel or heat of
passion"[3] (§ 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."
(§ 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.)

When an unlawful killing that would otherwise be a murder is done in the heat of
passion, malice is absent and the killing is only a voluntary manslaughter. To
establish the absence of malice, however, it is not necessary to prove the absence
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. Although the
absence of malice may be shown in this way, it may also be shown by proving an
additional elemental fact: that the defendant, even though intending to kill, acted in
the heat of passion. "[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 901*901 manslaughter. (People v. Saille, supra,
54 Cal.3d at p. 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.

Thus, as a functional matter, the elemental facts proving the crime with the greater
punishment—murder—are a subset of the elemental facts of the crime with the
lesser punishment—voluntary manslaughter. Proof of the elemental facts of the
crime of murder plus proof of an additional elemental fact (heat of passion)
establishes the crime of voluntary manslaughter.

The relationship between murder and voluntary manslaughter is unlike the

relationship between the typical greater offense and lesser included offense, in
which the elemental facts of the greater offense encompass all of the elemental
facts of the lesser offense. Here, the relationship is reversed, and the elemental
facts of the lesser crime of voluntary manslaughter encompass the elemental facts
of greater crime of murder.[4]

What are the federal constitutional consequences of this unique relationship

between murder and voluntary manslaughter?

The federal Constitution guarantees a defendant the right to have the jury decide
the existence of all of the elements of the offense of which he is convicted. As I
recently explained: "The Sixth Amendment to the federal 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.' (United States v.
Gaudin (1995) 515 U.S. 506, 522-523, 115 S.Ct. 2310, 132 L.Ed.2d 444.) The
jury's `constitutional responsibility,' the high court said in Gaudin, includes
applying the law to the facts to determine the existence of each element of the
crime—'that is, [the] "ultimate" or "elemental" fact[s]' needed to convict. (Id. at pp.
514-515, 115 S.Ct. 2310.)" (People v. Flood (1998) 18 Cal.4th 470, 548, 76
Cal.Rptr.2d 180, 957 P.2d 869 (dis. opn. of Kennard, J.); see also id. at p. 491, 76
Cal.Rptr.2d 180, 957 P.2d 869 (maj.opn.).)

In order to make a finding on each elemental fact needed to convict, the jury must
of course be fully instructed on the elements of the crime. For that reason,
instructions that omit or misdescribe an element of the offense, preventing the jury
from making a necessary factual finding, are constitutionally defective. (People v.
Flood, supra, 18 Cal.4th 470, 491, 76 Cal.Rptr.2d 180, 957 P.2d 869 ["The
prohibition against directed verdicts for the prosecution extends to instructions that
effectively prevent the jury from finding that the prosecution failed to prove a
particular element of the crime beyond a reasonable doubt."].) 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. Where, as here, there is sufficient
evidence of heat of passion to support a voluntary manslaughter verdict, murder
instructions that fail to inform the jury it may not find the defendant guilty of
murder if heat of passion is present are incomplete instructions on the element of
malice.[5]

The United States Supreme Court's decision in Mullaney v. Wilbur (1975) 421 U.S.
684, 95 S.Ct. 1881, 44 L.Ed.2d 508 supports this conclusion. At issue there was
Maine's law of murder and manslaughter, which like California's, defined murder
as an unlawful killing with malice aforethought, defined malice as an intentional
killing in the absence of provocation, and defined manslaughter as an intentional
killing without malice. (Id. at pp. 684-687, 696-698, 703, 95 S.Ct. 1881.) As in
902*902 California, murder and manslaughter in Maine were composed of
common elemental facts (id. at p. 685, 95 S.Ct. 1881) except for manslaughter's
additional elemental fact of "heat of passion on sudden provocation" (id. at p. 703,
95 S.Ct. 1881). One requirement of due process is that the state has the burden of
proving beyond a reasonable doubt every elemental fact necessary to establish the
offense. (Id. at p. 685, 95 S.Ct. 1881.) Maine, however, sought to put upon the
defendant the burden of proving the presence of heat of passion. Declaring that
what mattered was "substance rather than ... formalism" (id. at p. 699, 95 S.Ct.
1881), the high court concluded that, given the relationship Maine had structured
between murder and manslaughter, due process required the state to treat the
absence of heat of passion as part of the definition of murder and to assume the
burden of proving that the defendant did not act in the heat of passion, just as the
state must prove every other element of the crime. (Id. at pp. 698, 704, 95 S.Ct.
1881.) Similarly, here the absence of heat of passion must be treated as part of the
definition of murder for jury instruction purposes.

Another avenue of federal constitutional analysis also leads to this conclusion. Due
process requires fundamental fairness in the criminal procedures by which a
defendant is convicted of a crime. (United States v. Valenzuela-Bernal (1982) 458
U.S. 858, 872, 102 S.Ct. 3440, 73 L.Ed.2d 1193 ["Due process guarantees that a
criminal defendant will be treated with `that fundamental fairness essential to the
very concept of justice.'"]; Spencer v. Texas (1967) 385 U.S. 554, 563-564, 87
S.Ct. 648, 17 L.Ed.2d 606 ["the Due Process Clause guarantees the fundamental
elements of fairness in a criminal trial"]; People v. Quartermain (1997) 16 Cal.4th
600, 618, 66 Cal.Rptr.2d 609, 941 P.2d 788.) In particular, due process "ensure[s]
fundamental fairness in the determination of guilt at trial." (Albright v. Oliver
(1994) 510 U.S. 266, 283, 114 S.Ct. 807, 127 L.Ed.2d 114 (cone. opn. of Kennedy,
J.).)

As I have noted above, the relationship between murder and voluntary

manslaughter is unique. The presence of heat of passion is consistent with the
mental state and other facts that would support a murder verdict, but nonetheless
heat of passion precludes a murder verdict. If a state has chosen to structure its
crimes in this fashion, such that if the jury finds facts X plus Y it is a different
crime with a greater punishment than if the jury finds facts X plus Y plus Z, it is
fundamentally unfair (at least when there is evidence of Z in the record) not to
inform the jury that if Z is present it may not convict the defendant of the greater
crime. That is, the state cannot omit an instruction on voluntary manslaughter and
thereby prevent the jury from determining the additional circumstance of heat of
passion that would make the defendant factually innocent of murder; the defendant
has a right to have the jury decide whether that additional circumstance, which is
entirely consistent with the facts necessary to convict the defendant of murder, is
present.

To omit the instruction creates the very real possibility that the defendant will be
convicted of an offense of which, in the jury's view, he is factually innocent under
the evidence presented at trial, and it is hard to imagine anything more
fundamentally unfair than that. It is manifestly unjust to permit the state to use the
jury's ignorance of the elements of voluntary manslaughter to convict a defendant
of murder when the jury, had it known of voluntary manslaughter, could have
found the additional circumstance of heat of passion that would have instead made
the defendant liable only for that lesser crime. Such a procedure fails to ensure
fundamental fairness in the determination of guilt at trial. The crucial consideration
is that the presence of heat of passion is an additional circumstance, consistent with
the elemental facts required to support a murder verdict, that not only establishes
liability for voluntary manslaughter but precludes liability for murder.

