In a criminal trial, it is ordinarily the trial court's duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed.
Here, defendant was charged with murder. At trial, the parties presented evidence from which the jury could reasonably conclude that he was guilty not of murder, but of voluntary manslaughter, a lesser offense included within the crime of murder. For tactical reasons, however, defendant asked the trial court not to instruct the jury on voluntary manslaughter; the court denied the request. The jury convicted defendant of voluntary manslaughter, and the trial court sentenced him to a 10-year prison term. Defendant now contends that the trial court should not have given the instruction at issue.
We conclude that a defendant may not invoke tactical considerations to deprive the jury of the opportunity to consider whether the defendant is guilty of a lesser offense included within the crime charged. A trial court should instruct the jury on any lesser included offense supported by the evidence, regardless of the defendant's opposition. Thus, the trial court in this case acted properly when, over defendant's objection, it instructed the jury on voluntary manslaughter. We therefore affirm the judgment of the Court of Appeal, which upheld defendant's conviction.
Defendant was charged with the murder of Marco Sanchez. (Pen. Code, § 187; unless otherwise stated, all statutory references are to the Penal Code.) The relevant facts are these:
On the morning of February 22, 1990, while driving her car on Grand Avenue in Pacific Beach, Andrea Barton, defendant's 20-year-old daughter, had an unpleasant encounter with Marco Sanchez, the victim in this case. Eyewitness accounts of this incident differed. Most witnesses, however, testified that Sanchez, whose car was behind Andrea's, honked his horn when Andrea's car stalled in an intersection, and that Andrea responded with a rude gesture. Sanchez then cut into Andrea's lane so close to Andrea's car that she had to brake and swerve to the side of the road to avoid a collision, whereupon Sanchez drove his car next to Andrea's and spat on the closed passenger window of Andrea's car.
Extremely upset over the incident, Andrea drove to defendant's nearby real estate office and told him what had occurred. Defendant suggested that they look for Sanchez's car. Defendant, who managed several apartment buildings and frequently carried large sums of money, had a permit to carry a concealed weapon for business purposes only. He had received training in the use of semiautomatic weapons during the six years he spent in the Marine Corps (six months on active duty, five and one-half years reserve duty), and owned about fifteen guns. He customarily carried a semiautomatic handgun in his pocket, and had one with him on this occasion.
Defendant and Andrea located Sanchez's car in a nearby shopping center. They found Sanchez at one of the stores. A lengthy argument ensued. Defendant waved his finger in Sanchez's face and swore at him. According to one prosecution witness, Sanchez was also mad and swearing, but another prosecution witness described Sanchez as frightened and defensive.
Sanchez left the store, followed by defendant and Andrea. About a minute later, Andrea returned to the store. She told a cashier to call the police because Sanchez's car "is going to get really thrashed."
In the meantime, Sanchez entered another store, where he briefly talked to his 12-year-old sister-in-law, Delicia Goodwin, who had been with him during the incident at the intersection. Sanchez then left the store and walked rapidly to his car, opened the driver's side door and got in. Before Sanchez had a chance to close the car door, defendant drew his gun and moved in front of the door. He assumed what witnesses described as a "police stance,"
Defendant then shot Sanchez. According to some witnesses, Sanchez made an abrupt movement just before the shot was fired; others saw no such movement. The shot struck Sanchez in the back and lodged in his neck; he got out of the car's passenger-side door and staggered to a nearby store, where he collapsed, dead. Defendant waited at the scene for the police to arrive.
Prosecution witness Eugene Wolberg, a police criminalist with the San Diego Police Department, testified that defendant fired the fatal shot while standing three and one-half to four feet from Sanchez. Based on the path traveled by the bullet, Wolberg concluded that at the moment of impact Sanchez was probably leaning over in the driver's seat with his head down, looking away from defendant towards the passenger door; his position was consistent with an attempt either to pick up something from the floorboard or to move to the passenger side of the car. Police found a closed folding knife under the passenger seat and a pair of scissors beneath an electrical cord on the passenger floorboard.
Defendant, testifying on his own behalf, claimed that the shooting was an accident. He gave this version of events: When he and Andrea first encountered Sanchez at the shopping center, Andrea complained to Sanchez about his spitting on her car window. In response, Sanchez "went berserk," and told Andrea, "Well, do something about it, bitch." Andrea and Sanchez then began to argue, soon joined by defendant. As defendant, Andrea, and Sanchez left the store, Sanchez assumed a "fighting stance," and challenged defendant to a fight. Defendant told Andrea to call the police. Saying, "I'm going to go get my witnesses at the store," Sanchez went into a store and came out with a "gal."
