Supreme Court of California Justia
Citation 47 Cal. 4th 537, 213 P.3d 652, 98 Cal. Rptr. 3d 113

People v. Moye

Filed 8/24/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S157980
v.
Ct.App. 2/8 B192331
ALEXANDER MOYE,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. KA074073
Defendant, who bludgeoned his victim to death with a baseball bat, was
convicted of second degree murder. The jury was instructed on, and rejected, both
a justifiable homicide defense based on reasonable self-defense, and unreasonable
or imperfect self-defense, which would have supported conviction of the lesser
included offense of voluntary manslaughter. The trial court refused a defense
request to further instruct the jury on a sudden quarrel/heat of passion theory of
voluntary manslaughter. The Court of Appeal disagreed with this ruling, found the
instructional error prejudicial, and on that basis reversed defendant‘s murder
conviction.
We conclude the evidentiary record supports the trial court‘s determination
that there was insubstantial evidence to warrant instruction on a sudden
quarrel/heat of passion theory of voluntary manslaughter. In particular, substantial
evidence was lacking that defendant killed while subjectively under the actual
influence of ―a strong passion aroused by a ‗provocation‘ sufficient to cause an
1


‗ ―ordinary [person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.‖
[Citation.]‘ [Citations.]‖ (People v. Breverman (1998) 19 Cal.4th 142, 163
(Breverman).) Defendant‘s own uncontested testimony established he did not act
rashly, or without due deliberation and reflection, or from strong passion rather
than from judgment, when he claimed to have used the bat defensively to allegedly
fend off an attack from the homicide victim.
In a murder case, trial courts are obligated to instruct the jury on defenses
supported by substantial evidence that could lead to conviction of the lesser
included offense of voluntary manslaughter, even where the defendant objects, or is
not, as a matter of trial strategy, relying on such a defense. (Breverman, supra, 19
Cal.4th at pp. 162-163.) But no principle of law required the trial judge below to
disregard all the evidence bearing on defendant‘s state of mind at the time of the
killing in order to find the jury should consider whether he subjectively killed
under the heat of passion, when no substantial evidence supported that theory of
manslaughter, and the only evidence actually introduced on the point, the
defendant‘s own uncontested testimony, was plainly to the contrary.
Assuming arguendo it was error to fail to instruct on heat of passion
voluntary manslaughter on this factual record, we find any such error harmless
under the applicable Watson test (People v. Watson (1956) 46 Cal.2d 818, 836
(Watson)). Here, the jury considered virtually all of the defense evidence bearing
on defendant‘s state of mind and the question whether he harbored malice when it
entertained his claim of unreasonable or imperfect self-defense. Having rejected
that claim, the jury likewise rejected the factual basis for a finding of provocation
legally necessary to support a heat of passion/voluntary manslaughter defense.
Upon examining the entire cause, including the evidence (Cal. Const., art. VI,
§ 13), it is not ―reasonably probable‖ defendant would have obtained a ―more
2
favorable‖ outcome had the instructional error not occurred. (Watson, supra, at
p. 836.) Accordingly, the judgment of the Court of Appeal will be reversed.
FACTS AND PROCEDURAL BACKGROUND
Defendant Alexander Moye and codefendants Daniel Avendano and
George Lopez were jointly tried for the murder of Mark Urrutia. The jury
convicted defendant of second degree murder (Pen. Code, § 187, subd. (a)),1
further finding that he personally used a deadly weapon (a baseball bat) in the
commission of the murder. (§ 12022, subd. (b)(1).)2 In a bifurcated court trial,
defendant‘s prior felony convictions of assault with a deadly weapon (§ 245,
subd. (a)), alleged as a serious felony within the meaning of the ―Three Strikes‖
law (§ 667, subds. (a)-(i)), and receiving stolen property (§ 496, subd. (a)), were
found true. Defendant was sentenced to state prison for 15 years to life for second
degree murder, doubled under the Three Strikes law (§ 667, subds. (a)-(i)), with a
five-year enhancement for the prior serious felony allegation and a consecutive
one-year enhancement for use of a deadly weapon, for a total term of 36 years to
life.
The Fight on Saturday Evening
On Saturday evening, February 11, 2006, defendant was living with his
girlfriend, Kandie Sanchez, her mother, and her daughter, Jessica, at the Sanchez
residence on Paso Real in Rowland Heights. According to defendant, he got into
an argument with Kandie‘s mother, who wanted him to leave. He then started
arguing with Jessica, who commented that she was going to summon her
boyfriend, Ronnie Urrutia. Ronnie had a brother, Mark Urrutia, the homicide

1
All references are to the Penal Code unless otherwise indicated.
2
Codefendants Avendano and Lopez were acquitted of all charges.
3


victim in this case. Ronnie and Mark lived approximately one block from the
Sanchez residence.
At some point in the evening, Ronnie received a phone call from his
girlfriend, Jessica, informing him that defendant was bothering her. She then
called back to tell Ronnie that defendant was waiting to fight him in front of the
Sanchez residence. Ronnie went to the Sanchez house with his brother Mark and
three friends, Carlos, Ruben and Rudy. Upon the group‘s arrival, defendant and
Ronnie got into an argument that quickly escalated into a fistfight on the
neighbor‘s front lawn. At one point Ronnie‘s brother Mark got involved, twice
hitting or tapping defendant in the back with a silver and blue aluminum baseball
bat he had retrieved from their car. Two of defendant‘s associates were also
present, codefendants Avendano and Lopez. Although they did not become
directly involved in the fistfight, with their assistance defendant came into
possession of a kitchen knife and began chasing Ronnie with the knife, prompting
Ronnie‘s friend Carlos to hit defendant twice in the arm with a ski pole. When
someone yelled that the police were coming, the fight ended and Ronnie, Jessica,
Mark and their friends drove back to the Urrutia residence.
Sheriff‘s deputies arrived after the fight was over and spoke with defendant
in front of the Sanchez residence. Defendant characterized it as a minor argument
and declined any medical attention or interest in reporting a crime because he was
on felony probation and did not want to get into further trouble. He did not appear
seriously injured to the officers. One deputy testified recalling seeing a slight
blood residue on his lip, but observed no other injuries, and no swollen or black eye.
The Homicide on Sunday Morning
The next morning, Sunday, February 12, 2006, Carlos, his brother Jose, and a
friend, Santos, walked past the Sanchez residence on Paso Real looking for Carlos‘s
eyeglasses. They saw defendant, codefendants Avendano and Lopez, and others in
4
the front yard, and heard one of the men, possibly defendant, make threatening
remarks as they walked by. A white car was parked in the Sanchez driveway. Carlos
and the others kept walking past the house. Carlos then used his cell phone to call
Mark, who, together with his friend Ruben, was going to meet up with Carlos and the
others on foot. Carlos told Mark not to walk down Paso Real because defendant and
his companions had been seen on the street and were looking for him. Carlos agreed
they would meet Mark and Ruben on Desire Street, a private street adjacent to Paso
Real.
Meanwhile, defendant drove alone to a nearby liquor store to buy cigars. En
route he saw Mark, whom he thought was Ronnie. Upon returning to the Sanchez
residence, defendant told Avendano and Lopez to get into his car, and the three
began driving around looking for ―Ronnie.‖
Carlos and his companions took a shortcut or path through the grounds of a
nursery as they headed to meet Mark and Ruben on Desire Street. While walking
down the path they saw defendant drive past them and turn onto Desire. Carlos
and his companions ran back down the path. Carlos then tried calling Mark again
several times to warn him to avoid Desire Street. He got no answer.
When they emerged from the path, Carlos‘s group saw defendant‘s car
stopped on Desire Street with all of its doors open. They saw defendant and one
of his companions jumping over a fence and heading back to the car. Defendant
was holding two bats, or a bat and another long object, which he threw into the
car. Defendant and his companions seemed nervous as they jumped into the car
and left the scene. Carlos then received a call on his cell phone from Ronnie, who
said that his brother Mark was dying.
Ruben testified that despite his and Mark‘s best efforts to avoid defendant,
he, Avendano and Lopez spotted them, sped toward them in the white car as if
trying to run them down, then abruptly stopped the car in the middle of the street,
5
jumped out and began chasing them. Ruben explained that after Mark had received
the cell phone call from Carlos, he had retrieved the silver and blue aluminum bat
for protection. Ruben heard defendant say, ―Come on, let‘s go, let‘s get these
motherfuckers.‖ Mark and Ruben ran for a chain link fence. Mark jumped the
fence first; Ruben tried to jump over it but his hands and sweater got caught on the
fence. He managed to roll over the fence and saw Mark, who had kept running.
Ruben thought he saw Mark drop his bat as he jumped over the fence. Defendant
and his codefendants also jumped over the fence; defendant and Avendano chased
Mark while Lopez chased Ruben. Mark was running ahead of Ruben as they split
up.
Ruben ran to a nearby shed for cover and soon heard voices nearby,
thumping sounds, then running and yelling and car doors slamming as defendant
and his companions drove off.
When Ruben and the others found Mark, he was facedown on the ground,
bleeding badly with his breathing labored. His front upper teeth were broken off,
as if he had been hit hard in the mouth. They saw Mark‘s ―brains hanging out of his
head and — he didn‘t look right,‖ and they could tell he was dying.
An autopsy revealed that Mark sustained at least four blows to the head and
three more to other areas of his body. In one area of his head, the force of a blow
had shattered his skull into multiple small fragments. The cause of death was blunt
force trauma to the head.
No weapons were found in the backyard near where Mark was found lying.
Mark‘s aluminum bat was later recovered from a storm drain a short distance away.
DNA analysis of blood samples taken from the bat matched defendant‘s and Mark‘s
DNA profiles. Defendant‘s blood was found on the handle of the bat; the victim‘s
blood was found on the barrel or upper portion of the bat.
6
Christine Lopez was standing outside her home on Honore Street on the
Sunday morning in question when she saw a white car carrying three men that she
did not know drive by. Christine recalled that the car was moving fast and the
men appeared to be laughing or joking loudly. As the car drove past her, she
thought she saw the men throw something out of the car against the curb, and she
heard a metallic noise. The storm drain from which the bat was recovered is in
front of Christine‘s house. She also heard one of the men say they had ―lit him
up,‖ or words to that effect. Christine identified defendant and Avendano as two
of the three men she had seen in the white car as it drove by.
Defendant’s Testimony
The defense consisted primarily of defendant testifying in his own behalf.
He admitted killing Mark Urrutia with a baseball bat. He claimed that just prior to
the murder, he saw Mark and Ruben, mistakenly thought Mark was his brother
Ronnie, and drove up to them in order to talk, try to resolve things, and avoid a
continuing conflict, since Ronnie was dating defendant‘s girlfriend‘s daughter
Jessica and defendant and Ronnie were likely to see each other again. Defendant
asked Avendano and Lopez to accompany him to talk with Ronnie (i.e., Mark) and
Ruben because he did not want the two men ―jumping [him]‖ while he was alone.
Defendant claimed that as he, Avendano and Lopez pulled up to the two
men, Mark kicked his car, after which Mark and Ruben jumped over a fence.
Defendant testified, ―They jumped over the fence and I exited my car, you know,
because I was looking to see if there was any damage done to my car. I got kind
of upset he kicked my car. So I wanted to see where he was going so that way I
could call the police and tell them, you know, this guy kicked my car.‖ Defendant
testified he only went over the fence intending ―to see where he [Mark] went.‖
Defense counsel asked defendant on direct examination, ―And at some point
in time did you catch up with Mark in the field?,‖ to which defendant replied,
7
―Yes.‖ When asked, ―And what happens at that point?,‖ defendant gave the
following account of events:
―[Defendant] As soon as I approach [Mark] I‘m within probably three to
four feet of him and he turns around real fast and had kind of like a smirk on his
face and [he] said, ‗Yeah, now I got you,‘ and he had a bat in his hands.
―[Counsel] Is that the first time you noticed the bat?
―[Defendant] Yes.
―[Counsel] And what happens at that point?
―[Defendant] He attacked me with the bat.
―[Counsel] And did he hit you again with the bat?
―[Defendant] Yes, he hit me several times.
―[Counsel] And where on your person did you get hit?
―[Defendant] On my left forearm, because I was blocking. I didn‘t want to
get hit in the face. And like on the side of my arms, and then my hands.
―[Counsel] And what happens at that point?
―[Defendant] After a couple like four or five, six swings, he — I grabbed
the bat from him, I got the bat from him, and then right when I got it from him,
that‘s when he tried to rush me, like, to attack me.
―[Counsel] And what happens then?
―[Defendant] I hit him with the bat.
―[Counsel] And do you know where you hit him with the bat?
―[Defendant] In his arm. He put his arm up.
―[Counsel] And what happens at that point?
―[Defendant] He still tries to attack me.
―[Counsel] And he keeps coming at you?
―[Defendant] Yeah. Every time he came at me I hit him again with the bat.
―[Counsel] And about how many times total do you think that you hit him?
8
―[Defendant] Honestly, when he was hitting me I, like, wasn‘t, like, in the
right state of mind. I was worried about getting hit. I didn‘t want to get beat down
and possibly be killed, so I was just worried about getting hit. And then when I got
the bat from him, I was worried about getting hit again, because he kept coming at
me. So I kept hitting him until he fell.
―[Counsel] And when he fell what happened?
―[Defendant] When he fell I noticed — I didn‘t hit him anymore but I
noticed he was bleeding, and when I seen him bleeding, I got kind of scared.
―[Counsel] And did you run back to the car at that time?
―[Defendant] Yes.
―[Counsel] Did you take the bat with you?
―[Defendant] Yes.
―[Counsel] And when you got back, did you go back over the fence?
―[Defendant] Yes.
―[Counsel] When you got back to the car, were [codefendants] Danny and
George there or were they —
―[Defendant] They were standing by the car.
―[Counsel] And what happens at that point?
―[Defendant] We all got back into the car and I threw the bat on the
passenger side floor.‖
Defendant testified he was driving as the three left the scene; that he was
―kind of shook up about everything that happened‖; and that he threw the bat from
the car into a gutter at ―the first spot I seen to throw [it]‖ before dropping off
Avendano and Lopez at a friend‘s house.
The Trial Court’s Ruling
The trial court explained its reasons for refusing the requested instructions
on heat of passion voluntary manslaughter in these terms: ―I just don‘t see it as
9
being heat of passion. I see it as a self-defense. But from your own client‘s mouth
he says, ‗I want to make peace, I‘m not angry, I know everything is fine. I know
I‘m going to have to deal with this guy because he‘s hooked up with the female
that I‘m going to be seeing, I‘m going to be around, whether I like it or not. I‘m
trying to make everything right. The only reason I have my buddies with me is so
that if I‘m assailed I will not be without recourse.‘ And the only hint of anger is
when he says, ‗The guy [Mark] slapped [sic] my car.‘ ‖
The court explained further, ―I‘m not trying to be a juror here. But when I
say ‗viable,‘ it‘s not my job to decide exactly in those terms. I don‘t think that