III

Before analyzing whether the federal constitutional error in failing to instruct the
jury 903*903 that a killing lacks malice when it occurs in the heat of passion was
harmless in this case, I address the majority's conclusion that the issue has not been
raised by the parties. (Maj. opn., ante, at p. 887, fn. 19 of 77 Cal.Rptr.2d, at p.
1111, fn. 19 of 960 P.2d.) The majority is mistaken. In their opening brief, the
People, who are the petitioners here, correctly recognized that the issue is before
this court and addressed it at length. Over the course of 20 pages they discussed the
possibility that we would conclude the error here was the misdescription of an
element of the offense of murder. They acknowledged in the following words that
if the error here amounted to a misdescription of the elements of murder, it would
be a federal constitutional error subject to harmless error analysis under Chapman
v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705: "Where the
omission of an instruction on an applicable lesser included offense results in
misinstruction on an element of greater conviction offense, the standard of
harmless error pronounced in Chapman v. California should apply." "[I]f this
Court determines that there was error in this case which resulted in the
misinstruction on an element of the greater substantive offense, respondent submits
this Court should address what harmless error standard applies where the omitted
lesser included offense instructions do not modify the elements of the substantive
offense for which the defendant was convicted." The People further argued that,
even if the trial court's failure to instruct the jury that a killing in the heat of
passion lacks malice and is only voluntary manslaughter amounts to a
misdescription of an element of murder that is subject to federal constitutional
harmless error review, this conclusion should not carry over to run-of-the-mill
failures to instruct on lesser included offenses for crimes other than murder and
manslaughter. In the People's words: "Even if this Court concludes that, in this
case, the trial court's omission of instructions on the heat of passion theory of
voluntary manslaughter resulted in the misinstruction on the element of malice for
second degree murder, such a finding would not necessarily apply in other lesser
included offense contexts."

Defendant addressed this issue in his answering brief. He asserted that the failure
to instruct the jury that a killing in the heat of passion lacks malice and is at most
voluntary manslaughter violated his federal constitutional rights to due process and
to a jury trial "and the requirement that prosecution prove each fact necessary to
constitute the crime charged beyond a reasonable doubt (Fourteenth Amendment
[to the federal Constitution])." Defendant specifically relied on United States v.
Gaudin (1995) 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444, a case
underpinning my analysis above. He stated: "The Fifth and Sixth Amendment
guarantee a jury trial and proof beyond a reasonable doubt as to each element of a
criminal offense.... Reversal is therefore compelled where there is a failure to
instruct on any component element of a crime." He continued: "In this case, the
failure to instruct on heat of passion manslaughter effectively omitted an element
of the offense and removed the issue of provocation negating malice from the
jury."[6] It is hard to imagine a more succinct statement of the issue. Defendant
904*904 then correctly explained that under controlling United States Supreme
Court precedent (which I discuss and rely on below) the failure to completely
instruct on the elements of the offense of which defendant is convicted cannot be
cured by subsequent factfinding by a judge rather than a jury: "The United States
Supreme Court is clear that a verdict rendered in the absence of jury instructions
and findings regarding the component elements of the charge is irremediably
defective because [a] post-verdict factfinder attempting to correct the deficiency
would be `the wrong entity.'"

Nor is it surprising that neither party raised the issue in the Court of Appeal. At
that stage, the case was controlled by the well-established state law precedent of
People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal. Rptr. 1, 518 P.2d 913 and its
progeny. It would be pointless to require that a party entitled to prevail under
settled state law announced long ago by this court must present to the Court of
Appeal every conceivable alternative federal constitutional ground in support of its
position on the purely hypothetical possibility that we will later grant the opposing
party's petition to review the case, discard our settled precedent, and rule against
the prevailing party on the state law question. To do so would impose a
purposeless burden on both the parties and the Courts of Appeal, for the Court of
Appeal in such a case would, after wasting its time reading those arguments,
invariably ignore them in adhering to and applying the settled law of this court. For
a similar reason, the People in this case did not raise in the Court of Appeal the
issue the majority decides— whether the standard of harmless error review this
court announced in Sedeno should be changed. To do so would have been equally
pointless, given the Court of Appeal's inevitable adherence to Sedeno.

We have never required perfection in briefing as the price of recognizing a

defendant's constitutional rights. Defendant, the responding party in this court
defending a favorable judgment by the Court of Appeal decided solely on state law
grounds, more than adequately raised the issue of whether failing to instruct on
heat of passion was federal constitutional error resulting in incomplete instructions
on the elements of murder. Even though the majority remands the case for further
proceedings, it remains a grave injustice for this court to refuse to recognize
defendant's claim and deny him his constitutional rights.

IV

Having concluded that the failure to give instructions on heat of passion was
federal constitutional error, I now turn to the question of whether the error was
harmless. Instructions omitting or misdescribing an element of an offense are
subject to harmless error analysis under the test of Chapman v. California, supra,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, as applied in Sullivan v. Louisiana
(1993) 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182. (People v. Flood, supra, 18
Cal.4th 470, 503-507, 76 Cal. Rptr.2d 180, 957 P.2d 869; accord, id. at p. 548, 76
Cal.Rptr.2d 180, 957 P.2d 869 (dis. opn. of Kennard, J.).) The essential inquiry "is
not whether, in a trial that occurred without the error, a guilty verdict would surely
have been rendered, but whether the guilty verdict actually rendered in this trial
was surely unattributable to the error." (Sullivan v. Louisiana, supra, 508 U.S. 275,
279, 113 S.Ct. 2078, 124 L.Ed.2d 182, original italics.)

The three most common circumstances in which it may be concluded that the
verdict is "surely unattributable to the error" are (1) when the jury has necessarily
resolved the omitted factual question under other properly given instructions, (2)
when some factual finding the jury has made is the functional equivalent of a
finding on the omitted factual question (because no rational jury could find the fact
actually found without also finding the omitted fact), and (3) when the defendant
admitted or affirmatively conceded the omitted factual question. (People v. Flood,
supra, 18 Cal.4th 470, 504-507, 76 Cal.Rptr.2d 180, 957 P.2d 869; id. at pp. 548,
550-554, 76 905*905 Cal.Rptr.2d 180, 957 P.2d 869 (dis. opn. of Kennard, J.).)
None of these circumstances are present here. The jury did not resolve the question
of whether defendant acted in the heat of passion under any of the instructions
given, nor did the jury decide any question that was the functional equivalent of
deciding whether defendant acted under the heat of passion. Defendant did not
admit or affirmatively concede that he had not acted in the heat of passion.

The omission of an instruction on voluntary manslaughter by reason of heat of

passion was not harmless, and defendant's conviction is therefore
unconstitutional.[7]

CONCLUSION

In this case, the jury that found defendant guilty of murder was never asked to
determine whether defendant had acted in the heat of passion and therefore lacked
malice and was not guilty of murder but only of voluntary manslaughter. There
was sufficient evidence to support the conclusion that defendant had acted in the
heat of passion. Accordingly, I would affirm the judgment of the Court of Appeal
reversing defendant's conviction.

BROWN, Justice, dissenting.

The majority, concluding that the trial court erred in failing to instruct sua sponte
on voluntary manslaughter on a heat of passion theory, directs the Court of Appeal
to reconsider the prejudicial impact of that error. In my view, the trial court did not
err at all, reversibly or otherwise. Therefore, I respectfully dissent.

The majority cites People v. Sedeno (1974) 10 Cal.3d 703, 715-716, 112 Cal.Rptr.
1, 518 P.2d 913 (Sedeno), for the proposition that trial courts have a "sua sponte
duty to instruct on lesser necessarily included offenses." (Maj. opn., ante, at p. 872
of 77 Cal.Rptr.2d, at p. 1096 of 960 P.2d.) Following today's decision, a proper
citation to Sedeno for this seemingly straightforward proposition will read as
follows: Sedeno, supra, 10 Cal.3d at pages 715-716, 112 Cal.Rptr. 1, 518 P.2d 913,
overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685,
footnote 12, 160 Cal.Rptr. 84, 603 P.2d 1 (abrogating Sedeno's requirement that
jury instructions must be given whenever any evidence is presented, no matter how
weak) and overruled on other grounds in People v. Breverman (1998) 19 Cal.4th
142, 163, footnote 10, 77 Cal.Rptr.2d 870, 882, footnote 10, 960 P.2d 1094, 1106,
footnote 10 (abrogating Sedeno's characterization of heat of passion as a defense)
and overruled on other grounds in People v. Breverman, supra, 19 Cal.4th at pages
164-178, 77 Cal.Rptr.2d at pages 883-893, 960 P.2d at pages 1107-1117
(abrogating Sedeno's standard for determining whether the failure to instruct is
prejudicial).[1]

This ought to be our first clue.

