Filed 6/3/13




                IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S196365
           v.                        )
                                     )                       Ct.App. 4/1 D057570
AMALIA CATHERINE BRYANT,             )
                                     )                       Riverside County
           Defendant and Appellant.  )                   Super. Ct. No. SWF014495
____________________________________)


        During an altercation in an apartment they shared, defendant Amalia
Catherine Bryant stabbed her boyfriend once in the chest, killing him. The jury
convicted her of second degree murder. On appeal, the Court of Appeal reversed
the murder conviction, concluding that the trial court erred by failing to sua sponte
instruct the jury on voluntary manslaughter as a lesser included offense of murder
on the theory that defendant killed without malice in the commission of an
inherently dangerous assaultive felony. We granted review to decide whether such
a theory of voluntary manslaughter exists and whether the trial court should have
instructed sua sponte on that theory. We conclude that such a killing is not
voluntary manslaughter and that the trial court therefore did not err in failing to so
instruct the jury. Accordingly, we reverse the judgment of the Court of Appeal.

                                          I.

        On November 24, 2005, neighbors responded to the apartment in which
defendant lived with her boyfriend Robert Golden to find defendant screaming and
Golden lying facedown in the front doorway. Defendant was pleading with
Golden to ―wake up.‖ Golden had a stab wound to the chest and no pulse; he was
pronounced dead at the hospital. During two police interviews and in testimony at
trial, defendant later recounted what happened. She stated that during a physical
altercation, she grabbed a knife from the kitchen and threatened to hurt Golden if
he did not let her leave. Golden lunged for the knife, and the two struggled over it.
Defendant broke free with the knife in her hand. When Golden then came toward
defendant, she made a thrusting motion at him with the knife, and it went into his
chest. Defendant claimed she never intended to kill Golden.
       The trial court instructed the jury regarding first degree premeditated
murder, second degree murder, and voluntary manslaughter based upon heat of
passion and unreasonable self-defense, as well as the defense of reasonable self-
defense. The jury convicted defendant of second degree murder and found true
the allegation that she personally used a deadly weapon. The trial court sentenced
defendant to 15 years to life in prison for murder plus a consecutive year for the
weapon enhancement.
       On appeal, defendant claimed the trial court erred by not sua sponte
instructing on involuntary manslaughter as a lesser included offense of murder on
the theory that defendant killed unlawfully in the commission of misdemeanor
brandishing a weapon or in the commission of a lawful act committed with
criminal negligence. The Attorney General responded that defendant‘s conduct
exceeded brandishing a weapon and that no evidence showed she had performed a
lawful act negligently. Thereafter, on its own initiative, the Court of Appeal
requested supplemental briefing on the following question: ―Did the trial court
commit reversible error by not instructing the jury sua sponte that an unintentional
killing without malice during the course of [an] inherently dangerous assaultive


                                          2
felony constitutes voluntary manslaughter? (See People v. Garcia (2008) 162
Cal.App.4th 18.)‖ The Court of Appeal instructed the parties to ―assume that the
People are correct that there is substantial evidence that appellant committed, at a
minimum, a felony assault with a deadly weapon (Pen. Code, § 245, subd.
(a)(1)).‖ Defendant argued that the trial court should have the jury instructed on
voluntary manslaughter based upon that theory, and that the error was prejudicial.
The Attorney General responded that there was no evidentiary basis for the
instruction and, alternatively, that any error was harmless. The Court of Appeal
reversed defendant‘s murder conviction, concluding that ―the trial court erred in
failing to instruct the jury on the lesser included offense of voluntary
manslaughter, based on the theory articulated in Garcia.‖ We granted the
Attorney General‘s petition for review and now reverse.
                                          II.
       Murder is defined as ―the unlawful killing of a human being, or a fetus,
with malice aforethought.‖ (Pen. Code, § 187, subd. (a); all further statutory
references are to the Penal Code.) Malice aforethought ―may be express or
implied. It is express when there is manifested a deliberate intention unlawfully to
take away the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing show an
abandoned and malignant heart.‖ (§ 188.) As we have noted, the statutory
definition of implied malice ―is quite vague‖ and ―permits, even requires, judicial
interpretation.‖ (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun); see People
v. Lasko (2000) 23 Cal.4th 101, 107 (Lasko); People v. Dellinger (1989) 49 Cal.3d
1212, 1217 [―The statutory definition of implied malice has never proved of much
assistance in defining the concept in concrete terms.‖].) ―We have interpreted
implied malice as having ‗both a physical and a mental component. The physical


