Superior Court San Francisco County Nos. 175503, 203443, Ct.App. 1/4 A124392 Robert L. Dondero Judge
Linda M. Leavitt, under appointmetn by the Supreme Court, for Defendant and Appellant.
Mary Greenwood, Public Defender (Santa Clara) and Michael Ogul, Deputy Public Defender, for California Public Defenders Association, California Attorneys for Criminal Justice and Santa Clara County Public Defender as Amici Curiae on behalf of Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Laurence K. Sullivan and Jeffery M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.
W. Scott Thorpe; Brian Feinberg, Laura Delehunt and Jay Melaas, Deputy District Attorneys (Contra Costa), for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.
Bay Area Legal Aid, Minouche Kandel; Greines, Martin, Stein & Richland, Cynthia E. Tobisman, Kent J. Bullard and Lara M. Krieger for San Francisco Domestic Violence Consortium, California Women Lawyers, California Partnership to End Domestic Violence, Queen’s Bench Bar Association and Women Lawyers of Sacramento as Amici Curiae on behalf of Plaintiff and Respondent.
Here we clarify what kind of provocation will suffice to constitute heat of passion and reduce a murder to manslaughter. The Attorney General argues the provocation must be of a kind that would cause an ordinary person of average disposition to kill. We disagree. Nearly one hundred years ago, this court explained that, when examining heat of passion in the context of manslaughter, the fundamental “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.” (People v. Logan (1917) 175 Cal. 45, 49 (Logan).) The proper standard focuses upon whether the person of average disposition would be induced to react from passion and not from judgment.
Defendant Tare Nicholas Beltran and Claire Joyce Tempongko met in November 1998 and began dating. In January 1999, defendant moved into the San Francisco apartment Tempongko shared with her nine-year-old son J.N. and her younger daughter. J.N. called defendant “dad.” In several incidents, defendant physically abused Tempongko. In April 1999, he threw her to the ground and dragged her by the hair. Three weeks later, he grabbed her and tried to remove her from a friend’s apartment. In November 1999, he took her into the bedroom and barricaded the door. The police were summoned and forced the door open.
At some point, defendant moved from the apartment but retained a key. Tempongko obtained a protective order requiring him to stay 100 yards away from the residence. In September 2000, defendant, who was drunk, was arrested outside of the apartment.
Tempongko began dating Michael Houtz. She once told Houtz that defendant said their relationship would end over his dead body or hers.
On October 22, 2000, Houtz, Tempongko and the children went shopping in Sacramento. When Tempongko received a call on her cell phone, J.N. answered, then handed the phone to his mother, saying, “Dad is mad.” The heated conversation ended after Tempongko yelled into the phone and hung up. Houtz testified that he could not understand Tempongko’s side of the interaction because she was not speaking in English. Tempongko explained that “he” was bothering her, and Houtz believed she was referring to defendant. After the call, Tempongko’s demeanor changed completely and she became quite upset. On the drive home, Tempongko received several more calls, some of which she answered. Tempongko became “fidgety” and appeared nervous about getting home by 7:00 p.m. as planned.
As they neared her apartment, Tempongko saw a green Honda parked nearby and told Houtz to drive around the block. Houtz saw a “Caucasian or Hispanic” man slumped down in the Honda’s driver’s seat. Tempongko became very frightened and repeatedly scanned the area. She told Houtz to drive around the block three additional times. The green Honda was gone when Houtz parked in front of the apartment building. Tempongko and the children ran inside without saying goodbye. Shortly thereafter, Houtz phoned Tempongko on both her cell and home phones. No one accepted the cell call. J.N. answered the home phone and said Tempongko was not there. Houtz drove back to the building and saw a man running across the street. Houtz checked the front door of the apartment. Seeing nothing amiss, he headed home to Vallejo. He called Tempongko’s cell phone several times during his drive but could not reach her.
Tempongko’s apartment building had three units. Christina Maldonado lived on the top floor. On the evening of October 22, 2000, she heard sounds of a physical altercation coming from Tempongko’s apartment. There was a muffled male voice and children screaming that they loved their mother. She did not hear an adult female voice. When Maldonado left her apartment and looked down the stairs, she saw J.N. run out of Tempongko’s unit. Another neighbor caught up with J.N., who was crying. J.N. said that his “dad” stabbed his mother and ran away. The neighbors found Tempongko in her apartment bloody and unresponsive. The apartment was in disarray; the phone had been unplugged from the wall. An autopsy revealed several blunt force injuries and 17 stab wounds to Tempongko’s face, upper body, arms, and hands. After running from the scene, defendant fled to Mexico where he was arrested six years later.
J.N. was 18 years old at the time of trial. He testified that, after the family got home on October 22, 2000, Tempongko received several cell phone calls. Tempongko was “frantic, ” arguing with someone on the phone, and telling the caller not to come to the apartment. Thirty to 45 minutes later, defendant banged loudly on the front door, then entered without being let in. He began yelling and asking Tempongko where she had been and with whom. The two argued for five or 10 minutes. Defendant then walked briskly to the kitchen, returned to the living room with a large knife, and repeatedly stabbed Tempongko. She futilely raised her arms in self-defense. Defendant continued to stab her as she slumped to the floor, then fled, taking the knife with him. Nearby, police later recovered a knife with Tempongko’s blood on it.
Defendant testified that he and Tempongko had an up and down relationship. While they discussed having their own children, Tempongko was concerned that defendant would leave her as the fathers of her two other children had done. At some point, they decided Tempongko would try to become pregnant, but defendant believed she was unsuccessful. Defendant acknowledged he had grabbed Tempongko on several occasions but denied pulling her hair.
On the day of the killing, defendant and Tempongko had planned to have lunch together. However, she called him and said she was going shopping in Vallejo with a female friend. She offered to meet defendant after she returned. At her request, defendant called Tempongko at about 3:00 p.m. to see if they were on their way back to San Francisco. He denied being upset or demanding that she be home by 7:00 p.m. That evening, he went to the apartment and let himself in with a key because Tempongko was expecting him. Defendant was calm but Tempongko was upset, asking why he was late. The argument became heated. Tempongko hurled insults, calling defendant a “ ‘fucking illegal’ ” and a “ ‘nobody.’ ” She said she “ ‘could get better than [him].’ ” Defendant said he was leaving, which upset Tempongko further. She stated: “ ‘Fuck you. I was right. I knew you were going to walk away someday. That’s why I killed your bastard. I got an abortion.’ ” Defendant was shocked; Tempongko had never mentioned an abortion. He remembered nothing else until he found himself standing in the living room with a bloody knife. He admitted that he discarded the knife and fled to Mexico.
Defendant was charged with murder and use of a deadly weapon. The trial court gave instructions on first and second degree murder, as well as voluntary manslaughter based upon a sudden quarrel or heat of passion. The jury found defendant guilty of second degree murder with the use enhancement.
A divided Court of Appeal concluded the voluntary manslaughter instruction was prejudicially erroneous and reversed defendant’s conviction. We clarify the appropriate standard and reverse the judgment of the Court of Appeal.
A. Legal Introduction