there is substantial or even nontrivial, put it that way, evidence of a reduced degree
of culpability based on that [heat of passion] theory. [¶] I just — listening
carefully to Mr. Moye‘s testimony which will provide the only basis for that. He
didn‘t say it. He could have. He didn‘t. If he had said, ‗I became enraged, I
became emotional,‘ et cetera, ‗I became hot blooded,‘ that‘s what the heat of
passion is. He said none of those things. [¶] He said, ‗I was defending my life.
That‘s what I was doing. I thought he was going to kill me so I hit him until he
stopped moving.‘ That‘s self-defense. That‘s not heat of passion. [¶] He didn‘t
say, ‗I became angry because he hit [sic] my car or because he beat me up the
night before.‘ That‘s not what he did. I‘m not saying you can‘t make reference to
those facts and they certainly can play into whether he was reasonable in his belief
that he was going to be hurt. And it‘s also true that the beating of the night before
and all those things can play into whether he is honest about his fear. [¶] But they
don‘t get you to heat of passion when he says, ‗I don‘t have any heat of passion.
I‘m self-defense.‘ ‖
The jury convicted defendant of second degree murder, finding that he
personally used a deadly weapon (a baseball bat) in the commission of the offense.
Defendant appealed, arguing the trial court prejudicially erred by failing to instruct
10
on a sudden quarrel/heat of passion theory of voluntary manslaughter. The Court
of Appeal agreed, reversed defendant‘s murder conviction, and thereafter denied
the People‘s petition for rehearing. We granted the People‘s petition for review.
DISCUSSION
Instructional Error
Defendant argues the voluntary manslaughter instructions the trial court
gave were incomplete because they did not include instruction on sudden
quarrel/heat of passion despite support for that theory of manslaughter in the
evidence. The trial court instructed the jury on voluntary manslaughter in
connection with imperfect or unreasonable self-defense, but found insubstantial
evidence to further instruct on sudden quarrel/heat of passion as requested by the
defense. The People, in contrast, urge that the trial court‘s rejection of heat of
passion instructions was proper given the state of the evidence at the close of the
evidentiary phase. Assuming arguendo it was error to refuse such instructions, the
People argue further such error was nonprejudicial under the applicable Watson
harmless error test.
―In criminal cases, even absent a request, the trial court must instruct on
general principles of law relevant to the issues raised by the evidence. (People v.
Breverman [, supra,] 19 Cal.4th [at p.] 154.) This obligation includes giving
instructions on lesser included offenses when the evidence raises a question
whether all the elements of the charged offense were present, but not when there is
no evidence the offense was less than that charged. (Ibid.) The trial court must so
instruct even when, as a matter of trial tactics, a defendant not only fails to request
the instruction, but expressly objects to its being given. (Ibid.; see also People v.
Barton (1995) 12 Cal.4th 186, 196, 199-203 [trial court must instruct on heat of
passion and unreasonable self-defense theories of manslaughter, if supported by
11
evidence, even when defendant objects on the basis that such instructions would
conflict with his defense].)‖ (People v. Koontz (2002) 27 Cal.4th 1041, 1085.)
― ‗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 lacks malice is guilty of . . . voluntary manslaughter.
(§ 192.)‘ (People v. Barton (1995) 12 Cal.4th 186, 199 (Barton).) Generally, the
intent to unlawfully kill constitutes malice. (§ 188; People v. Saille (1991)
54 Cal.3d 1103, 1113; see In re Christian S. (1994) 7 Cal.4th 768, 778-780
(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 []Christian S.[, supra, ]7 Cal.4th 768;
[People v. ]Flannel [(1975)] 25 Cal.3d 668).‘ (Barton, supra, 12 Cal.4th at
p. 199.) 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).‖ (Breverman, supra, 19 Cal.4th
at pp. 153-154.)
―[N]either heat of passion nor imperfect self-defense is an element of
voluntary manslaughter‖ that must be affirmatively proven. (People v. Rios (2000)
23 Cal.4th 450, 454.) Rather, they are ―theories of partial exculpation‖ that reduce
murder to manslaughter by negating the element of malice. (People v. Sinclair (1998)
64 Cal.App.4th 1012, 1016.)
A heat of passion theory of manslaughter has both an objective and a
subjective component. (People v. Manriquez (2005) 37 Cal.4th 547, 584; People
12
v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele); People v. Wickersham (1982) 32
Cal.3d 307, 326-327 (Wickersham).)
― ‗To satisfy the objective or ―reasonable person‖ element of this form of
voluntary manslaughter, the accused‘s heat of passion must be due to ―sufficient
provocation.‖ ‘ (People v. Wickersham, supra, 32 Cal.3d at p. 326.)‖ (People v.
Gutierrez (2002) 28 Cal.4th 1083, 1144.) ―[T]he 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), 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; 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; People v.
Valentine (1946) 28 Cal.2d 121, 139.)‖ (People v. Lee (1999) 20 Cal.4th 47, 59
(Lee).)
To satisfy the subjective element of this form of voluntary manslaughter,
the accused must be shown to have killed while under ―the actual influence of a
strong passion‖ induced by such provocation. (Wickersham, supra, 32 Cal.3d at
p. 327.) ―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.‘
[Citations.]‖ (People v. Barton, supra, 12 Cal.4th at p. 201.) ― ‗However, if
sufficient time has elapsed between the provocation and the fatal blow for passion
13
to subside and reason to return, the killing is not voluntary manslaughter . . . .‘
(Wickersham, supra, 32 Cal.3d at p. 327.)‖ (Breverman, supra, 19 Cal.4th at
p. 163.)
The jury in this case was instructed both on justifiable homicide based on
reasonable self-defense, which is a complete defense to murder, and on
manslaughter based on unreasonable or imperfect self-defense, which reduces
murder to voluntary manslaughter. (Breverman, supra, 19 Cal.4th at pp. 153-154.)
At the close of evidence, the defense also requested an instruction on sudden
quarrel/heat of passion voluntary manslaughter. The trial court refused to give the
instruction, explaining, ―If there is evidence — sufficient, nontrivial evidence of
heat of passion provoked by the victim in such a way that a reasonable person
would be thrown into a killing rage, you have a voluntary manslaughter. I
understand that [theory]. I just don‘t believe it‘s been shown here.‖
The trial court went on to explain why it would also not be giving an
instruction on the ―cooling-off period‖ that can negate a heat of passion voluntary
manslaughter defense. The court pointed out that defendant himself had testified
he was only looking for Ronnie that morning to ―make peace‖ because Ronnie
was the boyfriend of Jessica, defendant‘s girlfriend‘s daughter (defendant testified
he mistakenly thought Mark was Ronnie when he encountered Mark on the street).
The court also saw no evidence of anger or passion in defendant spilling over from
the fight the previous evening into the next day. The trial court did make clear in
its ruling, however, that the impact of the previous evening‘s fight on defendant‘s
state of mind the following morning was relevant on the question whether he
reasonably or unreasonably believed in the need to defend himself against Mark,
and thus on the ultimate question whether he harbored malice.
Defense counsel argued an instruction on sudden quarrel/heat of passion
manslaughter was required in light of defendant‘s testimony that Mark kicked his
14
car when defendant and his companions confronted Mark and Ruben on the street.
Counsel argued, ―Just imagine the affront when . . . [w]hen you are going there to
make peace and before you have an opportunity to do so the person attacks your
vehicle.‖ When counsel next suggested defendant‘s car could be considered just
an extension of himself, the court remarked, ―I‘m going to save you the
embarrassment of making that argument. We‘re smiling at one another, the record
should reflect. We‘re both semi serious here. At least I am. I don‘t see the facts,
but again I‘ll give you every opportunity to convince me.‖
We agree with the People that evidence of the fight on Saturday evening in
which Mark and defendant were both involved did not itself constitute legally
sufficient provocation to require instruction on sudden quarrel/heat of passion
voluntary manslaughter in connection with the killing of Mark the following day.
Defendant himself testified that by Sunday morning he had ―cooled off‖ and was
no longer upset about the previous evening‘s fight. (See People v. Dixon (1995) 32
Cal.App.4th 1547, 1551-1552.) Both the trial court and Court of Appeal
recognized that the evidence of the fight on the previous evening, standing alone,
would not constitute sufficient legal provocation to support a heat of passion
defense.
We further agree with the People that the victim‘s asserted act of kicking
defendant‘s car on Sunday morning just before defendant and his codefendants gave
chase likewise did not itself constitute legally sufficient provocation to cause an
ordinarily reasonable person to act out of a heat of passion and kill Mark in
response. (In re Christian S., supra, 7 Ca1.4th at p. 779, fn. 3; People v. Najera
(2006) 138 Cal.App.4th 212, 226.) Indeed, defendant himself testified Mark‘s
conduct at most aroused in him a desire to report the car-kicking incident to the
police; he testified he chased Mark over the fence only to ―see where he went‖ so
he could relate that information to the police. Here too, both the trial court and the
15
Court of Appeal recognized that the alleged car-kicking incident, if viewed in
isolation, would not constitute sufficient legal provocation to support a heat of
passion defense.
In short, neither the fight on the previous night, nor the car-kicking incident on
Sunday morning shortly before the homicide, themselves constituted sufficient legal
provocation without the necessary cooling off period to warrant a heat of passion
instruction. Both courts also agreed that nothing in the record, including
defendant‘s own narrative of events leading up to the homicide, suggested he was
actually, subjectively, under the influence of a ―strong passion‖ resulting from either
of those occurrences when he killed Mark. (Wickersham, supra, 32 Cal.3d at
p. 327.)3
The Court of Appeal‘s determination that a heat of passion instruction was
required in this case turned solely on what assertedly occurred when, according to
defendant, he caught up with Mark after chasing him over the fence and through a
field and Mark turned and ―attacked‖ him. Ruben, who had split up from Mark and
testified he was himself being chased by one of the codefendants, was not a
percipient witness to the fatal altercation. Defendant himself was the only living
eyewitness to his final encounter with the victim.
According to defendant, when he caught up to Mark and first noticed Mark
was holding a bat, Mark turned, and with a smirk on his face stated, ―Yeah, now I
got you,‖ as he attacked defendant with the bat, hitting him on his arms and hands
as defendant sought to defend himself and avoid being hit in the face. After four or
five swings, defendant managed to grab the bat from Mark. At that point Mark
rushed at defendant, so defendant hit him with the bat, striking him on his arm.

3
Indeed, defendant testified that at the time he first encountered Mark and
Ruben on Sunday morning, he had the calm presence of mind to be driving slowly in
a school zone in case school was in session (it was a Sunday).
16


Mark came at him again; according to defendant, each time he did so, defendant hit
him again in self-defense. True, defendant did at one point in his testimony state
he was not ―in the right state of mind.‖ But he immediately explained what he
meant by that statement — he was worried about getting hit by Mark because he
did not want to ―get beat down and possibly be killed.‖ Holding the bat with two
hands, defendant met each advance by Mark with a defensive swing of the bat
until the victim fell to the ground and could attack him no longer.
The Court of Appeal nonetheless concluded on this record that defendant‘s
testimony, together with the events that transpired after defendant chased and
caught Mark and Mark turned and attacked him, required the giving of an
instruction on sudden quarrel/heat of passion voluntary manslaughter. The court
reasoned, ―Nevertheless, the final incident with Mark wielding the bat, could
qualify as adequate provocation. . . . [S]ufficient provocation may be verbal or
physical. According to [defendant‘s] testimony [the] victim turned to [him] with
bat in hand and said, ‗Yeah, now I‘ve got you.‘ The victim‘s demeanor and words
along with the fact that he was carrying a bat and attacked [defendant] with the bat
is sufficiently provocative to cause an ordinary person of average disposition to act
rashly and without due deliberation or reflection. Regarding whether the
subjective element was satisfied, [defendant] testified, ‗I was defending my life.
That‘s what I was doing. I thought he was going to kill me so I hit him until he
stopped moving.‘ [Defendant‘s] testimony shows he was mainly concerned with
defending himself. ‗I didn‘t want to get beat down and possibly killed, so I was
just worried about getting hit. And then when I got the bat from him, I was
worried about getting hit again, because he kept coming at me. So I kept hitting
him until he fell.‘ If believed, it is evident that [defendant] was in fear for his life
at the time he was hitting Mark with the bat.‖ (Italics added.)
17
We cannot agree with the Court of Appeal‘s conclusion that instruction on
a sudden quarrel/heat of passion theory of voluntary manslaughter was required on
the facts of this case. As the trial court correctly concluded, substantial evidence
that defendant acted while under ―the actual influence of a strong passion‖
(Wickersham, supra, 32 Cal.3d at p. 327) in response to legally sufficient
provocation, such as caused him to ― ‗act rashly or without due deliberation and
reflection, and from this passion rather than from judgment‘ ‖ (id. at p. 326) was
lacking in this case.
―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, original italics; see also People v. Bacigalupo
(1991) 1 Cal.4th 103, 127; People v. Ramos (1982) 30 Cal.3d 553, 582.)
‗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, quoting People v. Carr (1972)
8 Cal.3d 287, 294; accord, Barton, supra, 12 Cal.4th 186, 201, fn. 8 [‗evidence
that a reasonable jury could find persuasive‘].)‖ (Breverman, supra, 19 Cal.4th at
p. 162.)
In the face of defendant‘s own testimony, no reasonable juror could
conclude defendant acted ― ‗ ―rashly or without due deliberation and reflection,
and from this passion rather than from judgment‖ ‘ [citations]‖ (Breverman, supra,
19 Cal.4th at p. 163) when, according to defendant, he responded to Mark‘s attack
with the baseball bat by grabbing the bat from him and using it to defend himself
from Mark‘s continuing advances. The thrust of defendant‘s testimony, in every
particular, was that he approached Mark and Ruben with peaceful intentions,
18
thinking Mark was his brother Ronnie, intending to talk things out and resolve any
lingering hostility that might have carried over from the previous evening‘s
altercation. Although defendant did testify he was not in a ―right state of mind‖
when Mark thereafter turned and attacked him after the chase, he immediately
explained he was referring to his thought processes being caught up in the effort to
defend himself from Mark. Defendant took great pains in his testimony to justify
each blow he landed on Mark with the bat as a direct, defensive response to
successive advances by Mark during his attack on defendant. Defendant testified,
―Every time he came at me I hit him again with the bat.‖
In short, the thrust of defendant‘s testimony below was self-defense — both
reasonable self-defense (a complete defense to the criminal charges), and
unreasonable or imperfect self-defense (a partial defense that reduces murder to
manslaughter). There was insubstantial evidence at the close of the evidentiary
phase to establish that defendant ―actually, subjectively, kill[ed] under the heat of
passion.‖ (Steele, supra, 27 Cal.4th at p. 1252; Wickersham, supra, 32 Cal.3d at
pp. 326-327.) The only testimonial evidence on the point, substantial or
otherwise, came from defendant himself given his decision to take the stand and
testify in his own defense. His only claim was that he acted out of self-defense in
using the bat to thwart Mark‘s continuing advances. He provided a blow-by-blow
recounting of events in which he characterized every swing he took with the bat as
a defensive response to each of Mark‘s successive advances.
A trial court has a duty to instruct on general principles of law that are
―closely and openly connected to the facts before the court and that are necessary
for the jury‘s understanding of the case.‖ (People v. Montoya (1994) 7 Cal.4th
1027, 1047.) But no principle of law required the trial judge below to disregard the
evidence in order to find that the jury should consider whether defendant
subjectively killed in the heat of passion, when no substantial evidence supported
19
that theory of manslaughter, and the evidence actually introduced on the point—the
defendant‘s own testimony—was to the contrary.
Nothing in this court‘s decision in Breverman, supra, 19 Cal.4th 142,
warrants a different conclusion. The facts of Breverman are distinguishable from
those here before us. In that case, an angry group of at least a dozen men ―taunted
the 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.‖ (Id. at p. 148.) We concluded on those
facts that it was error not to give instructions on both heat of passion and
unreasonable self-defense theories of manslaughter. With regard to heat of
passion, we explained, ―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 [the] 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.‖ (Id. at pp. 163-164, fn. omitted.)
Nothing in Breverman suggests an instruction on heat of passion is required
in every case in which the only evidence of unreasonable self-defense is the
circumstance that a defendant is attacked and consequently fears for his life. In
20
Breverman there was affirmative evidence that the defendant panicked in the face
of an attack on his car and home by a mob of angry men and had come out
shooting, and continued shooting, even after the group had turned and ran. ―At
one point in his police statement, defendant suggested that he acted in one
continuous, chaotic response to the riotous events outside his door.‖ (Breverman,
supra, 19 Cal.4th at p. 164, italics added, fn. omitted.) Here, in contrast,
defendant testified he acted deliberately in seeking to defend himself from each
successive advance by the victim who, defendant claimed, turned and attacked
him once defendant chased him down and cornered him. With regard to evidence
of the actor‘s state of mind bearing on the question of malice, the facts of
Breverman and this case are inapposite.
―[N]o fundamental unfairness or loss of verdict reliability results from the
lack of instructions on a lesser included offense that is unsupported by any
evidence upon which a reasonable jury could rely.‖ (People v. Holloway (2004)
33 Cal.4th 96, 141.)
Prejudice
Assuming arguendo that it was error for the trial court to fail to instruct the
jury on a heat of passion theory of voluntary manslaughter in addition to the
instructions that were given on imperfect self-defense manslaughter, the People
urge us to find such error harmless under the Watson test (Watson, supra, 46
Cal.2d at p. 836), made applicable to instructional errors of this sort in California
trials by Breverman, supra, 19 Cal.4th at pages 177-178. We agree that even if it
was error to fail to instruct on heat of passion voluntary manslaughter on this
record, any such error was harmless as it is not reasonably probable defendant
would have obtained a more favorable outcome had the jury been so instructed.
(Id. at p. 178.)
21
As was explained in Breverman, supra, 19 Cal.4th 142, ―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.) 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, , italics added, quoting People v. Carr, supra, 8 Cal.3d 287, 294.) 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;
see also Wickersham, supra, 32 Cal.3d 307, 324.)
―Appellate review under Watson, on the other hand, takes an entirely
different view of the evidence. Such posttrial 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.‖ (Breverman,
supra, 19 Cal.4th at pp. 177-178, fn. omitted.)
In employing the Watson standard of review here, it is reasonable to
assume the jury considered all of the defense evidence bearing on defendant‘s state
of mind and the question whether he harbored malice when it entertained and
rejected his claims of reasonable and unreasonable (or imperfect) self-defense.
22
Ruben testified that despite his and Mark‘s best efforts to avoid defendant,
defendant spotted them, sped toward them as if trying to run them down, then
abruptly stopped the car and jumped out, along with Avendano and Lopez, leaving
the vehicle in the middle of the street with its doors open, as they began chasing the
two. Ruben testified he heard defendant say, ―Come on, let‘s go, let‘s get these
motherfuckers.‖ Mark and Ruben quickly scaled a chain link fence. Ruben
testified he thought he saw Mark drop his bat at the beginning of the chase as he
was going over the fence. Defendant immediately followed Mark over the fence
and chased him a considerable distance before cornering him in a field or large
backyard.
Ruben and Mark became separated during the chase. When Ruben heard
defendant and the others leaving the area he looked for Mark and found him face
down on the ground, bleeding badly, with his breathing labored. His front upper
teeth were broken off, as if he had been hit hard in the mouth, and his ―brains [were]
hanging out of his head.‖ An autopsy revealed that Mark sustained at least four
blows to the head and three more to other areas of his body. In one area of his head,
the force of a blow was so strong it shattered his skull into multiple small fragments.
Moments after fleeing the crime scene, defendant had enough sense and composure
to dispose of the bloodied murder weapon in a nearby storm drain.
Once the jury rejected defendant‘s claims of reasonable and imperfect self-
defense, there was little if any independent evidence remaining to support his
further claim that he killed in the heat of passion, and no direct testimonial
evidence from defendant himself to support an inference that he subjectively
harbored such strong passion, or acted rashly or impulsively while under its
influence for reasons unrelated to his perceived need for self-defense. To the
contrary, the evidence established beyond a reasonable doubt that defendant
located the victim and Ruben the morning after the fistfight, enlisted the assistance
23
of Avendano and Lopez, chased the victim over a chain link fence and through a
field, caught him and bludgeoned him to death with a baseball bat, after which
defendant disposed of the bloodied murder weapon in a nearby storm drain.
Defendant‘s claim — that the victim kicked his car before trying to run for safety,
and that he only chased the victim to ―see where he was going‖ so he could report
the alleged car-kicking incident to the police4 — was ultimately rejected by the
jury when it considered such evidence and found that he had killed with malice.
Moreover, the jury having rejected the factual basis for the claims of
reasonable and unreasonable self-defense, it is not reasonably probable the jury
would have found the requisite objective component of a heat of passion defense
(legally sufficient provocation) even had it been instructed on that theory of
voluntary manslaughter.
Upon examining the entire cause, including the evidence (Cal. Const.,
art. VI, § 13), we conclude it is not ―reasonably probable‖ defendant would have
obtained a more favorable outcome at trial had a heat of passion instruction been
given. (Watson, supra, 46 Cal.2d at p. 836.)5

