California Criminal Jury Instructions (CALCRIM) (2017)

570. Voluntary Manslaughter: Heat of Passion - Lesser Included Offense

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F. MANSLAUGHTER
(i) Voluntary
570.Voluntary Manslaughter: Heat of Passion—Lesser Included
Offense (Pen. Code, § 192(a))
A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed someone because of a sudden
quarrel or in the heat of passion.
The defendant killed someone because of a sudden quarrel or in the
heat of passion if:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly and
under the influence of intense emotion that obscured (his/her)
reasoning or judgment;
AND
3. The provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment.
Heat of passion does not require anger, rage, or any specific emotion. It
can be any violent or intense emotion that causes a person to act
without due deliberation and reflection.
In order for heat of passion to reduce a murder to voluntary
manslaughter, the defendant must have acted under the direct and
immediate influence of provocation as I have defined it. While no
specific type of provocation is required, slight or remote provocation is
not sufficient. Sufficient provocation may occur over a short or long
period of time.
It is not enough that the defendant simply was provoked. The defendant
is not allowed to set up (his/her) own standard of conduct. You must
decide whether the defendant was provoked and whether the
provocation was sufficient. In deciding whether the provocation was
sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion
rather than from judgment.
[If enough time passed between the provocation and the killing for a
person of average disposition to “cool off” and regain his or her clear
reasoning and judgment, then the killing is not reduced to voluntary
manslaughter on this basis.]
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The People have the burden of proving beyond a reasonable doubt that
the defendant did not kill as the result of a sudden quarrel or in the
heat of passion. If the People have not met this burden, you must find
the defendant not guilty of murder.
New January 2006; Revised December 2008, February 2014, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on voluntary manslaughter on either
theory, heat of passion or imperfect self-defense, when evidence of either is
“substantial enough to merit consideration” by the jury. (People v. Breverman
(1998) 19 Cal.4th 142, 153–163 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v.
Barton (1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
If the victim’s gender identity or sexual orientation raises specific issues concerning
whether provocation was objectively reasonable, give an instruction tailored to
those issues on request. (Pen. Code, § 192(f), amended effective January 1, 2015.)
Related Instructions
CALCRIM No. 511, Excusable Homicide: Accident in the Heat of Passion.
AUTHORITY
• Elements Pen. Code, § 192(a).
Heat of Passion Defined People v. Beltran (2013) 56 Cal.4th 935, 938, 942,
957 [157 Cal.Rptr. 3d 503, 301 P.3d 1120]; People v. Breverman (1998) 19
Cal.4th 142, 163 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Valentine
(1946) 28 Cal.2d 121, 139 [169 P.2d 1]; People v. Lee (1999) 20 Cal.4th 47, 59
[82 Cal.Rptr.2d 625, 971 P.2d 1001].
• “Average Person” Need Not Have Been Provoked to Kill, Just to Act Rashly
and Without Deliberation (People v. Beltran (2013) 56 Cal.4th 935, 938, 942,
957 [157 Cal.Rptr. 3d 503, 301 P.3d 1120]); People v. Najera (2006) 138
Cal.App.4th 212, 223 [41 Cal.Rptr.3d 244].
• Gender Identity and Sexual Orientation Not Proper Basis for Finding
Provocation Objectively Reasonable Pen. Code, § 192(f), amended effective
January 1, 2015.
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person §§ 111, 224, 226–245.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.03[2][g], 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.01[3][e], 142.02[1][a], [e], [f], [2][a], [3][c]
(Matthew Bender).
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LESSER INCLUDED OFFENSES
• Attempted Voluntary Manslaughter People v. Van Ronk (1985) 171 Cal.App.3d
818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d
1018, 1024–1026 [162 Cal.Rptr. 748].
Involuntary manslaughter is not a lesser included offense of voluntary
manslaughter. (People v. Orr (1994) 22 Cal.App.4th 780, 784 [27 Cal.Rtpr.2d
553].)
RELATED ISSUES
Heat of Passion: Sufficiency of Provocation—Examples
In People v. Breverman, sufficient evidence of provocation existed where a mob of
young men trespassed onto defendant’s yard and attacked defendant’s car with
weapons. (People v. Breverman (1998) 19 Cal.4th 142, 163–164 [77 Cal.Rptr.2d
870, 960 P.2d 1094].) Provocation has also been found sufficient based on the
murder of a family member (People v. Brooks (1986) 185 Cal.App.3d 687, 694
[230 Cal.Rptr. 86]); a sudden and violent quarrel (People v. Elmore (1914) 167 Cal.
205, 211 [138 P. 989]); verbal taunts by an unfaithful wife (People v. Berry (1976)
18 Cal.3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777]); and the infidelity of a lover
(People v. Borchers (1958) 50 Cal.2d 321, 328–329 [325 P.2d 97]).