                                          3
component is satisfied by the performance of ―an act, the natural consequences of
which are dangerous to life.‖ [Citation.] The mental component is the
requirement that the defendant ―knows that his conduct endangers the life of
another and . . . acts with a conscious disregard for life.‖ [Citation.]‘ [Citation.]‖
(Chun, at p. 1181; see People v. Phillips (1966) 64 Cal.2d 574, 587, overruled on
another ground in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12 (Flood).)
       ―A defendant may also be found guilty of murder under the felony-murder
rule. The felony-murder rule makes a killing while committing certain felonies
murder without the necessity of further examining the defendant‘s mental state.‖
(Chun, supra, 45 Cal.4th at p. 1182.) ―Under the felony-murder doctrine, when
the defendant or an accomplice kills someone during the commission, or attempted
commission, of an inherently dangerous felony, the defendant is liable for either
first or second degree murder, depending on the felony committed. If the felony is
listed in section 189, the murder is of the first degree; if not, the murder is of the
second degree. [Citations.] Felony-murder liability does not require an intent to
kill, or even implied malice, but merely an intent to commit the underlying felony.
[Citation.]‖ (People v. Gonzalez (2012) 54 Cal.4th 643, 654, italics omitted; see
Chun, at p. 1182.) ―The felony-murder doctrine, whose ostensible purpose is to
deter those engaged in felonies from killing negligently or accidentally, operates to
posit the existence of that crucial mental state — and thereby to render irrelevant
evidence of actual malice or the lack thereof — when the killer is engaged in a
felony whose inherent danger to human life renders logical an imputation of
malice on the part of all who commit it.‖ (People v. Satchell (1971) 6 Cal.3d 28,
43, overruled on another ground in Flood, supra, 18 Cal.4th at p. 490, fn. 12.)
       Although we affirmed the constitutionality of the second degree felony-
murder rule in Chun, we recognized that ―the rule has often been criticized and,


                                           4
indeed, described as disfavored.‖ (Chun, supra, 45 Cal.4th at p. 1188.) As such,
we have ―restricted its scope in at least two respects to ameliorate its perceived
harshness.‖ (Ibid.) First, the second degree felony-murder rule applies only to
felonies inherently dangerous to human life. (People v. Burroughs (1984) 35
Cal.3d 824, 829 (Burroughs); People v. Williams (1965) 63 Cal.2d 452, 457.)
Second, we have limited the second degree felony-murder rule through the so-
called merger doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522
(Ireland).
       In Ireland, we concluded that second degree felony murder could not be
predicated upon a killing during the commission of assault with a deadly weapon.
We explained: ―To allow such use of the felony-murder rule would effectively
preclude the jury from considering the issue of malice aforethought in all cases
wherein homicide has been committed as a result of a felonious assault — a
category which includes the great majority of all homicides. This kind of
bootstrapping finds support neither in logic nor in law. We therefore hold that a
second degree felony-murder instruction may not properly be given when it is
based upon a felony which is an integral part of the homicide and which the
evidence produced by the prosecution shows to be an offense included in fact
within the offense charged.‖ (Ireland, supra, 70 Cal.2d at p. 539.) We clarified in
Chun that the merger rule applies when ―the underlying felony is assaultive in
nature,‖ including situations where ―the elements of the crime have an assaultive
aspect . . . even if the elements also include conduct that is not assaultive.‖ (Chun,
supra, 45 Cal.4th at p. 1200.)
       Thus, under the felony-murder rule, a defendant who kills in the
commission of an inherently dangerous felony not enumerated in section 189 is
liable for second degree murder. However, under Ireland and Chun, if that


                                          5
inherently dangerous felony ―is assaultive in nature‖ (Chun, supra, 45 Cal.4th at
p. 1200), the felony-murder rule does not apply, and a defendant may not be found
guilty of murder without proof of malice. Here, as the Court of Appeal reasoned,
defendant, if she committed any crime at all, committed at least assault with a
deadly weapon, an offense we assume to be inherently dangerous. Under the
merger doctrine, that offense is an assaultive felony to which the felony-murder
rule does not apply, and a defendant who kills in the commission of assault with a
deadly weapon cannot be convicted of murder on that basis alone. Proof of malice
is required. But suppose, as the Court of Appeal posited, that the killing was
committed without malice. In that case, what offense has defendant committed?
       We addressed a related question in Burroughs, in which we held that a
killing without malice in the commission of a noninherently dangerous felony
would constitute involuntary manslaughter if ―committed without due caution and
circumspection.‖ (Burroughs, supra, 35 Cal.3d at p. 835.) In that case, the
defendant, a ―self-styled ‗healer,‘ ‖ convinced a cancer patient to undergo the
defendant‘s alternative treatments, culminating in ― ‗deep‘ abdominal massages,‖
which led to ―a massive hemorrhage‖ causing the victim‘s death. (Id. at pp. 826–
828.) The jury convicted the defendant of second degree felony murder on the
theory that the killing occurred in the commission of felony practicing medicine
without a license. Burroughs reversed the murder conviction, concluding that
practicing medicine without a license could not support a felony-murder
conviction because it was not an inherently dangerous felony. (Id. at pp. 829–
833.) To give guidance to the trial court on remand, Burroughs said the defendant
―was susceptible to a possible conviction of involuntary manslaughter.‖ (Id. at
p. 834.) Burroughs reasoned in part that the defendant in that case could not be
convicted of voluntary manslaughter because there had been no evidence that the


                                         6
defendant had any intent to kill his victim. (Id. at p. 835, fn. 8.) This conclusion
followed from our statements in a number of prior cases that intent to kill is an
element of voluntary manslaughter. (See, e.g., People v. Forbs (1965) 62 Cal.2d
847, 852; People v. Bridgehouse (1956) 47 Cal.2d 406, 413.)
       We have since held, however, that intent to kill is not an element of
voluntary manslaughter. (See Lasko, supra, 23 Cal.4th at pp. 108–111; People v.
Blakeley (2000) 23 Cal.4th 82, 88–91 (Blakeley).) In the context of heat of
passion voluntary manslaughter, we reasoned in Lasko that ―[j]ust as an unlawful
killing with malice is murder regardless of whether there was an intent to kill, an
unlawful killing without malice (because of a sudden quarrel or heat of passion) is
voluntary manslaughter, regardless of whether there was an intent to kill.‖ (Lasko,
at pp. 109–110.) In Blakeley, we rejected the defendant‘s claim that an
unintentional killing in unreasonable self-defense constituted involuntary
manslaughter, noting that the defendant‘s position was based on the erroneous
―assumption that intent to kill is a necessary element of voluntary manslaughter.‖
(Blakeley, at p. 89.)
       Garcia, the decision on which the Court of Appeal below premised its
holding, relied on these decisions in suggesting that a killing committed without
malice in the commission of an inherently dangerous assaultive felony constitutes
voluntary manslaughter. (People v. Garcia, supra, 162 Cal.App.4th at p. 31.) The
defendant in Garcia struck the victim in the face with the butt of a shotgun. The
victim fell, fractured his skull on the sidewalk, and died. The jury acquitted the
defendant of murder but convicted him of voluntary manslaughter. (Id. at p. 23.)
On appeal, the defendant argued that the trial court should have instructed the jury
regarding involuntary manslaughter ―because there was substantial evidence the
killing of [the victim] was committed without malice and without either an intent