Both the prosecution and the defense offered expert testimony regarding the likelihood that defendant could accidentally have discharged the gun. Criminalist Eugene Wolberg, who testified for the prosecution, stated that defendant's gun had a "trigger pull" of 7.1 pounds, meaning that the gun would fire if the trigger was subjected to 7.1 pounds of pressure, which he described as a "medium-weight pull." Because the gun was a "single action" pistol, it was more likely to discharge accidentally than a "double action" pistol, as the former will fire when the trigger has traveled a shorter distance. Defense expert Richard Whalley, a criminalist and former head of the San Diego Police Department's crime laboratory, testified that the trigger on double-action guns must generally travel about two centimeters (twenty millimeters) for the gun to discharge, while defendant's single-action gun would discharge when the trigger traveled only one millimeter, a factor that Whalley considered "very significant" in assessing the likelihood that the fatal bullet that killed Sanchez was discharged accidentally.
In the opinion of defense witness Kevin Gilmartin, a psychiatrist, defendant responded to Sanchez's sudden movement by firing reflexively, "in fear of his life." Another defense witness, psychiatrist Haig Koshkarian, explained that persons who perceive themselves to be in great danger enter a "fight or flight state" in which they react reflexively to any sudden movement or sound.
Defendant also presented character evidence of his dependability, honesty, and lack of ethnic or racial bias, and of Sanchez's reputation for violence.
During a conference on proposed jury instructions, defense counsel asked the trial court not to instruct on voluntary manslaughter (§ 192, subd. (a)) as a lesser offense included in the crime of murder. He contended that since voluntary manslaughter requires an intent to kill, it was inconsistent with the defense theory that the killing of Sanchez was accidental. The prosecutor asked the court to give the instruction, stating: "Whether or not it's [a verdict] that I would be urging the jury to reach, I certainly believe it's one they could arrive at based on the state of the evidence in this case." Over defendant's objection, the trial court instructed the jury that it should convict
Defendant appealed, arguing that the evidence at trial did not support an instruction on voluntary manslaughter, and that the trial court should not have given the instruction over his objection. The Court of Appeal disagreed. It held that a trial court must instruct on every lesser offense included within the charged offense, if supported by the evidence, even when a defendant objects to the instruction as being inconsistent with the defendant's theory of the case. The Court of Appeal concluded that in this case the evidence presented at trial supported a conviction for voluntary manslaughter, and that therefore an instruction on that crime was proper. But the Court of Appeal also pointed out that certain decisions of this court had given rise to confusion regarding the scope of a trial court's relatively broad duty to instruct on lesser included offenses, and its somewhat more limited duty to instruct on possible defenses to the crime charged. To resolve this confusion, we granted defendant's petition for review.
In People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913] (hereafter Sedeno), we explained when a trial court must instruct on lesser included offenses. There, the defendant was charged with murder for shooting a police officer with the officer's own gun. At trial, the defendant argued that he was not guilty of murder because mental illness rendered him incapable of acting with malice. He also contended, based on his own testimony, that the victim was shot when the gun accidentally discharged during a struggle between the officer and himself, and that he lacked the intent to kill. The jury convicted the defendant of first degree murder. On appeal, the defendant argued that the trial court had erred in not instructing the jury on the lesser included offenses of voluntary and involuntary manslaughter and on the defenses of unconsciousness and self-defense. We found no error in the trial court's failure to instruct on voluntary manslaughter, unconsciousness and self-defense, but concluded that the trial court should have instructed the jury on involuntary manslaughter.
In contrast to lesser included offenses, a trial court's duty to instruct, sua sponte, or on its own initiative, on particular defenses is more limited, arising "only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." (Sedeno, supra, 10 Cal.3d at p. 716; see also People v. Montoya (1994) 7 Cal.4th 1027, 1047 [31 Cal.Rptr.2d 128, 874 P.2d 903].)
In a footnote, Sedeno elaborated on the difference between the trial court's limited duty to instruct, sua sponte, on a particular defense, and its broader duty to instruct, sua sponte, on lesser included offenses. After stating that a trial court should not instruct on a defense that is inconsistent with the defendant's theory of the case, Sedeno pointed out that when there is evidence at trial that the defendant is guilty not of the crime charged, but of a lesser included offense, the court must instruct on the lesser offense even when the defendant claims to be innocent of both the greater and the lesser offense. In the court's words: "If it appears to the court ... that there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory. Such inquiry will afford assurance that the theory has not been inadvertently overlooked by counsel. [Citation.] [¶] When the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant under the rule obliging the court to instruct on lesser included offenses discussed supra." (Sedeno, supra, 10 Cal.3d at p. 717, fn. 7, italics added.)