4
Once defendant elected to take the stand, the jury learned he had been
convicted of assault with a firearm in 2004 and was on felony probation for that
offense at the time he committed this homicide.
5
Justice Kennard disagrees with the prejudice test mandated by our state
constitution and found applicable to this category of instructional error by a
majority of this court in Breverman, supra, 19 Cal.4th at pp. 142, 178. (Dis. opn.
of Kennard, J., post, at pp. 7-9.) As in Breverman, defendant has not raised the
claim advanced by Justice Kennard — that the lesser-included offense instructions
given below were defective under federal law because they incompletely defined
the malice element of murder, requiring application of the prejudice test for
federal constitutional errors set forth in Chapman v. California (1967) 386 U.S.
18, 24. (Breverman, at p. 170, fn. 19.) Accordingly, the claim must properly
await a case in which it has been clearly raised and fully briefed. (Ibid.)
24


CONCLUSION
The judgment of the Court of Appeal is reversed and the matter remanded
to that court for further proceedings consistent with the views expressed herein.

BAXTER, J.

WE CONCUR:
GEORGE, C.J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


25





CONCURRING OPINION BY WERDEGAR, J.

I concur in the judgment on the ground that any error in refusing to instruct
on heat-of-passion voluntary manslaughter was, on the particular facts of this case,
harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. As
the majority opinion explains, the jurors, disbelieving defendant‘s testimony to the
extent of rejecting his claims of reasonable and unreasonable self-defense, were
not reasonably likely to accept that same testimony as showing defendant killed
Mark Urrutia in a heat of passion provoked by Urrutia‘s attack on him. (Maj.
opn., ante, at pp. 21-24.)
I write separately because I believe the question whether the record
contains substantial evidence justifying the requested instruction is closer than the
majority allows. Defendant‘s testimony that Urrutia attacked him with a baseball
bat, hitting him several times, and that defendant ―wasn‘t, like, in the right state of
mind‖ as he wrested the bat from Urrutia and struck the fatal blows, arguably
would have permitted a rational juror to find defendant killed ―upon sudden
quarrel or heat of passion.‖ (Pen. Code, § 192, subd. (a).) This is so even though,
as the majority stresses, the thrust of defendant‘s testimony was to show he acted
in self-defense, rationally responding to the victim‘s attack. As we explained in
People v. Barton (1995) 12 Cal.4th 186, instructions on voluntary manslaughter
should be given when supported by substantial evidence, notwithstanding the
defendant‘s ―protestations of innocence.‖ (Id. at p. 196.) ―The trial court must
1


instruct on lesser included offenses when there is substantial evidence to support
the instruction, regardless of the theories of the case proffered by the parties.‖ (Id.
at p. 203.) Nor did the trial court‘s instruction on the unreasonable self-defense
theory of voluntary manslaughter excuse it from instructing on heat of passion as
well if the evidence supported both theories. (People v. Breverman (1998) 19
Cal.4th 142, 162.)
Although not as strong as in People v. Breverman, supra, 19 Cal.4th at
pages 163-164, or People v. Barton, supra, 12 Cal.4th at page 202, there was in
this case evidence of heat of passion. Defendant testified to a sudden attack by the
victim that put him in an excited state — not ―in [his] right state of mind‖ —
leading to a struggle that ended in the victim‘s death. As the failure to give the
requested instruction was clearly harmless, unlike the majority I would not decide
the difficult question of whether this testimony constitutes substantial evidence
defendant killed in a heat of passion.
WERDEGAR, J.
2





DISSENTING OPINION BY KENNARD, J.