                                          7
to kill or conscious disregard for human life and, therefore, was neither murder nor
voluntary manslaughter.‖ (Id. at p. 26.) Garcia accepted the premise that a killing
without malice committed in the course of an inherently dangerous assaultive
felony constitutes a form of manslaughter. (Id. at pp. 31–32.) However, it
nevertheless rejected the defendant‘s claim. Garcia reasoned: ―In light of the
Supreme Court‘s holdings in [Blakeley] and [Lasko] that a specific intent to kill is
not an element of the crime of voluntary manslaughter, and particularly its express
disapproval of the statement in [Burroughs] . . . that proof of such an intent is
required [citation], we . . . conclude an unlawful killing during the commission of
an inherently dangerous felony, even if unintentional, is at least voluntary
manslaughter.‖ (Garcia, at p. 31.)
       The Attorney General contends that such a killing cannot be voluntary
manslaughter because ―either intent to kill or a conscious disregard for life is an
essential element of voluntary manslaughter.‖ We understand the term ―conscious
disregard for life‖ to refer to the mental component of our definition of implied
malice — i.e., that the act which resulted in death be ― ‗performed by a person
who knows that his conduct endangers the life of another and who acts with
conscious disregard for life‘ [citation].‖ (Lasko, supra, 23 Cal.4th at p. 107; see
ibid. [referring to this mental state ―[f]or convenience‖ simply as ― ‗conscious
disregard for life‘ ‖]; Chun, supra, 45 Cal.4th at p. 1182 [same].) We conclude
that the Attorney General‘s understanding of voluntary manslaughter is correct.
       A defendant commits voluntary manslaughter when a homicide that is
committed either with intent to kill or with conscious disregard for life — and
therefore would normally constitute murder — is nevertheless reduced or
mitigated to manslaughter. (See 2 LaFave, Substantive Criminal Law (2d ed.
2003) § 15.2(a), p. 493 [―The usual view of voluntary manslaughter . . .


                                          8
presupposes an intent to kill (or perhaps an intent to do serious injury or to engage
in very reckless conduct), holding that in spite of the existence of this bad intent
the circumstances may reduce the homicide to manslaughter.‖].) We have often
described both provocation and unreasonable self-defense as ―negating‖ the
malice required for murder or as causing that malice to be ―disregarded.‖ (See,
e.g., People v. Milward (2011) 52 Cal.4th 580, 587 [―Malice is negated when the
defendant kills as a result of provocation or in ‗imperfect self-defense.‘ ‖]; People
v. Wright (2005) 35 Cal.4th 964, 966 [―[A]n actual, though unreasonable, belief in
the need to defend oneself from an imminent threat of death or great bodily injury
negates the malice element of murder, reducing the offense to manslaughter.‖];
Lasko, supra, 23 Cal.4th at p. 110 [― ‗[S]ince the homicide must be committed
under circumstances which would otherwise be murder, defendant may act with
the intent to kill or with any mental state which amounts to ―malice‖; the malice is
negated by the provocation and the offense is mitigated from murder to voluntary
manslaughter.‘ (2 Wharton‘s Criminal Law (15th ed. 1994) § 155, pp. 347–
348.)‖]; People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman) [―[H]eat of
passion and unreasonable self-defense reduce an intentional, unlawful killing from
murder to voluntary manslaughter by negating the element of malice that
otherwise inheres in such a homicide . . . .‖]; People v. Freel (1874) 48 Cal. 436,
437 (Freel) [―[W]hen the mortal blow is struck in the heat of passion, excited by a
quarrel, sudden, and of sufficient violence to amount to adequate provocation, the
law, out of forbearance for the weakness of human nature, will disregard the actual
intent and will reduce the offense to manslaughter.‖].)
       Although we have on occasion employed somewhat different formulations
to define the offense of voluntary manslaughter, we have never suggested that it
could be committed without either an intent to kill or a conscious disregard for