The time is long overdue for a critical reexamination of the court's lesser offense
jurisprudence. Today, we have commenced this important task, unanimously
overruling People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d
1303, which addressed lesser related offenses. (See People v. Birks (1998) 19
Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) I applaud that decision. I write
separately in this case to urge a similar reexamination for lesser included offenses.

906*906 II

Throughout its opinion, the majority clings to what little is left of Sedeno —
namely, its requirement that trial courts must instruct sua sponte on lesser included
offenses supported by the evidence. While freely admitting that "[s]everal of the
People's arguments... attack the heart of the Sedeno rule in all its applications"
(maj. opn., ante, at p. 882, fn. 9 of 77 Cal.Rptr.2d, at p. 1105, fn. 9 of 960 P.2d)
and that "several of their arguments imply a general distaste for the sua sponte
instructional rule for lesser included offenses" (id. at pp. 877-878, fn. 6 of 77 Cal.
Rptr.2d, at pp. 1101-1102, fn. 6 of 960 P.2d), the majority steadfastly resists any
serious examination of Sedeno's core analytical underpinnings. Instead, the
majority repeatedly seeks refuge in the fact the People have made no contention
"that the California rule requiring sua sponte instructions on lesser necessarily
included offenses should be entirely abrogated in favor of a rule requiring such
instructions only on a party's request." (Maj. opn., ante, at p. 877, fn. 6 of 77 Cal.
Rptr.2d, at p. 1101, fn. 6 of 960 P.2d; see also id. at p. 882, fn. 9 of 77 Cal.Rptr.2d,
at pp. 1105-1106, fn. 9 of 960 P.2d ["Of course, as we have previously indicated,
the People do not ask that we overrule Sedeno per se."]; id. at p. 887, fn. 17 of 77
Cal.Rptr.2d, at p. 1111, fn. 17 of 960 P.2d ["Finally, we stress again that in this
case, the People raise no general objection to the Sedeno instructional rule,
including its sua sponte aspect."].)
As a court of last resort, a court whose role is to provide guidance and workable
procedures for our lower courts, we cannot simply cloak ourselves in the doctrine
of stare decisis. That doctrine is "`"a flexible one which permits this court to
reconsider, and ultimately to depart from, our own prior precedent in an
appropriate case."'" (People v. Birks, supra, 19 Cal.4th at p. 117, 77 Cal.Rptr.2d
848, 960 P.2d 1073.) "`"It ... `is based on the assumption that certainty,
predictability and stability in the law are the major objectives of the legal
system....' ""`(Ibid.) As the "full" citation to Sedeno amply demonstrates (see ante,
at pp. 905-906 of 77 Cal.Rptr.2d, at pp. 1128-1129 of 960 P.2d), these adjectives
scarcely describe our lesser included offense jurisprudence, which has been
plagued by uncertainty, unpredictability, and instability. "`"`[A]lthough the
doctrine [of stare decisis] does indeed serve important values, it nevertheless
should not shield court-created error from correction.'"' [Citation.]" (People v.
Birks, supra, 19 Cal.4th at p. 117, 77 Cal. Rptr.2d 848, 960 P.2d 1073.) This is
particularly true where, as here, the error is one of constitutional interpretation, as
to which "only we can remedy the mistake. [Citations.]" (Ibid.)

As I explain below, Sedeno's sua sponte instruction rule finds no basis whatsoever
in our state Constitution. Nor do the "broader interests" identified by the majority
(maj. opn., ante, at p. 877 of 77 Cal.Rptr.2d, at p. 1101 of 960 P.2d) warrant its
retention. To the contrary, the rule runs counter to the very premises underlying
our system of criminal justice. Under these circumstances, we have an obligation
to rethink the requirement.[2]

III

In a single sentence, quoting language found in some of our prior decisions, the
majority tepidly observes that "[c]ases have 907*907 suggested that the
requirement of sua sponte instructions arises, among other things, from the
defendant's right under the California Constitution to have the jury determine every
material issue presented by the evidence.'" (Maj. opn., ante, at p. 877 of 77
Cal.Rptr.2d, at p. 1101 of 960 P.2d, citing People v. Geiger, supra, 35 Cal.3d at p.
519, 199 Cal.Rptr. 45, 674 P.2d 1303; People v. Wickersham (1982) 32 Cal.3d
307, 335, 185 Cal.Rptr. 436, 650 P.2d 311; Sedeno, supra, 10 Cal.3d at p. 720, 112
Cal.Rptr. 1, 518 P.2d 913; People v. Modesto, supra, 59 Cal.2d at p. 730, 31
Cal.Rptr. 225, 382 P.2d 33.) Significantly, all four cases cited by the majority are
cases this court has largely repudiated. The lesser related offense instruction rule
established in Geiger, supra, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, was
overruled in People v. Birks, supra, 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d
1073. The characterization of unreasonable self-defense as a defense in People v.
Wickersham, supra, 32 Cal.3d at p. 329, 185 Cal.Rptr. 436, 650 P.2d 311, was
overruled in People v. Barton (1995) 12 Cal.4th 186, 200-201, 47 Cal. Rptr.2d
569, 906 P.2d 531. This court has overruled Sedeno, supra, 10 Cal.3d 703, 112
Cal.Rptr. 1, 518 P.2d 913, on three different points. (See ante, at pp. 905-906 of 77
Cal. Rptr.2d, at pp. 1128-1129 of 960 P.2d.) And the standard for reversal
established in People v. Modesto, supra, 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d
33, was overruled in Sedeno, supra, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913.
(See ante, at p. 905, fn. 1 of 77 Cal.Rptr.2d, at p. 1128, fn. 1 of 960 P.2d.)

Exactly where in our state Constitution the so-called "right" to sua sponte
instructions on lesser included offenses is to be found is unclear. In fact, as the
majority later acknowledges (see maj. opn., ante, at pp. 884-885 of 77 Cal.Rptr.2d,
at pp. 1108-1109 of 960 P.2d), the analyses in Sedeno and Modesto are so cursory
that it is not even clear whether we were relying on state or federal constitutional
principles; the same is true of Wickersham The fourth case cited by the majority,
People v. Geiger, supra, 35 Cal.3d at page 519, 199 Cal.Rptr. 45, 674 P.2d 1303,
cryptically describes the right as "an incident of due process under the California
Constitution." Once again, however, exactly what it is about our state
Constitution's due process clause that requires sua sponte instructions on lesser
included offenses remains a mystery.

As the majority grudgingly concedes in a footnote (maj. opn., ante, at 887, fn. 17
of 77 Cal.Rptr.2d, at p. 1110, fn. 17 of 960 P.2d), "[a]s early as 1938, we stated
that `cogent reasons must exist before a state court in construing a provision of the
state Constitution will depart from the construction placed by the Supreme Court
of the United States on a similar provision in the federal Constitution.' [Citations.]"
(Raven v. Deukmejian (1990) 52 Cal.3d 336, 353, 276 Cal.Rptr. 326, 801 P.2d
1077; see also American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307,
424-427, 66 Cal.Rptr.2d 210, 940 P.2d 797 (dis. opn. of Brown, J.).) The United
States Supreme Court's decisions "leave substantial doubt that the federal
Constitution confers any right to lesser included offense instructions in noncapital
cases. They provide no basis whatever for a conclusion that the federal charter
would require such instructions... ow the court's own motion." (Maj. opn., ante, at
p. 886 of 77 Cal.Rptr.2d, at p. 1109 of 960 P.2d, original italics; see also Kubat v.
Thieret (7th Cir.1989) 867 F.2d 351, 365-366 ["No federal court has imposed on
trial judges a duty to sua sponte instruct on lesser included offenses, and we agree
with the district court that the wisdom of such a rule would be questionable."].)