In a murder case, when there is substantial evidence that the killing
occurred ―upon a sudden quarrel or heat of passion‖ (Pen. Code, § 192, subd. (a)),
or that the killing resulted from the defendant‘s unreasonable belief that self-
defense was necessary (People v. Cruz (2008) 44 Cal.4th 636, 664; People
v. Flannel (1979) 25 Cal.3d 668, 680-683), the trial court must instruct the jury on
voluntary manslaughter, which is a lesser offense of murder. Here, the trial court
instructed the jury on the latter theory, but it refused the defense request to instruct
on the former theory. In upholding that ruling, the majority describes as
―insubstantial‖ (maj. opn., ante, at p. 1) the evidence tending to show that the
killing occurred in the heat of passion. I disagree.
I
Defendant and his girlfriend Kandie Sanchez lived in the home of Kandie‘s
mother in Rowland Heights, an unincorporated community in Los Angeles
County. Also living there was Kandie‘s 20-year-old daughter, Jessica Sanchez.
On the night of February 11, 2006, Kandie‘s mother and daughter quarreled
with defendant; they wanted him to move out. After saying that her boyfriend
could ―kick [defendant‘s] ass,‖ Jessica called her boyfriend, Ronnie Urrutia, and
asked him to come over.
At the time, Ronnie Urrutia was at a party in Fontana with his brother Mark
(the victim) and three friends (Carlos Munoz, Ruben Ibarra, and a man named
1


Rudy, whose last name does not appear in the record). All five had been drinking.
After Jessica‘s call, they went to the Sanchez home, where they encountered
defendant and codefendants Daniel Avendano and Jorge Lopez. A fistfight ensued
between defendant and Ronnie. The two struggled on the ground. When
defendant got on top of Ronnie, the latter‘s friends Munoz and Ibarra kicked
defendant, and Mark hit defendant twice in the back with a baseball bat while
Ronnie held defendant down. Ibarra, who was intoxicated, threw a bottle at
defendant. After the fight ended, defendant, who was still angry, chased Ronnie
with a kitchen knife as Ronnie and Jessica were leaving; to protect Ronnie, Munoz
hit defendant in the arm with a broken ski pole.
The next day, Carlos Munoz discovered that he had lost his glasses during
the fight. He then walked over to the Sanchez house to look for them. With him
were his brother Jose and a friend, Santos Buenrostros. They saw defendant,
Avendano, and Lopez, and heard them talk: One asked if the three men (Carlos,
Jose, and Buenrostros) were ―them‖ (presumably referring to Mark and his brother
Ronnie); another replied, ―that‘s not them,‖ to which the first responded, ―Oh,
good, because if it was I was about to do something.‖ Defendant, Avendano, and
Lopez got into a white car and drove off. Carlos called Mark, who was with his
friend Ruben Ibarra, and warned him that defendant and his friends were looking
for Mark. Mark suggested meeting a couple of blocks away.
As Mark and Ibarra were on their way, Ibarra saw a white car driving fast
towards them. The car stopped abruptly and out came defendant, Avendano, and
Lopez. Ibarra heard defendant say, ―Come on, . . . let‘s get these motherfuckers.‖
Ibarra and Mark, who was carrying a baseball bat, climbed a fence and split up.
While defendant and Avendano chased Mark, Lopez pursued Ibarra, who ran to a
shed. When the coast was clear, Ibarra found Mark lying 100 yards from the
fence, with serious head injuries.
2
About that time, Carlos, Jose, and Buenrostros came upon defendant‘s
white car, which was parked with all its doors open. Moments later, defendant,
Avendano, and Lopez were seen jumping over a fence. They looked nervous.
Defendant was carrying two baseball bats, which he put in the trunk of the car.
Defendant and his two companions then drove off. Later that morning, Christine
Lopez was in front of her home, not far from the scene of the killing, when she
saw a white car carrying three men she did not know; the men were laughing
loudly. She saw them throw something out of the car. One of the men said they
had ―lit him up‖ or ―lighted up.‖ At trial, she identified two of the men as
defendant and Avendano. Police recovered Mark‘s baseball bat in a storm drain
near the area where Christine Lopez had seen the men in the white car.
Bloodstains on the handle of the bat matched defendant‘s DNA profile, while
bloodstains on the barrel matched Mark‘s DNA profile.
Mark died of his injuries. He sustained at least four blows to the head and
three to the rest of his body. There were wounds on his hands that could have
been defensive wounds, but also might have resulted from climbing the fence.
According to Kandie Sanchez, after the killing defendant returned to the
Sanchez home, looking ―all upset‖; he quickly departed, leaving his belongings
behind. She did not see him again until she testified at defendant‘s trial.
Defendant was arrested three weeks after he killed Mark.
Defendant testified that on the day of the killing he was driving to a store
when he saw a man whom he believed to be Ronnie Urrutia (the boyfriend of his
girlfriend‘s daughter) walking down the street with another man. Defendant
decided to talk to Ronnie about the previous night‘s fight, and he asked Avendano
and Lopez to go with him for protection. As they were driving down the street,
defendant saw Mark (Ronnie‘s brother) with Ibarra. When defendant stopped to
talk to them, Mark kicked defendant‘s car, after which Mark and Ibarra fled over a
3
fence. Upset that Mark had kicked his car, defendant chased Mark, catching up to
him in a field. When defendant was about four feet away, Mark turned and said,
―yeah, now I got you.‖ Mark then attacked defendant with a baseball bat, hitting
defendant‘s arms and hands, which defendant used to protect his face. After Mark
swung the bat four or five times, defendant managed to take it away. Mark
continued to come towards defendant, who then hit Mark‘s arm with the baseball
bat. Mark ―still trie[d] to attack‖ defendant, who, fearing that Mark would grab
the bat back and injure him, kept hitting Mark until he fell. At this point defendant
got scared and ran off, carrying the baseball bat with him. Later, he threw the bat
in the gutter.
II
A defendant who unlawfully kills ―upon a sudden quarrel or heat of
passion‖ (Pen. Code, § 192, subd. (a)) lacks malice, and is therefore guilty not of
murder but of the lesser offense of voluntary manslaughter. ―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 (1995) 12
Cal.4th 186, 201 (Barton).)
―Heat of passion‖ will reduce murder to voluntary manslaughter only if
there is adequate provocation. The victim‘s conduct ―must be sufficiently
provocative that it would cause an ordinary person of average disposition to act
rashly or without due deliberation and reflection. [Citations.]‖ (People v. Lee
(1999) 20 Cal.4th 47, 59.)
A trial court must instruct the jury on voluntary manslaughter arising from
a sudden quarrel or heat of passion when there is evidence from which a jury of
reasonable persons could conclude that the lesser offense of voluntary
4
manslaughter, but not the greater offense of murder, was committed. (People
v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) Any doubts on the
sufficiency of the evidence to warrant an instruction on voluntary manslaughter
should be resolved in the defendant‘s favor. (People v. Tufunga (1999) 21 Cal.4th
935, 944; People v. Flannel, supra, 25 Cal.3d at p. 685.).
Here, defendant contends that the following three acts by victim Mark
Urrutia constituted provocation that ―would cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection‖ (People v. Lee,
supra, 20 Cal.4th at p. 59): (1) The night before the killing, Mark hit defendant
with a baseball bat; (2) shortly before the killing, Mark (according to defendant)
angered defendant by kicking his car; (3) immediately before the killing, Mark
(according to defendant) hit defendant with a baseball bat.
The majority holds that neither the first nor the second of these three acts
by the victim furnished the requisite provocation. The majority points out that
there was a long ―cooling off‖ period after the first act (hitting defendant with the
baseball bat the night before the killing), and that the second act (kicking
defendant‘s car on the day of the killing) was not sufficiently provocative to cause
an ordinary person to act without due deliberation or reflection. (Maj. opn., ante,
at pp. 15-16.) I agree.
The majority does not, however, decide whether the third act (hitting
defendant with the baseball bat just before the killing) constituted adequate
provocation. It concludes that even if it was, there was no substantial evidence
that defendant acted ―rashly or without due deliberation and reflection‖ (People
v. Lee, supra, 20 Cal.4th at p. 59) when he killed Mark, and therefore the trial
court was not required to instruct the jury on voluntary manslaughter arising from
a ―sudden quarrel or heat of passion.‖ (Pen. Code, § 192, subd. (a).) I disagree.
5
True, there was no direct evidence that defendant was acting in the heat of
passion when he hit Mark with the baseball bat: Defendant told the jury that he
had killed Mark in self-defense, apparently in an attempt to gain a verdict of not
guilty. But as explained below, there was circumstantial evidence that defendant
acted in the heat of passion. The jury should not have to choose between believing
defendant‘s self-serving testimony that he acted in self-defense — and therefore
should not be found guilty — and accepting the prosecution‘s argument that the
killing was murder. ― ‗Our courts are not gambling halls but forums for the
discovery of truth.‘ [Citation.] Truth may lie neither with the defendant‘s
protestations of innocence nor with the prosecution‘s assertion that the defendant
is guilty of the offense charged, but at a point between these two extremes: the
evidence may show that the defendant is guilty of some intermediate offense
included within, but lesser than, the offense charged. A trial court‘s failure to
inform the jury of its option to find the defendant guilty of the lesser offense
would impair the jury‘s truth-ascertainment function.‖ (Barton, supra, 12 Cal.4th
at p. 196.)
Here, there was substantial circumstantial evidence from which the jury
could have reasonably concluded that defendant killed Mark in a sudden quarrel or
in the heat of passion. There was evidence that when Mark hit defendant with a
baseball bat the night before the killing, defendant became so angry that he chased
Mark‘s brother Ronnie — who had been in a fight with defendant when Mark hit
defendant with the bat — with a kitchen knife. There was also evidence that
defendant again became upset when Mark, according to defendant, kicked
defendant‘s car shortly before the killing. From this evidence the jury could have
reasonably inferred that just before the killing defendant again became enraged
when, according to defendant, Mark — as he had done the night before — hit
defendant with a baseball bat. Therefore, the trial court erred when it refused to
6
instruct the jury on voluntary manslaughter arising from a sudden quarrel or heat
of passion.
I turn now to the complex question of whether this instructional error was
prejudicial.
III
In Breverman, this court held that ―the trial court erred . . . when it failed to
instruct . . . on heat of passion as a theory of voluntary manslaughter.‖
(Breverman, supra, 19 Cal.4th at p. 164.) To assess prejudice, the Breverman
majority fashioned this general rule: When a trial court fails to instruct the jury on
―all lesser included offenses and theories thereof which are supported by the
evidence‖ (id. at p. 178), the error is a violation of state law, not the federal
Constitution (id. at p. 165), and is prejudicial only if ―it is reasonably probable that
a result more favorable to the appealing party would have been reached in the
absence of the error‖ (People v. Watson (1956) 46 Cal.2d 818, 836).
I disagreed with that prejudice test. My dissenting opinion in Breverman
explained: ―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 . . . 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.‖ (Breverman, supra, 19 Cal.4th at pp. 189-
190 (dis. opn. of Kennard, J.).) Such a failure to instruct, I concluded, is ―federal
constitutional error‖ (id. at p. 194 (dis. opn. of Kennard, J.)), because it gives the
jury an incomplete definition of malice, which is an element of the charged crime
of murder.
7
The Breverman majority saw no need to respond to my dissent because,
according to the majority, the theory underlying my dissenting opinion had not
been raised by the defendant either in the Court of Appeal or in this court.
(Breverman, supra, 19 Cal.4th at p. 170, fn. 19.) I was of the view that the
defendant had preserved the issue. (Id. at pp. 191-194 (dis. opn. of Kennard, J.).)
This court has yet to resolve the issue I raised in my dissenting opinion in
Breverman. (See People v. Lasko (2000) 23 Cal.4th 101, 113 [explaining that
Breverman did not decide the question].)
Here, defendant‘s argument on prejudice is premised on the applicability of
the Watson harmless-error standard, which applies to state law violations.
Applying that test, the majority concludes that ―even if it was error to fail to
instruct on heat of passion voluntary manslaughter on this record, any such error
was harmless as it is not reasonably probable defendant would have obtained a
more favorable outcome had the jury been so instructed.‖ (Maj. opn., ante, at
p. 21.) In my view, however, the trial court‘s failure to instruct on the heat of
passion theory of voluntary manslaughter was federal constitutional error ―because
the trial court . . . inadequately instructed the jury on the elements of murder by
failing to explain that the element of malice is not present when the defendant kills
in the heat of passion.‖ (People v. Lasko, supra, 23 Cal.4th at p. 113.)1
When an instruction violates the federal Constitution, prejudice is measured
by whether the prosecution can show beyond a reasonable doubt that