                                          9
life. In People v. Conley (1966) 64 Cal.2d 310 (Conley), for example, we
developed the doctrine, since abrogated by statute (see People v. Saille (1991) 54
Cal.3d 1103, 1113; In re Christian S. (1994) 7 Cal.4th 768, 774), that a
defendant‘s diminished mental capacity could reduce murder to voluntary
manslaughter. We reasoned that malice aforethought requires that a defendant
possess an ―awareness of the obligation to act within the general body of laws
regulating society‖ and that diminished capacity could therefore preclude a
defendant from having the requisite mens rea for murder. (Conley, supra, 64
Cal.2d at p. 322; cf. § 188 [now providing that ―[n]either an awareness of the
obligation to act within the general body of laws regulating society nor acting
despite such awareness is included within the definition of malice‖].) We applied
similar logic in Flannel to justify the doctrine of imperfect self-defense, reasoning
in part that ―an individual cannot genuinely perceive the need to repel imminent
peril or bodily injury and simultaneously be aware that society expects conformity
to a different standard.‖ (People v. Flannel (1979) 25 Cal.3d 668, 679 (Flannel).)
       The thrust of our reasoning in Conley and Flannel was that the offense
constituted voluntary manslaughter instead of murder because a key element of
malice aforethought was lacking, not because malice aforethought was actually
present but was ―negated‖ or ―disregarded‖ due to some other consideration as in
cases like Breverman, supra, 19 Cal.4th at page 154, and Freel, supra, 48 Cal. at
page 437. Crucially, however, we did not hold in Conley or Flannel — or in any
other case applying similar logic (cf. In re Christian S., supra, 7 Cal.4th at
pp. 778–780) — that a killing could be voluntary manslaughter absent proof that
the defendant possessed the other basic mental requirements of malice, namely,
either intent to kill or conscious disregard for life. Indeed, in Conley and Flannel,
we confronted only the question of whether diminished capacity or imperfect self-


                                          10
defense could reduce an intentional killing to voluntary manslaughter. (See
Conley, supra, 64 Cal.2d at pp. 318, 323; Flannel, supra, 25 Cal.3d at p. 681.)
       Thus, the offenses that constitute voluntary manslaughter — a killing upon
a sudden quarrel or heat of passion (§ 192, subd. (a)), a killing in unreasonable
self-defense (Flannel, supra, 25 Cal.3d 668), and, formerly, a killing committed
by one with diminished capacity (Conley, supra, 64 Cal.2d 310) — are united by
the principle that when a defendant acts with an intent to kill or a conscious
disregard for life (i.e., the mental state ordinarily sufficient to constitute malice
aforethought), other circumstances relating to the defendant‘s mental state may
preclude the jury from finding that the defendant acted with malice aforethought.
But in all of these circumstances, a defendant convicted of voluntary manslaughter
has acted either with an intent to kill or with conscious disregard for life.
       In concluding that intent is not a necessary element of voluntary
manslaughter, Lasko and Blakeley did not hold that a defendant may be found
guilty of voluntary manslaughter when he kills unintentionally and without
conscious disregard for life. Instead, Lasko and Blakeley clarified that not all
convictions for voluntary manslaughter must result from killings that would
otherwise constitute intentional murder but for the circumstances negating malice.
(See Lasko, supra, 23 Cal.4th at pp. 109–111; Blakeley, supra, 23 Cal.4th at
p. 89.) Indeed, we were careful in Lasko and Blakeley to state our holding that an
unintentional killing may constitute voluntary manslaughter in terms that
expressly acknowledged that the defendants in those cases had been acting ―with
conscious disregard for life‖ and with the knowledge that their conduct was life
endangering. (Lasko, supra, 23 Cal.4th at p. 104; Blakeley, supra, 23 Cal.4th at
p. 85.) It was for this reason that the court in Blakeley observed that it had ―no
quarrel‖ with Justice Mosk‘s contention in dissent ―that a defendant who kills in


                                           11
unreasonable self-defense may sometimes be guilty of involuntary manslaughter.‖
(Blakeley, supra, 23 Cal.4th at p. 91; see id. at p. 99 (dis. opn. by Mosk, J.).)
Because the court had concluded only that ―a defendant who, with the intent to kill
or with conscious disregard for life, unlawfully kills in unreasonable self-defense
is guilty of voluntary manslaughter‖ (Blakeley, at p. 91), Justice Mosk likewise
had ―no quarrel with [the majority‘s] view‖ (id. at p. 99, fn. 2 (dis. opn. by Mosk,
J.)).
        The offenses we have held to constitute voluntary manslaughter are distinct
from the offense we consider here. A defendant who has killed without malice in
the commission of an inherently dangerous assaultive felony must have killed
without either an intent to kill or a conscious disregard for life. Such a killing
cannot be voluntary manslaughter because voluntary manslaughter requires either
an intent to kill or a conscious disregard for life. To the extent that People v.
Garcia, supra, 162 Cal.App.4th 18 suggested otherwise, it is now disapproved.
        Because a killing without malice in the commission of an inherently
dangerous assaultive felony is not voluntary manslaughter, the trial court could not
have erred in failing to instruct the jury that it was. We decline to address
defendant‘s alternative contention that because assault with a deadly weapon is not
an inherently dangerous felony, the trial court erred in failing to instruct the jury
on the theory of involuntary manslaughter recognized in Burroughs, supra, 35
Cal.3d 824. This contention was not considered by the Court of Appeal and is
distinct from the question on which we granted review.




