Because Provocation With Heat Of Passion Or Sudden Quarrel Negates Malice, Such A Killing Without Homicidal Intent Is Involuntary Or Voluntary Manslaughter

By guest-author Stephen Greenberg, an appellate practitioner Grass Valley, California

(January 1998)

    The Problem. When a defendant kills in the heat of passion or a sudden quarrel, upon adequate provocation, the homicide is unlawful; that is, it is neither justified nor excused. But the circumstances mitigate culpability, by negating the malice element of murder. The resulting offense is manslaughter. What of the defendant who, provoked into a heat of passion, intentionally assaults the decedent without intending her death? Regardless of the defendant’s mens rea, the offense should be manslaughter.

    Penal Code sections 188 and 192 make this clear. Malice is express when the defendant intended to kill, implied "when no considerable provocation appears . . . ." (§ 188.) Thus, assuming adequate provocation, there is no implied malice. The statutory definition of manslaughter addresses only the mitigation theory and ignores the express/implied malice distinction: "Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [¶] (a) Voluntary--upon a sudden quarrel or heat of passion. . . . ." (§ 192, emphasis added.) The statute thus describes voluntary manslaughter not as an intentional killing accompanied by sudden quarrel or heat of passion, but rather as an "unlawful" killing under those conditions. Its "without malice" element is clearly set up as a counterpart to section 187’s definition of murder as an "unlawful killing . . . with malice aforethought." (Emphasis added; People v. Cameron (1994) 30 Cal.App.4th 591, 604.) Implied malice is simply an imputed legal form of the intent to kill (People v. Doyell(1874) 48 Cal. 85, 95-96), and it is defined as excluding heat of passion. (Cf. People v. Cole (1956) 47 Cal.2d 99, 106 [where record shows no provocation or justification for defendant’s killing, malice is implied].)

    Unfortunately, the standard jury instructions limit passion/ quarrel manslaughter to defendants who intended their victims’ deaths, as an element of voluntary manslaughter. (CALJIC No. 8.40.) And the involuntary manslaughter instructions do not incorporate the passion/quarrel concept. But where the evidence would support a finding of less culpable intent, the jury should be instructed that manslaughter is still an appropriate verdict. CALJIC instructions do not have the force of law and are "not sacrosanct[.]" (People v. Vargas (1988) 204 Cal.App.3d 1455, 1464.) Where they inadequately define the statutory elements of or defenses to a crime, the courts must reject or modify them. (See, e.g., People v. Beeman (1984) 35 Cal.3d 547, 560.)

    Historical Background. For purposes of this issue, the Penal Code’s definitions of murder, malice and manslaughter (§§ 187, 188, 192) are essentially the same as those in the original 1850 Act Concerning Crimes and Punishments (§§ 19-22), which in turn were derived from the common law. (Peoplev. Dillon (1983) 34 Cal.3d 441, 465.) Thus, the analysis in pre-Code cases generally has continued validity. (Id. at 467-468; Pen. Code, § 5.)

    In a pair of cases, the Supreme Court provided an early discussion of malice murder, still viewed as authoritative. (People v. Doyell, supra; People v. Freel (1874) 48 Cal. 436; see 1 Witkin, Cal. Crim. Law (2d ed. 1988) § 503, p. 569.) Distinguishing voluntary manslaughter, Doyell noted that "the law . . . disregards the actual intent to kill, when the killing is done in a sudden passion, caused by sufficient provocation." (48 Cal. at 96, emphasis added.) The quoted statement did not treat intent to kill as an element of voluntary manslaughter. The point is that whatever the defendant’s intent--even if to kill--the heat of passion defense is applicable. This point was clarified in the subsequent sentence: " . . . in [passion] cases (out of forbearance for the weakness of human nature) the slayer is presumed not to be actuated by an intent to kill, although such intent mayin fact exist." (Ibid., emphasis added; see also Freel: Heat of passion law "will disregard the actual intent and will reduce the offense to manslaughter." (48 Cal. at 437, emphasis added.)

    This sensible construction of homicide law has not been completely forgotten: "‘When a mortal blow is struck upon a sudden quarrel or in the heat of passion, upon adequate provocation, the actual intent is disregarded. In such case, although the intent to kill may exist, it is not that malicious intent which is an essential element in the crime of murder.’" (People v. Slater (1943) 60 Cal.App.2d 358, 371, emphasis added.) "People v. Freel (1874) 48 Cal. 436, . . . only holds, correctly, that even if there were an intent to kill the offense could be manslaughter under the heat of passion doctrine. [Citations.]" (Peoplev. Cameron, supra, 30 Cal.App.4th at 604, fn. 8, emphasis added.)