Defendant's proposed rule permitting the defense, upon request, to bar the trial court from instructing the jury on lesser included offenses supported by the evidence would, as just stated, not only impair the jury's search for truth, but would also be unfair to the prosecution. Sometimes the prosecution's evidence that a defendant has committed the crime charged may be relatively weak, whereas the evidence of a lesser included offense may be much stronger. In that case, a prosecutor need not, and generally does not, separately charge a defendant with the lesser included offense. (§ 1159; Stone v. Superior Court (1982) 31 Cal.3d 503, 517 [183 Cal.Rptr. 647, 646 P.2d 809].) If instructions on a lesser included offense could be barred at the defendant's request, the prosecutor would be denied the opportunity to argue to the jury that the defendant, even if not guilty of the crime charged, is at least guilty of the lesser included offense.
As set forth above, sound policy considerations underlie the distinction that Sedeno, supra, 10 Cal.3d 703, drew between a trial court's relatively broad duty to instruct on lesser included offenses and its less expansive duty to instruct on defenses. Nevertheless, defendant insists that Sedeno was undermined by this court's recent decision in People v. Saille (1991) 54 Cal.3d 1103 [2 Cal.Rptr.2d 364, 820 P.2d 588].
In Saille, the defendant shot and killed a patron in a bar. The evidence showed that at the time of the killing the defendant was intoxicated, having a blood-alcohol level of .19 percent. The jury, which was instructed on both first and second degree murder, found that the murder was a deliberate, premeditated killing, and thus was murder of the first degree. On appeal, the defendant argued that the trial court should, on its own initiative, have instructed the jury to consider defendant's intoxication in determining whether he had premeditated and deliberated before the killing. We disagreed, holding that such an instruction would be a "pinpoint instruction" relating specific facts to the elements of the offense, and that the trial court need not give such instructions unless requested by a party. (People v. Saille, supra, 54 Cal.3d at p. 1120.)
Contrary to defendant's assertion, there is no conflict between Saille and Sedeno, supra, 10 Cal.3d 703. As just noted, Saille concerned "pinpoint instructions" relating particular facts to the elements of the offense charged. It did not discuss when a trial court must, on its own initiative, instruct on
Nor is there merit to defendant's argument that Sedeno, supra, 10 Cal.3d 703, cannot be reconciled with the holding in a number of decisions that a defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. (People v. Hardy (1992) 2 Cal.4th 86, 184 [5 Cal.Rptr.2d 796, 825 P.2d 781]; People v. Duncan (1991) 53 Cal.3d 955, 969 [281 Cal.Rptr. 273, 810 P.2d 131]; People v. Cooper (1991) 53 Cal.3d 771, 827-831 [281 Cal.Rptr. 90, 809 P.2d 865]; People v. Graham (1969) 71 Cal.2d 303, 317-319 [78 Cal.Rptr. 217, 455 P.2d 153]; People v. Scobie (1973) 36 Cal.App.3d 97, 101 [111 Cal.Rptr. 600]; see also People v. Gallego (1990) 52 Cal.3d 115, 182-183 [276 Cal.Rptr. 679, 802 P.2d 169].) In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction.
The doctrine of invited error does not, however, vindicate the decision of a trial court to grant a defendant's request not to give an instruction that is otherwise proper: the error is still error. (People v. Graham, supra, 71 Cal.2d at p. 319.) The cases cited in the preceding paragraph and relied on by defendant do not hold that a trial court must honor such a request; they hold only that when the trial court accedes to the defendant's wishes, the defendant may not argue on appeal that in doing so the court committed prejudicial error, thus requiring a reversal of the conviction. These holdings are consistent with the rule set forth in Sedeno, supra, 10 Cal.3d at pages 715-716, that the trial court must instruct on a lesser included offense when the evidence would support a conviction for the offense, notwithstanding the defendant's objection to the instruction.
In the preceding part, we reiterated the soundness of the distinction drawn in Sedeno, supra, 10 Cal.3d 703, between the trial court's broad duty to instruct on lesser included offenses and its narrower obligation to instruct on particular defenses. We recognize, however, that the difference between the two categories is not always clear. This is particularly true with respect to voluntary manslaughter, as discussed below.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. (§ 192.) But a defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" (§ 192, subd. (a)), or when the defendant kills in "unreasonable self-defense" — the unreasonable but good faith belief in having to act in self-defense (see In re Christian S. (1994) 7 Cal.4th 768 [30 Cal.Rptr.2d 33, 872 P.2d 574]; People v. Flannel, supra, 25 Cal.3d 668).
Ordinarily, it is the defendant who offers evidence to show that because the killing occurred in a sudden quarrel or heat of passion, or in unreasonable self-defense, the crime committed is not murder, but only voluntary manslaughter. For this reason, voluntary manslaughter closely resembles an affirmative defense (placing on the defendant the burden of producing evidence of facts which, if believed by the jury, will result in the defendant's acquittal of the crime charged). Because of this similarity, a defendant's attempt to show that a killing was only voluntary manslaughter rather than murder is sometimes referred to as a "partial defense," a phrase that blurs the distinction between lesser included offenses and defenses.