                                          12
                                CONCLUSION

      We reverse the Court of Appeal‘s judgment reversing defendant‘s murder
conviction and remand for further proceedings consistent with this opinion.
                                                LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.
           BAXTER, J.
           WERDEGAR, J.
           CHIN, J.
           CORRIGAN, J.




                                        13
                 CONCURRING OPINION BY KENNARD, J.




       Defendant was charged with murder after fatally stabbing her boyfriend
during an argument. Defendant testified that she ―thrust [a] knife at‖ the victim as
he lunged at her, causing the knife to enter his chest, but the stabbing ―wasn‘t
deliberate.‖
       The trial court instructed the jury on first and second degree murder. The
court also instructed the jury on voluntary manslaughter, a lesser offense
necessarily included within the greater crime of murder, based on two theories:
that defendant killed her boyfriend in a sudden quarrel or heat of passion, and that
she killed him in an unreasonable, but genuine, belief in the necessity of self-
defense. The jury convicted defendant of second degree murder.
       The Court of Appeal reversed the judgment, holding that the trial court
should have instructed the jury on a third theory of voluntary manslaughter. In the
Court of Appeal‘s view, a killing without malice committed during an inherently
dangerous assaultive felony is voluntary manslaughter, and here the jury could
reasonably have concluded that the killing occurred during an assault with a
deadly weapon (Pen. Code, § 245, subd. (a)(1)).1 Today this court‘s majority
rejects that theory, holding that a killing done in this manner is not voluntary


1      All statutory citations are to the Penal Code.

                                          1
manslaughter. I agree. I write separately to set forth my views on a matter that,
although not a ground on which this court granted review, is an important question
closely connected to the facts of this case: Can an assault with a deadly weapon
constitute an unlawful act that makes a killing occurring during the assault
involuntary manslaughter? My answer is ―yes.‖

                                          I
       As relevant here, involuntary manslaughter is statutorily defined as an
unlawful killing that takes place ―in the commission of an unlawful act, not
amounting to felony.‖ (§ 192, subd. (b), italics added.) Unquestionably, a killing
during an assault with a deadly weapon is a killing ―in the commission of an
unlawful act.‖ But what about the statute‘s immediately following phrase, ―not
amounting to felony?‖ Did the Legislature, through that wording, intend to
preclude a conviction for involuntary manslaughter when the killing happens
during any unlawful act that is a felony?2 That is the issue I explore below.
       The statutory phrase ―not amounting to felony‖ has its origins in the
common law, which is a ―body of judge-made law . . . developed originally in
England . . . .‖ (Garner, A Dictionary of Modern Legal Usage (2d ed. 1995)
p. 177.) The phrase can be traced to the late eighteenth century, when Sir William
Blackstone published his famous treatise, Commentaries on the Laws of England,
which summarized English common law. (See People v. Stuart (1956) 47 Cal.2d

2      Assault with a deadly weapon is not a felony in its purest sense but a
―wobbler,‖ an offense that, at the prosecutor‘s discretion, can be charged as either
a felony or a misdemeanor. For the purposes of my analysis here, however, I
assume for the sake of argument that the term ―felony‖ in the phrase ―not
amounting to felony‖ in section 192‘s subdivision (b) includes wobblers. For if
assault with a deadly weapon is regarded as a misdemeanor, it necessarily
qualifies as ―an unlawful act, not amounting to felony‖ under that subdivision, in
which case a killing that occurs in the commission of such an offense is
involuntary manslaughter, as explained in the text of this opinion.