1
I reach this conclusion notwithstanding defendant‘s failure to argue in this
court that the trial court‘s instructional error violated the federal Constitution.
(See maj. opn., ante, at p. 24, fn. 5 [noting that defendant has not raised the issue];
People v. Williams (1998) 17 Cal.4th 148, 162, fn. 8 [―An appellate court is
generally not prohibited from reaching a question that has not been preserved for
review by a party. . . . Whether or not it should do so is entrusted to its
discretion.‖].)
8


the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.) Under
that test, a reviewing court ―asks whether the record contains evidence that could
rationally lead to a contrary finding‖ by the jury. (Neder v. United States (1999)
527 U.S. 1, 19.) Here, as I have explained, the record contains substantial
evidence that defendant was acting in the heat of passion when he killed Mark
Urrutia. Based on that evidence, the jury could have rationally concluded that
defendant lacked malice and was guilty not of murder but of the lesser offense of
voluntary manslaughter.
I would affirm the Court of Appeal‘s judgment, which had reversed
defendant‘s murder conviction.

KENNARD, J.
9



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Moye
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 9/27/07 – 2d Dist., Div. 8
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S157980
Date Filed: August 24, 2009
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Charles E. Horan

__________________________________________________________________________________

Attorneys for Appellant:

Patricia A. Scott, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Linda C. Johnson, Kristofer Jorstad and Elaine F. Tumonis, Deputy
Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia A. Scott
Post Office Box 12876
Prescott, AZ 86304
(928) 445-8380

Elaine F. Tumonis
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2278


Petition for review after the Court of Appeal reversed a judgment of conviction of a criminal offense. This case presents the following issue: Did the trial court err to defendant's prejudice in failing to instruct the jury on voluntary manslaughter on a theory of provocation and heat of passion as a lesser included offense of second degree murder?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 08/24/200947 Cal. 4th 537, 213 P.3d 652, 98 Cal. Rptr. 3d 113S157980Review - Criminal Appealopinion issued

Parties
1The People (Plaintiff and Respondent)
Represented by Elaine F. Tumonis
Office of the Attorney General
300 S. Spring Street, Suite 500
Los Angeles, CA

2Moye, Alexander (Defendant and Appellant)
High Desert State Prison
P. O. Box 3030
Susanville, CA 96127