The only "`cogent reason[ ]'" offered by the majority for departing from the United
States Supreme Court's decisions is its bald assertion that "the reasons for the long-
established California approach to instructions on lesser included offenses ... as a
matter of state constitutional law ... have been set forth at length in our
decisions."[3] (Maj. 908*908 opn., ante, at p. 887, fn. 17 of 77 Cal.Rptr.2d, at p.
1111, fn. 17 of 960 P.2d.) Where? I have searched high and low for such an
explanation. I challenge the majority to point to exactly where it can be found.

In reality, it does not exist. The lesser included offense instruction rule is a creature
of statutory, not constitutional law. Specifically, it is a court-created procedure
designed to implement Penal Code section 1159 (section 1159), a statute the
majority relegates to a footnote. (Maj. opn., ante, at p. 884, fn. 13 of 77
Cal.Rptr.2d, at p. 1108, fn. 13 of 960 P.2d.) Section 1159, enacted in 1872,
provides that "[t]he jury ... may find the defendant guilty of any offense, the
commission of which is necessarily included in that with which he is charged, or of
an attempt to commit the offense." Section 1159, in turn, was based on an even
earlier law, which provided for such instructions on the request of either party.
(See Stats. 1850, ch. 119, § 392, p. 303; id., § 456, p. 308.) Early decisions of this
court interpreting section 1159 consistently held that "a judgment will not be
reversed because the trial court had not instructed as to a lesser crime included in
the greater one charged, unless the defendant had requested that the jury be so
instructed." (People v. Bailey (1904) 142 Cal. 434, 435, 76 P. 49, italics added,
citing People v. Wilson (1902) 135 Cal. 331, 67 P. 322; People v. Hite (1901) 135
Cal. 76, 67 P. 57; People v. Barney (1896) 114 Cal. 554, 47 P. 41; People v.
McNutt (1892) 93 Cal. 658, 29 P. 243; People v. Guidice (1887) 73 Cal. 226, 15 P.
44; People v. Franklin (1886) 70 Cal. 641, 11 P. 797.)

In 1969, in a case that did not cite section 1159 and contained no constitutional
analysis whatsoever, this court summarily overturned this extensive body of case
law. The sum total of our analysis was as follows: "[T]he cases establishing this
general rule [i.e., the duty to instruct on general principles of law relevant to the
issues raised by the evidence] are in conflict with another line of cases that hold
that it is not error for the court to fail to instruct on lesser included offenses on its
own motion, even though such an instruction would be supported by the evidence.
(People v. Bailey (1904) 142 Cal. 434 [76 P. 49]; People v. Hite (1901) 135 Cal. 76
[67 P. 57]; People v. Franklin (1886) 70 Cal. 641 [11 P. 797]; People v. Smith
(1963) 223 Cal.App.2d 225, 237 [35 Cal.Rptr. 719]; People v. Calderon (1957)
155 Cal.App.2d 526, 530 [318 P.2d 498]; People v. Williams (1956) 141 Cal.
App.2d 849, 853 [297 P.2d 759].) We believe that there is no basis for such an
exception to the general rule. Accordingly, to the extent that the foregoing cases
support a special rule for lesser included offenses, they are overruled." (People v.
Hood (1969) 1 Cal.3d 444, 449-450, 82 Cal.Rptr. 618, 462 P.2d 370; see also dis.
opn. of Mosk, J., ante, at p. 894 of 77 Cal.Rptr.2d, at p. 1118 of 960 P.2d ["It was
only relatively recently that we adopted the rule that a trial court must instruct the
jury sua sponte on a lesser offense necessarily included within a greater charged
offense. [Citation.] Traditionally, a court was not required to give such an
instruction. [Citations.]"].)

And so, through the auspices of judicial alchemy, our "constitutional" right to sua
sponte instructions on lesser included offenses was born. And, through similar
offices, the majority concludes it ought to be continued. I don't think so.

IV

Apparently recognizing the vacuity of our prior case law on the constitutional
issue, the majority hastens to add that "we have consistently stressed the broader
interests served by the sua sponte instructional rule. As we have said, insofar as the
duty to instruct applies regardless of the parties' requests or objections, it prevents
the `strategy, ignorance, 909*909 or mistakes' of either party from presenting the
jury with an `unwarranted all-or-nothing choice,' encourages `a verdict ... no
harsher or more lenient than the evidence merits' (Wickersham, supra, 32 Cal.3d at
p. 324, 185 Cal.Rptr. 436, 650 P.2d 311, italics added), and thus protects the jury's
`truth-ascertainment function' (Barton, supra, 12 Cal.4th 186, 196, 47 Cal.Rptr.2d
569, 906 P.2d 531). `These policies reflect concern [not only] for the rights of
persons accused of crimes [but also] for the overall administration of justice.'
(Wickersham, supra, 32 Cal.3d at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311.)" (Maj.
opn., ante, at p. 877 of 77 Cal.Rptr.2d, at p. 1101 of 960 P.2d.)

This sounds nice. But what does it mean? It means we fundamentally distrust the
adversary process. Such distrust runs counter to "[t]he very premise of our
adversary system of criminal justice[, which] is that partisan advocacy on both
sides of a case will best promote the ultimate objective that the guilty be convicted
and the innocent go free." (Herring v. New York (1975) 422 U.S. 853, 862, 95
S.Ct. 2550, 45 L.Ed.2d 593; see also In re Visciotti (1996) 14 Cal.4th 325, 363, 58
Cal.Rptr.2d 801, 926 P.2d 987 (dis. opn. of Brown, J.).) "In other words, `The
system assumes that adversarial testing will ultimately advance the public interest
in truth and fairness.'" (People v. Bloom (1989) 48 Cal.3d 1194, 1236-1237, 259
Cal.Rptr. 669, 774 P.2d 698 (cone, and dis. opn. of Mosk, J.), quoting Polk County
v. Dodson (1981) 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509, italics added.)
Absent concrete evidence that the adversary process in a given case has, in fact,
broken down (see, e.g., In re Visciotti supra, 14 Cal.4th at pp. 362-366, 58
Cal.Rptr.2d 801, 926 P.2d 987 (dis. opn. of Brown, J.)), I decline to indulge in the
majority's across-the-board assumption to the contrary.

It is worth noting that at the time our prior cases first articulated the sua sponte
instruction rule, there was more of a reason to question the efficacy of the
adversary process because the performance of criminal defense counsel was not
subjected to the same level of scrutiny as it is today. (See People v. Ibarra (1963)
60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487 [To obtain relief based on
ineffective assistance of counsel "[i]t must appear that counsel's lack of diligence
or competence reduced the trial to a `farce or a sham.' [Citations.]"], overruled in
People v. Pope (1979) 23 Cal.3d 412, 421-26, 152 Cal.Rptr. 732, 590 P.2d 859.)
Now, with heightened scrutiny of defense counsel's performance, both on direct
appeal and in habeas corpus proceedings, there is no need for a sua sponte
instruction rule to guard against attorney error. Indeed, to continue the requirement
serves only to turn our courts into the very "`gambling halls'" it was designed to
close down. (People v. Barton, supra, 12 Cal.4th at p. 204, 47 Cal.Rptr.2d 569,
906 P.2d 531.) For example, as the People observe, the rule allows a defendant to
pursue his strongest line of defense, remain silent about other, potentially
inconsistent, defenses supported by the evidence, and then, if unsuccessful on the
primary defense, to complain for the first time on appeal. (See People v. Guiuan
(1998) 18 Cal.4th 558, 578, 76 Cal.Rptr.2d 239, 957 P.2d 928 (cone, and dis. opn.
of Brown, J.), quoting People v. Prettyman (1996) 14 Cal.4th 248, 293, 58 Cal.
Rptr.2d 827, 926 P.2d 1013 (cone, and dis. opn. of Brown, J.) [Generally, sua
sponte instructions "do[ ] little to improve the quest for justice in the trial courts
while frequently generating an argument for reversal on appeal. [Citation.]"]; cf.
Cowan v. Superior Court (1996) 14 Cal.4th 367, 392, 58 Cal. Rptr.2d 458, 926
P.2d 438 (cone, and dis. opn. of Brown, J.) [permitting a defendant to raise a
statute of limitations defense for the first time on appeal "encourage[s]
gamesmanship"].) The problem has only been exacerbated by the recent
proliferation of lesser offenses and the attendant difficulties in determining what
constitutes an "included" offense. (See dis. opn. of Mosk, J., ante, at pp. 895-897
of 77 Cal.Rptr.2d, at pp. 1118-1122 of 960 P.2d [arguing that manslaughter is a
lesser related, not a lesser included, offense of murder]; but see People v. Watson
(1983) 150 Cal.App.3d 313, 321, 198 Cal.Rptr. 26 [chronicling the "firmly
established" treatment 910*910 of manslaughter as a lesser included offense of
murder].)