                                          2
167, 173 [―Words such as ‗unlawful act, not amounting to felony‘ have been
included in most definitions of manslaughter since the time of Blackstone . . . .‖];
see also People v. Wells (1996) 12 Cal.4th 979, 986 [same].)
       Under that body of common law, a killing committed during a felony was
murder (see Browne, Blackstone Commentaries on the Law (Gavit ed. 1941)
p. 835 [―And if one intends to commit felony, and undesignedly kills a man, it is
murder.‖]; 1 Michie, A Treatise on the Law of Homicide (1914) p. 112 [―The rule
of the common law is that when death occurs by the act of one who is in pursuit of
an unlawful design, without any intention to kill, it will be either murder or
manslaughter, according as the intended offense is a felony or only a
misdemeanor.‖]; 1 Warren on Homicide (1938) § 74, p. 320 [same]). Thus, the
common law phrase ―not amounting to felony‖ served to distinguish involuntary
manslaughter from felony murder. That phrase eventually made its way into
California‘s involuntary manslaughter statute, as discussed below.
       California‘s first penal law was the Crimes and Punishments Act of 1850
(Act of 1850) (Stats. 1850, ch. 99, p. 229). Section 25 defined involuntary
manslaughter in these words: ―Involuntary manslaughter shall consist in the
killing of a human being, without any intent so to do; in the commission of an
unlawful act, or a lawful act, which probably might produce such a consequence in
an unlawful manner; Provided, that where such involuntary killing shall happen in
the commission of an unlawful act, which in its consequences naturally tends to
destroy the life of a human being, or is committed in the prosecution of a felonious
intent, the offense shall be deemed and adjudged to be murder.‖ (Stats. 1850, ch.
99, § 25, p. 231.)
       When the California Legislature thereafter, in 1872, enacted section 192
(defining both voluntary and involuntary manslaughter) as part of California‘s first
Penal Code, it replaced the above quoted concluding proviso in section 25 of the

                                          3
Act of 1850 with the phrase ―not amounting to felony.‖ Recently, in People
v. Chun (2009) 45 Cal.4th 1172 (Chun), this court explained: ―The proviso [in
section 25] simply [made] clear that involuntary manslaughter does not include
killings in the course of a felony, which remain murder. . . . The new section 192
merely simplified the definition of involuntary manslaughter by replacing the
earlier proviso with the new language, ‗not amounting to felony.‘ In this way, the
Legislature avoided the awkwardness of having a broad definition of involuntary
manslaughter followed by a proviso limiting that definition.‖ (Chun, supra, at
p. 1186.)
       Thus, when the 1872 Legislature defined involuntary manslaughter in
section 192 as a killing occurring ―in the commission of an unlawful act, not
amounting to felony,‖ it must have meant that a killing during an unlawful act is
involuntary manslaughter unless the unlawful act is the type of felony that turns
the killing into the greater crime of murder. Numerous felonies are of this type: A
killing during any of the felonies specified in section 189 (arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, and certain specified sex
offenses) is first degree murder under the felony murder rule, and a killing during
a nonassaultive felony that is inherently dangerous to life is second degree murder
under the second degree felony-murder rule (see Chun, supra, 45 Cal.4th at
pp. 1188, 1200). But the felony of assault with a deadly weapon is not listed in
section 189‘s enumerated felonies. Nor is that offense a nonassaultive felony
inherently dangerous to life; rather, it is an assaultive felony, to which, Chun said,
the second degree felony-murder rule does not apply.3 A killing during an assault

3      Although the second degree felony-murder rule ―originally applied to all
felonies‖ (Chun, supra, 45 Cal.4th at p. 1188), the law has evolved such that not
every felony can support a murder conviction under the second degree felony-
murder rule. This court held in Chun that the rule does not apply to assaultive
felonies because of the ―merger doctrine,‖ which originated in this court‘s decision