Represented by Patricia Ann Scott
Attorney at Law
P.O. Box 12876
Prescott, AZ


Opinion Authors
OpinionJustice Marvin R. Baxter
ConcurJustice Kathryn M. Werdegar
DissentJustice Joyce L. Kennard

Disposition
Aug 24 2009Opinion: Reversed

Dockets
Nov 5 2007Petition for review filed
People, respondent Elaine F. Tumonis, DAG
Nov 5 2007Record requested
Nov 16 2007Received Court of Appeal record
Dec 31 2007Time extended to grant or deny review
to and including February 1, 2008, or the date upon which review is either granted or denied.
Jan 16 2008Petition for review granted (criminal case)
Votes: George, C.J, Kennard, Baxter, Chin, and Corrigan, JJ.
Feb 4 2008Counsel appointment order filed
Upon request of appellant for appointment of counsel, Patricia Ann Scott is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Feb 8 2008Request for extension of time filed
counsel for respondent requests extension of time to March 16, 2008 to file the opening brief on the merits.
Feb 14 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 16, 2008.
Mar 10 2008Request for extension of time filed
to file respondent's opening brief/merits to Apr. 15, 2008 Supervising Deputy Attorney General Elaine F. Tumonis
Mar 18 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 15, 2008. *** No further extensions of time are contemplated.***
Apr 15 2008Opening brief on the merits filed
respondents
May 6 2008Change of contact information filed for:
counsel for aplt.
May 12 2008Request for extension of time filed
Appellant Alexander Moye requests a 30-day extension to and including June 13, 2008, to file appellant's answer brief on the merits.
May 16 2008Extension of time granted
On application of appellant and good cause appearing it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including June 13, 2008.
Jun 9 2008Request for extension of time filed
Counsel for aplt. requests extension of time to July 14, 2008, to file the answer brief on the merits.
Jun 11 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 14, 2008. No further extension of time are contemplated.
Jul 10 2008Request for extension of time filed
counsel for aplt. requests 10-day extension of time to July 24, 2008, to file the answer brief on the merits.
Jul 14 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 24, 2008. No further extensions of time will be granted.
Jul 28 2008Answer brief on the merits filed
Alexander Moye, appellant - CRC 8.25(b) by Patricia A. Scott, Counsel
Aug 12 2008Reply brief filed (case fully briefed)
The People, respondent
Sep 10 2008Compensation awarded counsel
Atty Scott
Apr 22 2009Case ordered on calendar
to be argued Wednesday, May 27, 2009, at 1:30 p.m., in San Francisco
May 18 2009Filed:
counsel for aplt. Additional Cites for Oral Argument (amended)
May 27 2009Cause argued and submitted
Aug 21 2009Notice of forthcoming opinion posted
To be filed Monday, August 24, 2009 at 10 a.m.
Aug 24 2009Opinion filed: Judgment reversed
The judgment of the Court of Appeal is reversed and the matter remanded to that court for further proceedings consistent with the views expressed herein. OPINION BY: Baxter, J. --- joined by: George, C.J., Chin, Moreno, and Corrigan, JJ. CONCURRING OPINION BY: Werdegar, J. DISSENTING OPINION BY: Kennard, J.

Briefs
Apr 15 2008Opening brief on the merits filed
respondents
Jul 28 2008Answer brief on the merits filed
Alexander Moye, appellant - CRC 8.25(b) by Patricia A. Scott, Counsel
Aug 12 2008Reply brief filed (case fully briefed)
The People, respondent
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 11, 2009
Annotated by Michael Eagan

At issue in this appeal is whether the trial court's failure to instruct the jury on a sudden quarrel/heat of passion theory of voluntary manslaughter was prejudicial error. The majority finds that it was not, and overturns the Court of Appeal's judgment reversing the conviction for second degree murder.

MAJORITY OPINION

Justice Baxter, writing for the majority, agrees with the trial court's determination that there was insubstantial evidence to support an instruction for voluntary manslaughter based on a sudden quarrel/heat of passion theory. The defendant took the stand and testified regarding the events before, during and after the homicide. Defendant admitted to the killing and contended repeatedly that the act was committed in self-defense. Accordingly, the jury was instructed on voluntary manslaughter based on a theory of "imperfect" or "unreasonable" self-defense.

At trial, defense counsel also cited other portions of the defendant's testimony to support an instruction for voluntary manslaughter based on sudden quarrel/heat of passion theory. Defendant argued there were three possible events that could have constituted substantial provocation leading to the arousal of defendant's passions. The first occurred the previous night, when the victim had attacked defendant with a baseball bat. The second occurred several moments before the killing, when the victim kicked defendant's car. The third occurred immediately prior to the killing, when the victim attacked the defendant with a baseball bat, before defendant gained control of the bat and struck the victim fatally.

The majority evaluates these claims and rejects them. It finds each of the first two preceding events to be insufficient legal provocation to arouse the defendant to kill in the heat of passion, as did the trial court and Court of Appeal. However, unlike the Court of Appeal, the majority agreed with the trial court that the final alleged act of provocation—the victim's attacking the defendant with the bat prior to the killing—was also insufficient. Even though the defendant testified that he was not in the "right state of mind" during the attack, the Court notes that he immediately explained that he was referring to his efforts to resist the victim's attacks. The Court thus finds that the defendant's actions during the attack were done in self-defense, consistent with the overall thrust of defendant's testimony. As such, no reasonable juror could believe that the killing was in response to a provocation giving rise to the "actual influence of a strong passion."

The majority opinion also takes care to distinguish this case from People v. Breverman, 19 Cal.4th 142 (1998), in which the jury was instructed on both theories of voluntary manslaughter. The court found the facts in Breverman inapposite, as the testimony of the defendant's here demonstrated his deliberate and successive actions at the time of the killing, whereas the Breverman defendant acted in "one continuous, chaotic response" in the face of a threatening mob.

Assuming arguendo that the trial court's failure to instruct was error, the majority also establishes that such error would be harmless under the Watson test (People v. Watson, 46 Cal.2d 818, 836 (1956)). The court finds it not reasonably probable that the defendant would have received a more favorable outcome had the instruction on sudden quarrel/heat of passion been given. Once the jury rejected the defendant's claims of self-defense, the court argues, there was little if any evidence left to support any sudden quarrel/heat of passion claim.

Justice Baxter is joined in the opinion by:
George, C.J.
Chin, J.
Moreno, J.
Corrigan, J.

CONCURRING OPINION

Justice Werdegar concurs in the judgment, but writes separately to note that she does so only on the basis of the Watson harmless error standard cited by the majority. She believes the question over the record containing substantial evidence to support the instruction is a closer call. Under People v. Barton, 12 Cal.4th 186 (1995), an instruction on voluntary manslaughter is required when supported by substantial evidence, notwithstanding a defendant's protestations of innocence—such as the self-defense claims of the defendant here. Further, Breverman demonstrates the need to instruct on both theories of voluntary manslaughter if both are supported by evidence. Thus, Justice Werdegar would decline to decide the issue of whether the evidence here was substantial to support the instruction, since the failure to instruct was "clearly harmless."

DISSENTING OPINION

Justice Kennard disagrees with the majority on both counts, arguing that the failure to instruct was both error and prejudicial to the defendant. The dissent acknowledges that no direct evidence exists showing that defendant acted in the heat of passion at the time of the killing. However, Justice Kennard points to the totality of the events preceding the killing—including the events of the night before—and argues that the circumstantial evidence is substantial enough to require a heat of passion instruction.

On the question of prejudice, the dissent disagrees with the use of the Watson test in a case where the trial court fails to instruct on all lesser included offenses supported by the evidence. Reasserting her dissent in Breverman, Justice Kennard believes such an error is a violation of the federal Constitution—not just state law—because it gives the jury an incomplete definition of "malice." Thus, when faced with federal constitutional error, a determination of the harmlessness of that error must be proven beyond a reasonable doubt, not according to Watson's "reasonable probability" standard.