Trusting, as I do, our adversary system of criminal justice, I would adopt the
federal rule governing instructions on lesser included offenses, which is well
summarized in Walker v. United States (D.C.Cir.1969) 418 F.2d 1116. "In general
the trial judge should withhold charging on [a] lesser included offense unless one
of the parties requests it, since that charge is not inevitably required in our trials,
but is an issue best resolved, in our adversary system, by permitting counsel to
decide on tactics. If counsel ask for a lesser-included-offense instruction, it should
be freely given. [Citation.] If it is not requested the trial judge, and certainly should
not be initiated by the judge after summations are completed, except possibly in an
extreme case." (Id. at p. 1119, fn. omitted.) Such a rule is consistent with this
court's early — and, in my view, correct — treatment of the issue. (See ante, at pp.
907-908 of 77 Cal. Rptr.2d, at pp. 1130-1131 of 960 P.2d; cf. People v. Birks,
supra, 19 Cal.4th at pp. 124, 126, 77 Cal.Rptr.2d 848, 960 P.2d 1073 [Section
1159 is "nearly identical" to rule 31(c) of the Federal Rules of Criminal Procedure
(18 U.S.C.), the governing federal rule, and "there is no reason to assume our
statute has any different purpose, or any broader meaning, than rule 31(c)" as
construed by the United States Supreme Court.].) A request-based rule is also
consistent with the result reached in our recent decision in People v. Barton, supra,
12 Cal.4th 186, 47 Cal.Rptr.2d 569, 906 P.2d 531, where the prosecution requested
that the instruction at issue be given.[4] (Id. at p. 193, 47 Cal.Rptr.2d 569, 906 P.2d
531.)

For the reasons discussed above, I would reverse the judgment of the Court of
Appeal and remand this case to that court with directions to address the remaining
issues raised by defendant on appeal.

[1] All further unlabeled statutory references are to the Penal Code.

[2] The information alleged generally that defendant "did willfully, unlawfully, and
with malice aforethought murder Andreas Suryaatmadja, a human being."

[3] Defendant did not testify at trial. The tape recording of his police interview was
played for the jury as part of the prosecution's case-in-chief.

[4] At this point, according to the detective present at the interview, defendant
demonstrated that he fired with his arm in a level, locked position, parallel to the
ground.

[5] "Under California law, a lesser offense is necessarily included in a greater

offense if either the statutory elements of the greater offense, or the facts actually
alleged in the accusatory pleading, include all the elements of the lesser offense,
such that the greater cannot be committed without also committing the lesser."
(People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073
(Birks).) Though the question was raised from the bench at oral argument, and is
addressed by Justice Mosk, no party here has otherwise argued that voluntary
manslaughter "upon a sudden quarrel or heat of passion" (§ 192(a)) is not a
necessarily included offense of intentional murder. Defendant did dispute the
prosecution's claim that he intended to kill, and defendant received involuntary
manslaughter instructions on the theory of an unintentional but grossly negligent
killing. However, particularly as originally presented to the Court of Appeal,
defendant's appellate argument that he was entitled to an instruction on heat of
passion as a form of voluntary manslaughter has assumed that this theory applies
only to an intentional killing. We thus have no occasion in this case to decide
whether that is invariably so. (But see Christian S., supra, 7 Cal.4th at p. 780, fn. 4,
30 Cal.Rptr.2d 33, 872 P.2d 574 [suggesting that unreasonable self-defense may
reduce implied malice murder to voluntary manslaughter].) Justice Mosk's
reference to the fact that murder, but not manslaughter, may be committed upon a
fetus is also irrelevant in this case. This theory, too, has not been raised by the
parties. In any event, as Justice Mosk appears to concede, it has no bearing where,
as here, the accusatory pleading specifically charged murder of a human being.
(Birks, supra, ___ Cal.4th at p. ___, 77 Cal.Rptr.2d 848, 960 P.2d 1073; People v.
Marshall (1957) 48 Cal.2d 394, 405-407, 309 P.2d 456.)

[6] In dissent, Justice Brown urges at length that the California rule requiring sua
sponte instructions on lesser necessarily included offenses should be entirely
abrogated in favor of a rule requiring such instructions only on a party's request.
However, that broader issue is not before us, because the People themselves have
made no such contention. At oral argument, the People's counsel explicitly
disclaimed any such purpose. Counsel for the People agreed they seek
modification of the rule only to the "limited extent" of specifying that the court's
duty to instruct on its own motion does not extend beyond a single theory of a
lesser included offense that most conforms to the evidence and the strategies
pursued by the parties at trial. Accordingly, in resolving the case before us, we
consider only whether the "single theory" corollary advocated by the People is
consistent with the established general rule requiring sua sponte instructions on
lesser included offenses, not whether the general rule itself should be abolished.

Justice Brown implies that we act inconsistently, because in Birks we today

overturn the ill-considered rule allowing defendants to demand instructions on
lesser related offenses (Birks, supra, 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d
1073, overruling to that extent Geiger, supra, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674
P.2d 1303; see also fn. 16, post), but we decline here to reexamine the sua sponte
instructional rule for lesser included offenses, a doctrine she deems equally ill-
conceived. In Birks, however, the issue whether the rule for lesser related offenses
should be abrogated was directly and vigorously advanced. It is the principal
reason we granted review in Birks, and the question received the complete and
focused briefing attention of the parties. Hence, in Birks, the exceptional
circumstances which must justify a decision to overrule settled law were fully
explored. No similar situation is presented here. Though several of their arguments
imply a general distaste for the sua sponte instructional rule for lesser included
offenses (see fn. 9, post), the People do not pursue their objections to that end. For
the most part, the fundamental constitutional and policy arguments raised by
Justice Brown are not addressed in the parties' briefs. In any event, as we note at
length both here and in Birks, there are logical and significant reasons to follow
established California precedent with respect to lesser included offenses while
abandoning such precedent in the case of lesser related offenses. (Ante, at pp. 876-
877 of 77 Cal.Rptr.2d, at pp. 1100-1101 of 960 P.2d; Birks, supra, ___ Cal.4th at
pp. ___-___, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)

As Justice Brown observes, we do herein modify the standard by which the

reversibility of erroneous failures to instruct sua sponte on lesser included offenses
has heretofore been determined. (Post, at pp. 884-894 of 77 Cal.Rptr.2d, at pp.
1108-1118 of 960 P.2d.) But that is an issue directly raised, and addressed at
length, in this court. By concluding that such error must henceforth be examined
for its actual effect on the trial outcome, we simply adopt the uniform standard of
reversible prejudice applicable to most forms of state law trial error by virtue of the
"miscarriage of justice" clause of the California Constitution (art. VI, § 13).
Contrary to Justice Brown's assertion, we do not thereby cling to the sua sponte
rule on the one hand while denigrating its importance on the other. (See also fn. 25,
post.)