                                          4
with a deadly weapon can be murder if the prosecution proves that the defendant
acted with malice aforethought; but the circumstance that a killing occurs during
an assault with a deadly weapon does not make the killing murder, because assault
with a deadly weapon is not one of the felonies described above. It follows,
therefore, that a killing during an assault with a deadly weapon is involuntary
manslaughter.
       Moreover, even if one were to assume that a killing during an assault with a
deadly weapon is always murder, the killer could still be convicted of the lesser
crime of involuntary manslaughter, because the phrase ―not amounting to felony‖
in section 192‘s subdivision (b) (describing involuntary manslaughter as a killing
during an ―unlawful act, not amounting to felony‖) is not an element of
involuntary manslaughter. On point here is this court‘s decision in People v. Rios
(2000) 23 Cal.4th 450. That case construed section 192‘s introductory sentence,
which describes manslaughter as ―the unlawful killing of a human being without
malice.‖ (Italics added.) The italicized words, Rios said, do not constitute an
element of manslaughter (whether voluntary or involuntary), and a defendant who
kills with malice can nevertheless be convicted of manslaughter, because the
words ―without malice‖ merely describe the difference between manslaughter and
murder (an unlawful killing without malice can only be manslaughter, while an
unlawful killing with malice is also murder). (Id. at pp. 465, 469; see also People
v. Milward (2011) 52 Cal.4th 580, 587 [holding that under Rios‘s reasoning the
phrase ―other than a firearm,‖ as it appears in § 245‘s subd. (a)(1), which describes



in People v. Ireland (1969) 70 Cal.2d 522. ―The merger doctrine developed due to
the understanding that the underlying felony must be an independent crime and not
merely the killing itself. Thus, certain underlying felonies ‗merge‘ with the
homicide and cannot be used for purposes of felony murder.‖ (Chun, supra, 45
Cal.4th at p. 1189.)

                                         5
the crime of ―assault . . . with a deadly weapon . . . other than a firearm,‖ is not an
element of that crime].)
       Similarly, the phrase ―not amounting to felony‖ in the involuntary
manslaughter statute (§ 192, subd. (b)) simply describes the difference between
involuntary manslaughter and murder, namely, that a killing during an unlawful
act ―not amounting to felony‖ is involuntary manslaughter, whereas a killing in the
commission of certain felonies (see p. 4, ante) constitutes the greater crime of
murder. Thus, the statutory phrase in question does not describe an element of
involuntary manslaughter. Consequently, a killing committed during an unlawful
act amounting to a felony is involuntary manslaughter, notwithstanding the
appearance of the phrase ―not amounting to felony‖ in section 192‘s subdivision
(b). Any other conclusion would lead to the absurdity that a defendant who killed
in the commission of a less serious unlawful act (i.e., a misdemeanor) could be
convicted of involuntary manslaughter, but a defendant who killed in the
commission of a more serious unlawful act (i.e., a felony) could not.

                                           II
       I now turn to a jury instruction issue. Because the defense here presented
evidence from which the jury could have reasonably concluded that defendant
lacked malice, but killed while committing an assault with a deadly weapon (see
p. 1, ante), a jury instruction on involuntary manslaughter as a lesser offense
necessarily included within the charged crime of murder would have been proper.
The trial court, however, had no duty to give such an instruction on its own
initiative, as explained below.
       Ordinarily, a trial court must instruct the jury, even without a request, on
any lesser included offense that ―find[s] substantial support in the evidence.‖
(People v. Haley (2004) 34 Cal.4th 283, 312.) This duty arises from the court‘s


                                           6
obligation to ―instruct on the general principles of law governing the case.‖
(People v. Flannel (1979) 25 Cal.3d 668, 681.) But a trial court has no duty to
instruct on a legal principle that has been so ―obfuscated by infrequent reference
and inadequate elucidation‖ that it cannot be considered a general principle of law.
(Ibid.) That is the case here. Therefore, the trial court here had no duty to instruct
the jury, on the court‘s own initiative, on involuntary manslaughter, a lesser
offense necessarily included in the charged crime of murder.


                                          KENNARD, J.




                                          7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Bryant
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 198 Cal.App.4th 134
Rehearing Granted

__________________________________________________________________________________

Opinion No. S196365
Date Filed: June 3, 2013
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Timothy F. Freer

__________________________________________________________________________________

Counsel:

Anthony J. Dain, under appointment by the Supreme Court, and Eric R. Larson for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons
and Julie L. Garland, Assistant Attorneys General, James H. Flaherty III, Steven T. Oetting, Kristen
Kinnaird Chenelia and Lynne McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.




                                                   1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Anthony J. Dain
330 J Street, #609
San Diego, CA 92101
(619) 238-5575

Lynne McGinnis
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 525-4232




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