California Court of Appeals, First District, Third Division
Trial Judge: Honorable Cecilia P. Castellanos. Ct. No. C158950 Trial Court: Alameda County Superior Court
Counsel for Defendant and Appellant: FIRST DISTRICT APPELLATE Jamie Thomas PROJECT Jeffrey Alan Glick
Counsel for Plaintiff and Respondent: Kamala D. Harris, Attorney General The People Dane R. Gillette, Chief Assistant Attorney General
Gerald A. Engler, Senior Assistant Attorney General
Catherine A. Rivlin, Supervising Deputy Attorney General
Michael Chamberlain, Deputy Attorney General
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION: NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on August 1, 2013, be modified as follows:
1.At page 13, following the citation to People v. Beltran (2013) 56 Cal.4th 935, 941–942, add as footnote 4 the following footnote, which will require renumbering of all subsequent footnotes:
2. At page 14, after the second full paragraph, add the following two paragraphs:
56 Cal.4th 935
People v. Watson
46 Cal.2d 818
Nor, for present purposes, does People v. Breverman, supra, 19 Cal.4th 142 answer that question. Breverman holds that a failure to instruct sua sponte on voluntary manslaughter as a lesser necessarily included offense is reviewed under Watson because, primarily, “the sua sponte duty to instruct fully on all lesser included offenses suggested by the evidence arises from California law alone.” (Breverman, at p. 149.) But this case concerns the court’s duty to give a requested instruction, not the sua sponte duty to instruct at issue in Breverman. In any event, the legal classification of heat of passion manslaughter as a lesser included offense of murder does not end the analysis. Heat of passion manslaughter is a lesser included offense of murder, facts permitting, because it negates the element of malice. (Rios, supra, 23 Cal.4th at pp. 454, 461.) If provocation is properly presented in a murder case, then, proving the element of malice requires the People to prove the absence of provocation beyond a reasonable doubt. (Id. at p. 462.) “[J]ury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violate the defendant’s due process rights under the federal Constitution.” (People v. Flood, supra, 18 Cal.4th at. p. 491.) Failure to instruct the jury on heat of passion to negate malice is federal constitutional error requiring analysis for prejudice under Chapman.
The petition for rehearing is denied. There is no change ...