[7] Barton also observed that a rule allowing the defendant to preclude instructions
on lesser included offenses inconsistent with the defense trial theory "would ... be
unfair to the prosecution," because it would deny the prosecution the opportunity to
argue that even if the defendant was not guilty of the charged offenses, he or she
was at least guilty of the lesser offense. (12 Cal.4th 186, 196, 47 Cal.Rptr.2d 569,
906 P.2d 531.) The People argue that similar fairness considerations are not
presented here, because it was not a defense objection that led to the omission of
instructions on heat of passion, and neither party argued that theory to the jury.
This contention is further discussed below.
[8] A single third option may actually be of little value to either side if arbitrarily
chosen and no closer to the jury's rational view of the evidence. We realize that the
United States Supreme Court has endorsed the "single third option" idea for
purposes of the somewhat anologous federal constitutional right to consideration of
lesser included offenses in capital cases. In Schad v. Arizona (1991)501 U.S. 624,
111 S.Ct. 2491, 115 L.Ed.2d 555 (Schad), the court held that the limited federal
guarantee seeks only to prevent the state from coercing a judgment of death
eligibility by preventing the jury from considering a lesser included noncapital
charge as an alternative to setting the defendant free. The Schad majority reasoned
that this guarantee is fulfilled so long as the capital jury is given a single noncapital
third option, even if the jury was not instructed on other lesser included noncapital
offenses also supported by the evidence. (Id. at pp. 646-648, 111 S.Ct. 2491.) We
have never adopted such a restrictive analysis for purposes of California law.

[9] Several of the People's arguments—that the sua sponte rule allows the
defendant to "gamble" by remaining silent on instructions, that instructions
inconsistent with the defendant's trial theory should not be given, and that counsel's
failure to request appropriate instructions is an ineffective assistance of counsel
issue—do not apply only in the narrow situation before us, but instead attack the
heart of the Sedeno rule in all its applications. Of course, as we have previously
indicated, the People do not ask that we overrule Sedeno per se. Indeed, for reasons
discussed at length above and in our prior decisions, their arguments would not
justify such an action. Insofar as the People's contentions are not convincing in that
greater context, they are equally unpersuasive with respect to the more limited
issue in this case.

[10] This means that substantial evidence of heat of passion and unreasonable self-
defense may exist, and the duty to instruct sua sponte may therefore arise, even
when the defendant claims that the killing was accidental, or that the states of mind
on which these theories depend were absent. For example, in Barton, supra, 12
Cal.4th 186, 47 Cal.Rptr.2d 569, 906 P.2d 531, we concluded that when a killing
occurred during a heated argument, which itself shortly followed an "upset[ting]"
traffic incident between the victim and the defendant's daughter, there was
substantial evidence of heat of passion despite the defendant's insistence that he
sought only to detain the victim and fired his weapon accidentally. (Id. at p. 202,
47 Cal.Rptr.2d 569, 906 P.2d 531.) Insofar as Sedeno and Wickersham stated or
implied a contrary rule (see Wickersham, supra, 32 Cal.3d 307, 327-329, 185 Cal.
Rptr. 436, 650 P.2d 311; Sedeno, supra, 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518
P.2d 913), their analyses stemmed from the assumption, since corrected (see
Barton, supra, 12 Cal.4th 186, 199-201, 47 Cal.Rptr.2d 569, 906 P.2d 531), that
these theories of voluntary manslaughter are mere defenses on which the defendant
must openly rely before the entitlement to instructions arises.

[11] The People ask us to rule as a matter of public policy that mere vandalism to
an automobile is never sufficient provocation to warrant lesser included offense
instructions on voluntary manslaughter. Indeed, we have so suggested. (See
Christian S., supra, 7 Cal.4th 768, 779, fn. 3, 30 Cal.Rptr.2d 33, 872 P.2d 574.)
However, this case presents no such isolated issue. Here the jury could infer that
defendant observed an attack on his vehicle, within feet of the entrance to his
home, by a large, armed, and clearly hostile group of men who, defendant had
reason to suspect, were seeking revenge for the incident of the previous evening,
and that defendant feared the intruders intended to force their way into the
residence. Such a scenario raises grounds of provocation beyond the "mere"
destruction of property.

[12] Thus, defendant stated that "it looks like they're rushing the door, so I break
the front window with my hand .. . with the gun and I just start shooting out."
Moments later, defendant continued, "[a]nd then they ... like kept going and I shot
out and they kept going and I shot out again and they like started going then I ran
out and I'm like just going like this and I'm yelling—I'm ... trying to get em to stop
and I'm just shooting, shooting, shooting and that's it."

[13] Rule 31(c) provides in relevant part: "The defendant may be found guilty of
an offense necessarily included in the offense charged. ..." A California statute,
Penal Code section 1159, similarly provides that "[t]he jury, or the judge if a jury
trial is waived, may find the defendant guilty of any offense, the commission of
which is necessarily included in [the offense with] which he is charged...."

[14] The high court has since revisited the issue of lesser offense instructions in
only one subsequent noncapital case, Schmuck v. United States (1989) 489 U.S.
705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (Schmuck). Schmuck, like Keeble, was a rule
31(c) decision; no constitutional issue was presented, and none was decided.
Schmuck concluded that because rule 31(c) embodies a strict elements approach to
lesser necessarily included offenses, the parties to a federal criminal action are not
entitled to instructions on lesser offenses which, though arguably related to the
charged offense in some way, contain statutory elements not found in the charged
offense. (Schmuck, supra, 489 U.S. at pp. 715-721, 109 S.Ct. 1443.) The defendant
in Schmuck, like the accused in Keeble, had requested a lesser offense instruction,
and in both decisions, the court noted the long-standing principle that the rule
entitles the defendant to instructions on lesser included offenses supported by the
evidence. (Schmuck, supra, 489 U.S. at p. 717, 109 S.Ct. 1443; Keeble, supra, 412
U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844.) Schmuck further noted that the rule
implies an entitlement to such instructions by both parties "without distinguishing
between a request for [such] instructions made by the Government and one made
by the defendant." (Schmuck, supra, 489 U.S. at p. 717, 109 S.Ct. 1443, italics
added.) No claim arose in either Keeble or Schmuck that rule 31(c) requires a
federal court to instruct sua sponte on lesser included offenses, and the United
States Supreme Court has never confronted that issue.

[15] As indicated at length above, we have identified broader concerns as the basis
of the California rule requiring sua sponte instructions on all lesser included
offenses supported by the evidence. These principally include the policy that the
jury, in the performance of its "truth-ascertainment function" (Barton, supra, 12
Cal.4th 186, 196, 47 Cal.Rptr.2d 569, 906 P.2d 531), shall be exposed to "the full
range of possible verdicts," so that it may reach the correct verdict on the evidence,
not one either "harsher or more lenient than the evidence merits." (Wickersham,
supra, 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311.)

[16] Justice Thomas's opinion in Reeves noted in passing that "[a]lmost all States,
including Nebraska, provide instructions only on those offenses that have been
deemed to constitute lesser included offenses of the charged crime. [Citation.] We
have never suggested that the Constitution requires anything more." (Reeves,
supra, 524 U.S. ___, ___, 118 S.Ct. 1895, 1901, fn. omitted, italics added.) This
statement was made in the context of a capital case, and no implication arises that
the court had recognized a constitutional right to instructions on lesser included
offenses in any other circumstance. As the foregoing discussion demonstrates, the
court has long avoided any such holding.

We note that the analyses of Reeves, and of Schmuck, supra, 489 U.S. 705, 109
S.Ct. 1443, 103 L.Ed.2d 734, insofar as they demonstrate difficulties with a
requirement of instructions on lesser nonincluded offenses, are among the
considerations which have today prompted us, in a companion decision, to
abrogate the California rule entitling the defendant to demand instructions on lesser
merely related offenses supported by the evidence. (Birks, supra, 19 Cal.4th 108,
77 Cal.Rptr.2d 848, 960 P.2d 1073, overruling Geiger, supra, 35 Cal.3d 510, 199
Cal.Rptr. 45, 674 P.2d 1303.)