    Similarly, a long line of Supreme Court cases have explained heat of passion theory in terms thoroughly inconsistent with its strict limitation to an intentional killing. As early as Doyell, the court spoke of "forbearance for the weakness of human nature . . . ." (48 Cal. at 95-96.) The forbearance is based on a recognition that under some circumstances (provoked passion/ quarrel), a person understandably might react by killing the other party--unlawfully, although not maliciously, thereby lessening culpability. The mitigation doctrine addresses the fact that the defendant killed, not whether he or she had homicidal thoughts at the time. That is, the "human nature" issue arises where a defendant, in the heat of passion provoked by the victim, attacks him and causes death--intended or not. The Supreme Court’s time-honored analysis makes this point clear:

[T]he fundamental of the inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion . . . to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. [Citation.] (People v. Logan (1917) 175 Cal. 45, 49, emphasis added; quoted in People v. Valentine, supra, 28 Cal.2d at 139, and People v. Wickersham (1982) 32 Cal.3d 307, 326; see also People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [issue is whether defendant’s "reason was so disturbed by anger or outrage that he acted impulsively." (Emphasis added.)].)

    Inexplicably, however, 20th Century case law has identified an intent to kill element of voluntary manslaughter. This doctrine developed "without thoughtful examination[,] . . . stem[ming] from the offhand misreading of Peoplev. Freel . . . ." (People v. Cameron, supra, 30 Cal.4th at 604, fn. 8; see, e.g., Drown v. New Amsterdam Casualty Co. (1917) 175 Cal. 21, 24.) In one case, the Supreme Court stated the doctrine with reference to section 192’s language, but the point was simply to "predicat[e] intentionality on the statutory term ‘voluntary’ . . . ." (Cameron, supra at fn. 8, citing People v. Gorshen (1959) 51 Cal.2d 716, 732-733.)

    Gorshen did not explain why the intentionality "implicit" in the word "voluntary" was necessarily limited to homicidal rather than assaultive intent. Nor has any other Supreme Court decision directly addressed the distinction raised here. But in the absence of a Supreme Court decision rejecting (or even considering) this argument, the intent to kill "rule" has value only to the extent that its logic is persuasive. (People v. Dillon,supra, 34 Cal.3d at 473-474; County of San Bernardino v. Superior Court (1994) 30 Cal.App.4th 378, 388.) It is not, as noted in Cameron, supra, and People v. Shannon (1996) 46 Cal.App.4th 1365, 1369-1370.)

    Faced with the broad question posed here, Shannon observed that "[a]ppellant’s argument does make sense. How can a conviction of second degree murder not require an intent to kill while voluntary manslaughter, a less serious crime, requires an intent to kill? Nowhere in section 192, which defines voluntary manslaughter, is an intent to kill mentioned." Nevertheless, the court affirmed a second degree murder conviction, declaring itself bound by the intent to kill rule which it criticized. For several reasons, Shannon’s result was incorrect--despite Supreme Court case law declaring intent to kill as an element of voluntary manslaughter.

    1. Involuntary Manslaughter. The statutory description of involuntary manslaughter is not "an exclusive measure of the unlawful killings which can be treated as involuntary manslaughter[,]" given "the overarching general description of manslaughter." (People v. Cameron, supra, 30 Cal.App.4th at 605, emphasis in original.) Thus, an offense which would be deemed voluntary manslaughter but for the absence of an intent to kill is no less unlawful and therefore must be involuntary manslaughter. (Id. at 604-605; cf. ibid., fn. 8.) If the defendant, in a sudden quarrel or heat of passion based on adequate provocation, attacks the victim and causes death, the crime is manslaughter: Voluntary, if the defendant intended to kill the victim; involuntary, if not.

    2. Additional Voluntary Manslaughter Theory Based On Analysis Of Statutory Context. Decisions characterizing voluntary manslaughter as requiring an intent to kill have not examined this element in connection with relationships between murder, manslaughter, express and implied malice, although the issue raised here requires such an analysis. The Supreme Court’s explanation of those relationships in Doyell and Freel, supra (discussed above), is thus on point and is still good law.

    Theories of manslaughter are not strictly limited by the specific statutory descriptions of "voluntary" and "involuntary" manslaughter. (People v. Burroughs (1984) 35 Cal.3d 824, 835-836.) "‘[T]he basic definition set forth at the outset of Penal Code section 192 is of controlling significance--"Manslaughter is the unlawful killing of a human being, without malice."’ [Citation.]" (Id. at 836.) The courts may apply this principle where appropriate, even if it results in a manslaughter scenario not expressly stated in the statute or noted in previous cases. (People v. Cameron, supra, 30 Cal.App.4th at 604-605.)

    Even if "voluntary" implies "with intent to kill," a heat of passion killing is both "unlawful" and "without malice." (§ 192.) Logically, the defendant’s "voluntary"--in implied malice terms, "intentional" and "deliberate[]" (CALJIC No. 8.11)--act against the victim "upon a sudden quarrel or heat of passion" should be punished as voluntary manslaughter. That is so, whether the defendant specifically intended death or consciously disregarded its risk. In either event, the defendant has acted intentionally. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103.) Thus, Doyell can be reconciled with the "intent to kill" cases by recognizing a heat of passion killing in conscious disregard for life as an additional theory of voluntary manslaughter. (Cf. People v. Love (1980) 111 Cal.App.3d 98, 105-106 [implied malice involves "a voluntary choice to commit a person endangering act" while "not acting in the heat of passion or on adequate provocation"] (emphasis added).)

    3. Voluntary Manslaughter And Imputed Intent To Kill. When murder is committed with implied malice, "the law attribut[es] to the slayer the intent to kill, although such intent is not made manifest as a fact." (Peoplev. Doyell, supra, 48 Cal. at 95, emphasis added.) On the other hand, where an offense "‘absolutely requires’" a specific intent to kill, implied malice is insufficient. (People v. Lee (1987) 43 Cal.3d 666, 670, emphasis added.) Such an "absolute" requirement exists in connection with conspiracy to murder, assault with intent to commit murder, solicitation to commit murder and attempted murder. These "inchoate" offenses necessarily require an intent to kill, as the defendant’s target is logically a homicide. (People v. Swain(1996) 12 Cal.4th 593, 603-607.) But to the limited extent that the judicial requirement of an intent to kill in voluntary manslaughter is based on construction of section 192, it merely holds that the word "voluntary" implies such an intent. (People v. Cameron, supra, 30 Cal.App.4th at 604, fn. 8; People v. Gorshen, supra, 51 Cal.2d at 732-733.) No decision has held that section 192’s description of voluntary manslaughter "absolutely requires" a specific intent to kill so as to exclude implied malice theory. Thus, an "attributed" or imputed intent to kill should be sufficient.

    4. Voluntary Manslaughter And Modern View Of Implied Malice As Including Specific Intent. When the Supreme Court determined that "voluntary" manslaughter implies a specific intent to kill, case law apparently had recognized only one form of murder as requiring specific intent: express malice. Implied malice was not discussed in those terms. (See, e.g., People v. Doyell, supra, 48 Cal. at 95-96.) But while the voluntary manslaughter cases have simply repeated the "intent to kill" formulation over the years, murder cases have developed the concept of implied malice so that it now includes "the specific intent to do some act dangerous to human life . . . ." (People v. Swain, supra, 12 Cal.4th at 603, emphasis added; People v. Whitfield (1994) 7 Cal.4th 437, 450; In re Christian S. (1994) 7 Cal.4th 768, 780, fn. 4 [record unclear whether second degree murder based on express or implied malice; i.e., whether "trial court found that defendant intended to kill rather than to wound [the victim]."].) Indeed, that specific intent, coupled with an act causing death, is the very basis for the implication of malice. (Peoplev. Swain, supra, 12 Cal.4th at 603.) Thus, a court faced with the novel issue raised here must determine whether "voluntary" encompasses the modern notion of implied malice.

    5. Constitutional Implications. Given conflicting interpretations of the homicide statutes, a court must "choose the construction yielding the shorter sentence by resting on the venerable rule of lenity [citation], rooted in ‘"the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should[]"’ [citation]." (United States v. R. L. C. (1992) 503 U.S. 291, 305 [117 L.Ed.2d 559, 572, 112 S.Ct. 1329]; In re Christian S., supra, 7 Cal.4th at 780.) If possible, a statute must be interpreted so as to avoid an unconstitutional result. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509.) California law violates federal and state constitutional rights of equal protection and due process if it requires a second degree murder verdict where the defendant acted in the heat of passion but without the intent to kill. (U.S. Const., Amend. 14; Cal. Const., art. I, § 7, art. IV, § 16.)

    Because the issue involves deprivation of personal liberty--a defendant is subject to at least 15 years to life in prison (§ 190, subd. (a)), as opposed to a term of 2 to 11 years (§ 193, subds. (a) & (b))--the appropriate standard of review is strict scrutiny. (People v. Jacobs (1984) 157 Cal.App.3d 797, 801. "[T]he state must establish that a compelling interest justifies the law and that the distinctions drawn are necessary to further that purpose. [Citations.]" (Ibid.)