One form of voluntary manslaughter in particular, the one that is predicated on unreasonable self-defense, is quite similar to the "defenses" referred to in Sedeno, supra, 10 Cal.3d at page 716. This similarity arises partly from the use of the word "defense" in the phrase "unreasonable self-defense," and partly from the close link between unreasonable self-defense and an actual defense, that is, true self-defense. The sole difference between true self-defense and "unreasonable self-defense" is that the former applies only when the defendant acts in response to circumstances that cause
In Wickersham, supra, 32 Cal.3d 307, the defendant was charged with murder after she had fatally shot her husband. At trial, she denied intentionally killing her husband, claiming that her husband had attempted to grab the gun, which discharged accidentally during the ensuing struggle. The trial court did not instruct the jury on voluntary manslaughter, and the jury convicted defendant of first degree murder. On appeal, defendant argued that the trial court erred when it failed to instruct the jury, on its own initiative or sua sponte, on the lesser included offense of voluntary manslaughter, either based on a killing occurring in a sudden quarrel or heat of passion, or based on a killing arising from unreasonable self-defense.
Wickersham held that the evidence was insufficient to support an instruction by the trial court on voluntary manslaughter. It reiterated the holding of Sedeno, supra, 10 Cal.3d 703, that a trial court must, sua sponte, instruct on a lesser included offense when the evidence raises a question as to whether all of the elements of the charged offense were present, regardless of the defendant's theory of the case, but that the trial court need not instruct on a defense that is inconsistent with the defendant's theory at trial. Then, in addressing the defendant's contention that the trial court was obligated to instruct the jury sua sponte on unreasonable self-defense, Wickersham stated, without explanation, that "unreasonable self-defense comes within Sedeno's category of `defenses' for purposes of the obligation to instruct sua sponte." (Wickersham, supra, 32 Cal.3d at p. 329.) This language from Wickersham was described by the Court of Appeal in the case now before us as "inexplicable and inconsistent with the theories and rationales developed in Sedeno." We agree.
We therefore disapprove Wickersham's inaccurate assertion that "unreasonable self-defense" is a "defense." (Wickersham, supra, 32 Cal.3d at p. 329.) This does not mean, however, that trial courts must instruct sua sponte on unreasonable self-defense in every murder case. Rather, the need to do so arises only when there is substantial evidence
Having reaffirmed the soundness of our holding in Sedeno, supra, 10 Cal.3d 703, we now determine its applicability here.
Over defendant's objection, the trial court instructed the jury on voluntary manslaughter as a lesser offense included within the charged crime of murder, explaining that if the jury found the existence of one of two circumstances — the killing took place in a sudden quarrel or heat of passion, or defendant acted in the unreasonable but good faith belief that he had to defend himself — it should find that the malice element of murder was not present, and that therefore defendant was guilty not of murder but only of manslaughter. Under the rationale of Sedeno, supra, 10 Cal.3d at pages 715-716, this instruction was proper notwithstanding defendant's objection that it was inconsistent with his theory of the case, so long as the record contained substantial evidence from which a jury could reasonably conclude that defendant was not guilty of murder but only of voluntary manslaughter.
Through the information filed against him, defendant was on notice of the charge brought by the prosecution. The information charged defendant with murder. Because voluntary manslaughter is a lesser offense necessarily included in the crime of murder, the information provided sufficient notice to defendant that the charge against him included the lesser offense of
"[A] defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth." (People v. St. Martin, supra, 1 Cal.3d at p. 533.) In this case, defendant was prepared to roll the dice in a high stakes game of chance, betting that the jury, faced with the choice of convicting him of murder or acquitting him entirely, would find him not guilty. If successful, this gamble would have served defendant's interests. It would not, however, have served the interests of justice, for it would have denied the jury the chance to consider the possibility, between the extremes of a murder conviction and an acquittal, that defendant was guilty of voluntary manslaughter, a lesser offense included in murder. Instructions that fail to inform the jury of its option to convict the defendant of a lesser included offense shown by the evidence are necessarily incomplete. "Trial courts have a sua sponte duty to instruct regarding lesser included offenses because neither the defendant nor the People have a right to incomplete instructions." (People v. Eilers (1991) 231 Cal.App.3d 288, 296 [282 Cal.Rptr. 252].) Thus, the trial court in this case properly instructed the jury on voluntary manslaughter, a lesser offense included in the crime of murder with which defendant was charged.
The judgment of the Court of Appeal is affirmed.
Lucas, C.J., Mosk, J., Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.