[17] We may, of course, depart from the federal Constitution in ruling on questions
of California criminal procedure, and our interpretations of the California
Constitution are not limited by federal law. (Raven v. Deukmejian (1990) 52 Cal.3d
336, 353-354, 276 Cal.Rptr. 326, 801 P.2d 1077.) Even if "cogent reasons" must
exist to interpret a state constitutional provision differently from a similarly
worded provision of the United States Constitution (id. at p. 353, 276 Cal.Rptr.
326, 801 P.2d 1077, and cases cited), the reasons for the long-established
California approach to instructions on lesser included offenses, both as a matter of
state constitutional law and under general principles of criminal procedure, have
been set forth at length in our decisions. Of course, we face here no direct
repudiation of an entitlement to lesser included offense instructions by the United
States Supreme Court. Indeed, as we have explained, federal law other than the
Constitution provides this entitlement, at least upon request, in all federal
prosecutions, and the high court has noted both its value and its widespread
acceptance among the states. Finally, we stress again that in this case, the People
raise no general objection to the Sedeno instructional rule, including its sua sponte
aspect. They merely seek to limit application of the rule in the limited
circumstances presented by this case.

[18] Though Justice Kennard suggests otherwise, the quoted words "the offense,"
as italicized in the text, can only refer to the antecedent "heat of passion
manslaughter." (Italics added.) Hence, there can be no inference that defendant
seeks to raise, for the first time in this appeal, a claim that the jury was
misinstructed on murder. (See also text discussion & fn. 19, post.)

[19] Justice Kennard apparently agrees in general that the failure to instruct fully,
sua sponte, on a lesser included offense supported by the evidence is state law error
alone. However, noting the "unique" role of malice in distinguishing murder from
voluntary manslaughter (post, at p. 899 of 77 Cal.Rptr.2d, at p. 1122 of 950 P.2d
(dis. opn. of Kennard, J.)), she suggests the failure to instruct sua sponte, where
evidence of heat of passion existed, that an intentional, unlawful killing is
nonetheless without malice if done in a heat of passion, and thus constitutes not
murder but voluntary manslaughter, caused the definition of the malice element of
murder, the charged offense, to be incomplete. Such defective instructions on an
element of the charge and conviction, she concludes, are a form of federal
constitutional error. Whatever the merits of this hypothesis, however, defendant,
the appellant in this case, has simply not raised it. Throughout his briefs on appeal,
both in the Court of Appeal and in this court, defendant has argued only that the
failure to instruct on heat of passion was error because it partially removed the
lesser offense option of voluntary manslaughter from the jury's consideration. (See
also text discussion & fn. 18, ante.) Even if certain passages of the People's brief
on the merits in this court may be interpreted as an attempt to anticipate, in an
abundance of caution, the approach now taken by Justice Kennard, our conclusion
that the issue is not properly before us does not change. The fact remains that
defendant himself has never advanced the contention anticipated by the People.
Even with their prompting, he has never explicitly asserted, let alone developed the
argument, that the instructions in this case are defective under federal law because
they incompletely defined the malice element of murder. The issues presented by
such a claim must properly await a case in which they have been clearly raised and
fully briefed.

[20] Article VI, section 13 of the Colorado Constitution provides: "No judgment
shall be set aside, or new trial granted, in any cause, on the ground of misdirection
of the jury, or of the improper admission or rejection of evidence, or for any error
as to any matter of pleading, or for any error as to any matter of procedure, unless,
after an examination of the entire cause, including the evidence, the court shall be
of the opinion that the error complained of has resulted in a miscarriage of justice."

[21] Cahill rejected the notion that California's automatic reversal rule for
involuntary confessions was based on some ground, such as the deterrence of
official misconduct, which was independent of the fairness and accuracy of the
trial itself. (Cahill, supra, 5 Cal.4th 478, 506-507, 20 Cal.Rptr.2d 582, 853 P.2d
1037.) Instead, Cahill noted, the apparent California rationale for the rule was a
general assumption that confessions have a "`bombshell'" effect on the juries that
hear them. (Id. at p. 503, 20 Cal. Rptr.2d 582, 853 P.2d 1037.) In using this
assumption to justify a rule of reversibility per se, Cahill observed, the prior
decisions "lost sight of the principal purpose and significance" of California
Constitution article VI, section 13. (5 Cal.4th at p. 503, 20 Cal.Rptr.2d 582, 853
P.2d 1037.) The fact that an improperly admitted confession might often be
expected to cause prejudice did not abrogate the constitutional requirement that the
actual effect of the error be examined in each individual case. (Ibid.)

[22] Neither People v. Cantrell (1973) 8 Cal.3d 672, 105 Cal.Rptr. 792, 504 P.2d
1256 (Cantrell) nor People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467,
523 P.2d 267 (Thornton), as later synthesized in People v. Garcia (1984) 36 Cal.3d
539, 205 Cal.Rptr. 265, 684 P.2d 826 (Garcia), state additional exceptions to the
rule of per se reversal for Modesto error. Garcia concluded that under the so-called
Cantrell-Thornton rule applicable to omitted instructions on the elements of a
charged offense or special circumstance, automatic reversal was not required
"where the parties recognized that [the omitted element] was in issue, presented all
the evidence at their command on that issue, and ... the record not only establishes
the [missing element] as a matter of law but shows the contrary evidence not
worthy of consideration." (Garcia, supra, 36 Cal.3d at p. 556, 205 Cal.Rptr. 265,
684 P.2d 826, fn. omitted, italics added.) In the evidentiary circumstances
described—i.e., a complete absence of "worthy" evidence on the omitted issue—no
duty to instruct on a lesser included offense would arise under Modesto and
Sedeno.

[23] As Flood explained, People v. Phillips (1966) 64 Cal.2d 574, 51 Cal.Rptr.

225, 414 P.2d 353 and subsequent cases had mistakenly extended Modesto's
automatic reversal rule to the erroneous withdrawal of an element of the charged
offense from the jury's consideration. (Flood, supra, 18 Cal.4th 470, 484, 76
Cal.Rptr.2d 180, 957 P.2d 869.)

[24] Here, as in Cahill, there is no indication the error in question implicates

concerns independent of fair trial procedures, such as deterrence of official
misconduct, so that reversal only for prejudice in the trial itself would defeat the
purpose of the underlying rule.

[25] On the other hand, we disagree with Justice Mosk's assertion that if the
defendant was convicted of the charged offense on substantial evidence, any error
in failing to instruct on a lesser included offense must be harmless per se. Justice
Mosk's premise is that such error affects only the lesser offense of which the
defendant was not convicted. But the very purpose of the rule is to allow the jurors
to convict of either the greater or the lesser offense where the evidence might
support either. 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. Depending on the circumstances of an
individual case, such an examination may reveal a reasonable probability that the
error affected the outcome in this way.

[26] In abrogating the Sedeno standard of reversal for instructional error on lesser
included offenses in noncapital cases, we depart from the "fundamental," though
"flexible," jurisprudential policy of stare decisis. (People v. Latimer (1993) 5
Cal.4th 1203, 1212-1213, 23 Cal.Rptr.2d 144, 858 P.2d 611 (Latimer).) As other
recent decisions of this court demonstrate, such departure is compelled by our
reexamination of the meaning of the "miscarriage of justice" clause of the
California Constitution (art. VI, § 13), a matter on which we are the final arbiter.
We discern no institutional or societal reliance interests that weigh strongly against
the new rule we announce today. (E.g., Latimer, supra, 5 Cal.4th at p. 1213, 23
Cal.Rptr.2d 144, 858 P.2d 611.) We also reject defendant's contention that any
such new rule may not be applied "retroactively" to his or any other pending case.
Due process does not require such a result, since the change in appellate review
standards adopted in this opinion neither expands criminal liability nor enhances
punishment for a crime previously committed. (People v. Cuevas (1995) 12 Cal.4th
252, 275, 48 Cal.Rptr.2d 135, 906 P.2d 1290 (Cuevas); see Bouie v. City of
Columbia (1964) 378 U.S. 347, 352-354, 84 S.Ct. 1697, 12 L.Ed.2d 894.) Nor does
it implicate any other cognizable reliance interest of individual criminal
defendants. (Cuevas, supra, 12 Cal.4th at p. 276, 48 Cal.Rptr.2d 135, 906 P.2d
1290; cf; e.g., People v. Scott (1994) 9 Cal.4th 331, 357-358, 36 Cal. Rptr.2d 627,
885 P.2d 1040.) We therefore conclude that our decision may have full retroactive
effect.

