Moye

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 *541 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 ‘ “ordinary [person] of average disposition ... to act rashly or without due deliberation and reflection, and from this passion rather than…

Dissenting. — 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 [ 80 Cal.Rptr.3d 126 , 187 P.3d 970 ]; People v. Flannel (1979) 25 Cal.3d 668, 680-683 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ]), 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. 540) 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…

Concurring. — 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 [ 299 P.2d 243 ]. As the majority 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. 555-557.)

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 a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a).) This is so even though, as the majority…

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.

(1) 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 `"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion…