California Landmark Cases on Lesser Included Offense Jury Instruction

The trial court should only instruct concerning a lesser-included offense when there is substantial evidence to support it. (People v. Flannel (1979) 25 Cal.3d 668, 684.) In this context, substantial evidence means evidence from which a jury composed of reasonable persons could conclude that the facts underlying the lesser-included offense exist. (People v. Blair (2005) 36 Cal.4th 686, 744-745.) Evidence which is minimal and insubstantial does not trigger a duty to instruct. (People v. Flannel, supra, 25 Cal.3d at p. 684.) On appeal the Court independently reviews the trial court's decision not to instruct on lesser-included offenses. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) A trial court has a sua sponte duty to instruct on all lesser included offenses supported by the evidence, including "every supportable theory of the lesser included offense of voluntary manslaughter, not merely the theory or theories which have the strongest evidentiary support, or on which the defendant has openly relied." (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) The duty to instruct does not arise if there is any evidence, no matter how weak, in support of the lesser offense, but arises only if there is evidence substantial enough to merit consideration by the jury. (Id. at p. 162.) In deciding whether there is substantial evidence of a lesser offense, the court should not evaluate the credibility of witnesses. (Ibid.) On appeal, we independently determine whether a lesser included offense instruction should have been given. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) When a defendant intentionally kills, but acts in heat of passion or unreasonable self-defense, the malice element of murder is deemed negated and the offense is reduced to voluntary manslaughter. (People v. Breverman, supra, 19 Cal.4th at pp. 153-154.) Heat of passion voluntary manslaughter has both an objective and subjective component: objectively, the victim must engage in provocative conduct that would cause an average, sober person to be so inflamed that he or she would lose reason or judgment and act rashly, and, subjectively, the defendant must actually kill while under the influence of this passion. (People v. Manriquez, supra, 37 Cal.4th at pp. 583-586.) Except for revenge, the passion aroused can be any violent, intense, high-wrought, or enthusiastic emotion. (People v. Breverman, supra, 19 Cal.4th at p. 163.) Because the existence of malice is presumed when the circumstances of a killing suggest an intent to kill or conscious disregard for life, provocation and heat of passion must be affirmatively demonstrated. (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015.) To require instruction on heat of passion, it "'is not enough that provocation alone be demonstrated. There must also be evidence from which it can be inferred that the defendant's reason was in fact obscured by passion at the time of the act.'" (Ibid.) If the evidence can support that the defendant killed with a good faith but unreasonable belief in the need for self-defense, and also that the defendant killed because his reason was obscured by passion in response to the victim's objectively provocative conduct, the trial court should instruct on both unreasonable self-defense and heat of passion. (People v. Breverman, supra, 19 Cal.4th at pp. 148-149, 153-154, 163-164.) For example, in Breverman instructions on both theories were required based on evidence showing that a group of men acted in a taunting, menacing manner in front of the defendant's home including battering his automobile with weapons, and in response the defendant, experiencing fear and panic, shot through a window pane and then came outside and continued shooting toward the fleeing vandals, fatally wounding one of the individuals. (Breverman, supra, at pp. 148, 150-151, 163-164.) In contrast, if there is evidence supporting that the defendant engaged in self-defensive action, but no evidence supporting that he acted rashly from strong passion rather than judgment, the trial court is not required to instruct on heat of passion in addition to unreasonable self-defense. (People v. Moye (2009) 47 Cal.4th 537, 551, 554.)