Breverman

Two young men who were walking by defendant’s house got into a fight with a larger group of youths congregated in the driveway. The two sustained cuts and bruises before the fracas ended and they were allowed to leave. The next night, at least one of the pair returned with a group of friends to exact some sort of retaliation. Members of the group taunted 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.

Defendant was charged with murder. The jury also received instructions on justifiable homicide (“reasonable” self-defense) and on the lesser “necessarily included” offenses of voluntary and involuntary manslaughter. The voluntary manslaughter instructions were premised entirely on the theory of “unreasonable” self-defense. (See People v. Flannel (1979) 25 Cal.3d 668, 674-680 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ] (Flannel).)

Defendant appealed his murder conviction, urging, inter…

I dissent.

In this cause, as in many others, the analysis required of the reviewing court entails consideration of whether the trial court erred and, if so, whether its error was reversible.

Because the majority do not resolve either question correctly, I cannot join in their opinion.

I

By information filed in the Superior Court of Los Angeles County on behalf of the People, the district attorney charged that appellant Scott Breverman murdered Andreas Suryaatmadja—to quote, Breverman “did willfully, unlawfully, and with malice aforethought murder . . . Suryaatmadja, a human being”—and alleged that he did so by personally using a firearm.

Trial was by jury. In essence, the evidence showed that, one night, Breverman, a White man, was visited at this house in Chatsworth by some friends; although his own role was unclear, it was indeed clear that about eight of his friends set upon Hyun Kim and Yoon Ju, two teenage Asian-American boys, as they were walking past his house; claiming affiliation with a local street gang, they called Kim and Ju “Chinks,” “Nips,” and other racial slurs, beat them with fists and feet and weapons, and finally let them *180 go; the next night, Kim…

In California, murder is defined as “the unlawful killing of a human being, . . . with malice aforethought.” (Pen. Code, § 187.) One who intentionally kills in the “heat of passion,” however, lacks malice and is guilty not of murder, but of voluntary manslaughter. (Pen. Code, § 192.)

In this case, defendant was charged with murder. At trial, the jury heard evidence tending to show that defendant intentionally killed the victim in the heat of passion. This evidence, if credited by the jury, was sufficient to support a verdict of voluntary manslaughter. The trial court, however, did not instruct the jury that one who kills in the heat of passion lacks malice and is therefore not guilty of murder. The jury convicted defendant of murder.

I agree with the majority that, as a matter of state law, the trial court should have instructed the jury that an intentional killing in the heat of passion is not murder but voluntary manslaughter. I disagree, however, with the majority’s conclusion that the trial court’s failure to so instruct was not federal constitutional error as well. In my view, when a defendant is charged with murder and there is sufficient evidence to support a conviction…

The majority, concluding that the trial court erred in failing to instruct sua sponte on voluntary manslaughter on a heat of passion theory, directs the Court of Appeal to reconsider the prejudicial impact of that error. In my view, the trial court did not err at all, reversibly or otherwise. Therefore, I respectfully dissent.

I

The majority cites People v. Sedeno (1974) 10 Cal.3d 703, 715-716 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ] (Sedeno), for the proposition that trial courts have a “sua sponte duty to instruct on lesser necessarily included offenses.” (Maj. opn., ante, at p. 148.) Following today’s decision, a proper citation to Sedeño for this seemingly straightforward proposition will read as follows: Sedeno, supra, 10 Cal.3d at pages 715-716, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ], footnote 12 (abrogating Sedeno's requirement that jury instructions must be given whenever any evidence is presented, no matter how weak) and overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 163 , footnote 10 (abrogating Sedeno's characterization of heat of passion as a defense) and overruled on other…

BAXTER, Justice.

Two young men who were walking by defendant's house got into a fight with a larger group of youths congregated in the driveway. The two sustained cuts and bruises before the fracas ended and they were allowed to leave. The next night, at least one of the pair returned with a group of friends to exact some sort of retaliation. Members of the group taunted 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.

Defendant was charged with murder. The jury also received instructions on justifiable homicide ("reasonable" self-defense) and on the lesser "necessarily included" offenses of voluntary and involuntary manslaughter. The voluntary manslaughter instructions were premised entirely on the theory of "unreasonable" self-defense. (See People v. Flannel (1979) 25 Cal.3d 668, 674-680 , 160 Cal.Rptr. 84 , 603 P.2d 1 ( Flannel ).)

Defendant appealed his murder conviction,…