[1] I note in passing that, by instructing on voluntary manslaughter via imperfect

self-defense, the superior court effectively instructed on voluntary manslaughter on
a sudden quarrel or heat of passion. Common to both was Breverman's reaction to
Kim and his friends, including Suryaatmadja. Voluntary manslaughter on a sudden
quarrel or heat of passion requires provocation that is adequate to arouse a
reasonable person. (E.g., People v. Valentine (1946) 28 Cal.2d 121, 136-144, 169
P.2d 1.) So aroused, such a person may act in terror (e.g., People v. Logan (1917)
175 Cal. 45, 49, 164 P. 1121), but not for revenge (e.g., ibid.) — not even against
teenage boys of a different ethnic group who vandalize his expensive automobile.
Here, Breverman's emotions doubtless ran high. But even if they began in terror,
they evidently ended in revenge, as he shot off his last rounds, standing near his
BMW, with his arm in a level, locked position, parallel to the ground. The same
evidence that assertedly supported voluntary manslaughter via imperfect self-
defense assertedly supported voluntary manslaughter on a sudden quarrel or heat of
passion. That evidence, of course, was rejected by the jury, not at all unreasonably.

Unlike Justice Kennard, I decline to consider, in detail and in depth, the

relationship between murder and manslaughter and their respective statutory
definitions. I do so because the parties did not raise the issue in the Court of
Appeal. (See Cal. Rules of Court, rule 29(b)(1).) The question is surely an
important one. But it will not escape examination. It is implicated in People v. Lee,
review granted July 29, 1998 (S060352), which is currently pending on review.

[2] Against my conclusion, it might be argued that a trial court's error in failing to
instruct on a lesser offense necessarily included within a greater charged offense
would be "non reversible per se" whenever the jury does not "over-convict" or
"over-acquit." But if the harm that such a failure threatens, which is, of course,
"overconviction" and "over-acquittal," does not come to pass, there is no ground
for reversal. In this situation, the trial court, by failing to instruct as indicated
above, may have failed to provide prophylaxis — but prophylaxis proved not to be
necessary.

Unlike Justice Kennard, I decline to consider, in any way, the relationship between
murder and manslaughter and its consequences under the United States
Constitution. I do so because the parties did not raise the issue in the Court of
Appeal. (See, ante, at p. 897, fn. 1 of 77 Cal. Rptr.2d, at p. 1121, fn. 1 of 960
P.2d.)

[1] References to "murder" are to murder in the second degree.

[2] Further statutory references are to the Penal Code.

[3] I use the term "heat of passion" to refer to the statutory language "upon a
sudden quarrel or heat of passion." (§ 192, subd. (a).)

[4] Indeed, voluntary manslaughter might be termed a lesser including offense of

murder, for although it carries a lesser penalty than murder, it includes all of the
elemental facts of murder.

[5] Here, the trial court did correctly instruct the jury on the unreasonable self-
defense form of voluntary manslaughter.

[6] Defendant's claim that the trial court unconstitutionally "removed the issue of
provocation negating malice from the jury" is a claim that the jury convicted him
of murder without being fully instructed on the statutory element of malice. The
majority, however, denies that defendant has presented this claim, concluding that
the word "offense" in the sentence from defendant's brief quoted in the text refers
to voluntary manslaughter, not murder, and that defendant is only complaining of
incomplete instructions on voluntary manslaughter. (Maj. opn., ante, at p. 887, fn.
18 of 77 Cal.Rptr.2d, at p. 1111, fn. 18 of 960 P.2d.) This conclusion is erroneous
and illogical, for the offense defendant refers to can only be murder, the offense of
which he was convicted, and not voluntary manslaughter, an offense of which he
was not convicted. The danger posed by jury instructions omitting an element of
the offense is that the defendant will be unjustly convicted of an offense without
the jury finding that all its elements are present. Defendants thus can be harmed by
instructions omitting an element of an offense only if they are convicted of the
offense. Because omitting an element of an offense of which a defendant has not
be convicted (in this case, manslaughter) cannot harm the defendant, the majority's
alteration turns defendant's sentence into nonsense.
[7] As I earlier stated, this case turns on the unique relationship between murder
and voluntary manslaughter. It presents no occasion to address the question of
what standard should be applied in general to determine whether a trial court's
failure to instruct sua sponte on a typical lesser included offense is harmless.

[1] Indeed, Sedeno itself overruled an even more stringent standard for determining
whether the failure to instruct is prejudicial. (See Sedeno, supra, Cal.3d at pp. 720-
721, 112 Cal.Rptr. 1, 518 P.2d 913, overruling People v. Modesto (1963) 59 Cal.2d
722, 730-731, 31 Cal.Rptr. 225, 382 P.2d 33.) I wonder why, if the sua sponte
instruction rule is as important as some of our prior cases seem to say, we have
now made the failure to instruct on lesser included offenses all but harmless per se.
(See dis. opn. of Mosk, J., ante, at pp. 898-899 & fn. 2 of 77 Cal.Rptr.2d, at pp.
1121-1122 & fn. 2 of 960 P.2d.)

[2] At a bare minimum, we ought not to extend the sua sponte instruction rule "to
every theory of [a lesser included] offense that finds rational support in the
evidence." (Maj. opn., ante, at p. 872 of 77 Cal.Rptr.2d, at p. 1097 of 960 P.2d,
italics added.) The People's proposal — that trial courts need only instruct sua
sponte on the theory of a lesser included offense most consistent with the evidence
and the line of defense pursued at trial — is eminently reasonable. Indeed, the
United States Supreme Court's decision in Schad v. Arizona (1991) 501 U.S. 624,
111 S.Ct. 2491, 115 L.Ed.2d 555, suggests precisely such an approach. (See maj.
opn., ante, at p. 881, fn. 8 of 77 Cal.Rptr.2d, at p. 1105, fn. 8 of 960 P.2d.)

[3] In People v. Birks, supra, 19 Cal.4th at p. 124, 77 Cal.Rptr.2d 848, 960 P.2d
1073, this court suggests that "stare decisis may provide a ` "cogent reason[]" `... to
retain, for California purposes, a constitutional principle once established, even if
that principle subsequently appears at odds with federal jurisprudence." I agree, but
only to the extent the state rule is itself well grounded. As explained in the text, the
California rule requiring trial courts to instruct sua sponte on lesser included
offenses does not fall in this category.

[4] Although I agree that the parties' briefs at least implicitly raise the issue
addressed in Justice Kennard's dissenting opinion, neither party has addressed, or
even cited, Mullaney v. Wilbur (1975) 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d
508, the seminal case on the point. Since this court has not ordered supplemental
briefing on the issue, I decline to address it in detail. I do note, however, that the
United States Supreme Court's decision in Mullaney, supra, 421 U.S. 684, 95 S.Ct.
1881, 44 L.Ed.2d 508, grants the states considerable latitude in this area, expressly
requiring that the heat of passion issue be "properly presented" (id. at p. 704, 95
S.Ct. 1881) and expressly upholding state law requirements that a defendant
present "`some evidence'" on the issue (id. at pp. 701-702, fn. 28, 95 S.Ct. 1881). It
may well be that a heat of passion issue is not properly presented for Mullaney
purposes unless and until a defendant requests instructions on the issue. (Cf. id. at
p. 704, 95 S.Ct. 1881 & fn. * (conc. opn. of Rehnquist, J.) [noting that the state had
not made any point of the defendant's failure to object in the trial court where
"making an objection or exception ... might prevent the error from ever
occurring"].)