In the following cases, evidence has been found inadequate to warrant instruction
on provocation: evidence of name calling, smirking, or staring and looking stone-
faced (People v. Lucas (1997) 55 Cal.App.4th 721, 739 [64 Cal.Rptr.2d 282]);
calling someone a particular epithet (People v. Manriquez (2005) 37 Cal.4th 547,
585–586 [36 Cal.Rptr.3d 340, 123 P.3d 614]); refusing to have sex in exchange for
drugs (People v. Michael Sims Dixon (1995) 32 Cal.App.4th 1547, 1555–1556 [38
Cal.Rptr.2d 859]); a victim’s resistance against a rape attempt (People v. Rich
(1988) 45 Cal.3d 1036, 1112 [248 Cal.Rptr. 510, 755 P.2d 960]); the desire for
revenge (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [54 Cal.Rptr.2d
608]); and a long history of criticism, reproach and ridicule where the defendant
had not seen the victims for over two weeks prior to the killings (People v.
Kanawyer (2003) 113 Cal.App.4th 1233, 1246–1247 [7 Cal.Rptr.3d 401]). In
addition the Supreme Court has suggested that mere vandalism of an automobile is
insufficient for provocation. (See People v. Breverman (1998) 19 Cal.4th 142, 164,
fn. 11 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; In re Christian S. (1994) 7 Cal.4th 768,
779, fn. 3 [30 Cal.Rptr.2d 33, 872 P.2d 574].)
Heat of Passion: Types of Provocation
Heat of passion does not require anger or rage. It can be “any violent, intense,
high-wrought or enthusiastic emotion.” (People v. Breverman (1998) 19 Cal.4th
142, 163–164 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Heat of Passion: Verbal Provocation Sufficient
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. Lee
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(1999) 20 Cal.4th 47, 59 [82 Cal.Rptr.2d 625, 971 P.2d 1001]; People v. Valentine
(1946) 28 Cal.2d 121, 138–139 [169 P.2d 1].)
Heat of Passion: Defendant Initial Aggressor
“[A] defendant who provokes a physical encounter by rude challenges to another
person to fight, coupled with threats of violence and death to that person and his
entire family, is not entitled to claim that he was provoked into using deadly force
when the challenged person responds without apparent (or actual) use of such
force.” (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303, 1312–1313 [7
Cal.Rptr.3d 161].)
Heat of Passion: Defendant’s Own Standard
Unrestrained and unprovoked rage does not constitute heat of passion and a person
of extremely violent temperament cannot substitute his or her own subjective
standard for heat of passion. (People v. Valentine (1946) 28 Cal.2d 121, 139 [169
P.2d 1] [court approved admonishing jury on this point]; People v. Danielly (1949)
33 Cal.2d 362, 377 [202 P.2d 18]; People v. Berry (1976) 18 Cal.3d 509, 515 [134
Cal.Rptr. 415, 556 P.2d 777].) The objective element of this form of voluntary
manslaughter is not satisfied by evidence of a defendant’s “extraordinary character
and environmental deficiencies.” (People v. Steele (2002) 27 Cal.4th 1230, 1253
[120 Cal.Rptr.2d 432, 47 P.3d 225] [evidence of intoxication, mental deficiencies,
and psychological dysfunction due to traumatic experiences in Vietnam are not
provocation by the victim].)
Premeditation and Deliberation—Heat of Passion Provocation
Provocation and heat of passion that is insufficient to reduce a murder to
manslaughter may nonetheless reduce murder from first to second degree. (People
v. Thomas (1945) 25 Cal.2d 880, 903 [156 P.2d 7] [provocation raised reasonable
doubt about the idea of premeditation or deliberation].) There is, however, no sua
sponte duty to instruct the jury on this issue because provocation in this context is
a defense to the element of deliberation, not an element of the crime, as it is in the
manslaughter context. (People v. Middleton (1997) 52 Cal.App.4th 19, 32–33 [60
Cal.Rptr.2d 366], disapproved on other grounds in People v. Gonzalez (2003) 31
Cal.4th 745, 752 [3 Cal.Rptr.3d 676, 74 P.3d 771].) On request, give CALCRIM
No. 522, Provocation: Effect on Degree of Murder.
Fetus
Manslaughter does not apply to the death of a fetus. (People v. Carlson (1974) 37
Cal.App.3d 349, 355 [112 Cal.Rptr. 321].) While the Legislature has included the
killing of a fetus, as well as a human being, within the definition of murder under
Penal Code section 187, it has “left untouched the provisions of section 192,
defining manslaughter [as] the ‘unlawful killing of a human being.’ ” (Ibid.)
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