    The defendant must show that s/he is "similarly situated" to passion/quarrel defendants who would be convicted of voluntary manslaughter, as opposed to murder, because of the intent to kill. (Ibid..) And as a general matter "‘[p]ersons convicted of different crimes are not similarly situated for equal protection purposes.’ [Citations.]" (Id. at 803, emphasis in original.) But implied malice murder and voluntary manslaughter are functionally identical, as far as the determination of this issue is concerned. In both cases, the defendant acted with adequate provocation in killing a victim. The only difference is in the defendants’ mens rea-- i.e., the difference between express malice and implied malice (in the absence of provocation). "Rather than defining different mens reas, however, express and implied malice are really a shorthand way of denoting the requisite mental state for murder known as malice aforethought. [Citations.]" (Peoplev. Brown (1995) 35 Cal.App.4th 708, 715.)

    Thus, in the context of the issue here, the two offenses are of "intrinsically the same quality . . . ." (Skinner v. Oklahoma(1942) 316 U.S. 535, 541 [86 L.Ed. 1655, 1660, 62 S.Ct. 1110].) The state may have a compelling interest in imposing increased punishment because of an absence of provocation, and because of an intentional as opposed to unintentional killing. But there is no corresponding interest in providing for increased punishment where provocation is shown, simply because the defendant’s intent to kill is implied instead of proved. To paraphrase the Supreme Court:

the state has no legitimate interest in obtaining a conviction of murder when, by virtue of defendant’s [act in sudden quarrel or heat of passion], the jury entertains a reasonable doubt whether defendant harbored malice. . . . . The vice is the element of malice; in its absence the level of guilt must decline. (People v. Flannel (1979) 25 Cal.3d 668, 680.)

    The following hypothetical situations demonstrate both the "sufficient similarity" between offenses and the fact that the law’s distinctions are not even rational:

    Assume in all cases that defendants A and B each deliberately stab a separate victim, but B also intends to kill the victim. Where the victims live, the sole difference between the two defendants reasonably makes B more culpable. A is guilty of assault with a deadly weapon, a wobbler offense subject to a maximum 4 years in prison. (§ 245, subd. (a)(1).) B is guilty of attempted murder, with a sentence of 5, 7 or 9 years. (§§ 664, subd. (a), 187, subd. (a)).

    If the victims die, the sole difference between the two defendants generally has no effect; both are guilty of second degree murder, with implied and express malice, respectively, subject to 15 years to life. (§§ 187, subd. (a), 189.) (In the first two examples, B also has a potential for greater punishment if the intent to kill arose from premeditation.)

    Whereas so far the intent to kill as opposed to injure understandably may trigger increased culpability, the victim’s provocation and defendant’s resulting heat of passion/sudden quarrel rationally would have the opposite effect, if any. That is so, when the victims live. A and B are still guilty of assault and attempted murder, respectively. But both defendants stand to benefit from several state court rules which will be applied with others at sentencing. (Rule 414(a)(7) [criterion favoring probation: "Whether the crime was committed because of an unusual circumstance, such as great provocation . . . ."], rule 423(a)(3) [same factor as mitigating circumstance, supporting lower term], and arguably rule 423(a)(4) [mitigating circumstance: " . . . the criminal conduct was partially excusable for some . . . reason not amounting to a defense"].)

    Last modification: Same as the previous situation, but the victims die. Now everything which made sense turns upside down. A--who did not intend to kill--is guilty of second degree murder, as if there had been no mitigating factor; nor is she entitled to the benefit of the pertinent court rules. (rule 403; People v. Arviso (1988) 201 Cal.App.3d 1055, 1058.) In any event, the 15 to life term is set by statute; a mitigated term is not an option. In a rather sharp contrast, B--who intended to kill--is guilty of voluntary manslaughter, with a determinate term of 3, 6 or 11 years (§§ 192, subd. (a), 193) and the benefits of the same court rules.

    The only explanation for the difference here is the very law being challenged, so strict scrutiny is appropriate. But far from demonstrating a compelling state interest, this scenario cannot even be deemed rational. (Cf. In re Christian S., supra, 7 Cal.4th at 780, fn. 4: A rule "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." (Emphasis in original.) See also United States v. Paul (9th Cir. 1994) 37 F.3d 496, 499, fn. 1 [same analysis re heat of passion in connection with federal manslaughter statute identical to California’s].)

    Indeed, such an inexplicably disparate approach is neither "procedurally fair" nor "reasonably related to a proper legislative goal" and therefore violates due process as well as equal protection. (People v. Cooper(1996) 43 Cal.App.4th 815, 829.) It may be avoided, of course, simply by construing the homicide laws to provide that passion/provocation is not dependent on a finding of intent to kill but may also apply to mitigate implied malice, whether to involuntary or voluntary manslaughter.

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