556 P.2d 777 (Cal. 1976)
Albert Joseph Berry, a 46-year-old cook, married 20-year-old Rachel Pessah from Israel on May 27, 1974.1 Three days later Rachel traveled to Israel alone and returned on July 13, 1974.2 Upon her return she informed Berry that she had fallen in love with a man named Yako while in Israel, had engaged in sexual relations with him, and wished to obtain a divorce so that Yako could come to the United States to claim her.3
Over the following two weeks Rachel alternated between taunting Berry about her relationship with Yako and sexually arousing him while indicating a desire to stay with him.4 On July 22, 1974, after attending a movie together, Rachel told Berry she was saving herself for Yako, leading to an argument during which Berry choked her into unconsciousness.5 Rachel was treated at a hospital where she reported her strangulation by defendant to an officer of the San Francisco Police Department, and as a result of the interview a warrant was issued for defendant's arrest on July 25.6
On July 26, 1974, Berry returned to the apartment and encountered Rachel.7 After she began screaming, Berry strangled her with a telephone cord.8 He later confessed to the killing to his friend Jean Berk.9 Police discovered Rachel's body on July 27 after Berk and others reported a possible homicide.10 Berry was arrested on August 1, 1974.11
At trial Berry did not deny the strangling but presented testimony from himself and psychiatrist Dr. Martin Blinder that Rachel's provocatory conduct over the two-week period had placed him in a state of uncontrollable rage.12 The jury convicted Berry of first-degree murder and assault by means of force likely to produce great bodily injury.13 He was sentenced to state prison and appealed the judgment to the Supreme Court of California.14
Whether the trial court erred by refusing to instruct the jury on voluntary manslaughter based on sudden quarrel or heat of passion?15
Voluntary manslaughter is the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion under Penal Code section 192.16 The heat of passion must be such as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.17 The defendant's reason must be disturbed or obscured by some passion to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection.18 Verbal provocation may be sufficient and a series of events over a considerable period of time may arouse the requisite passion.19
Yes. The established facts demonstrate that Rachel alternated between taunting Berry about her sexual relationship with Yako and sexually arousing him over the two-week period after her return from Israel on July 13, 1974.20 This course of conduct included showing pictures of herself with Yako, claiming she might be pregnant by him, demanding sex in the car then rejecting Berry upon reaching the apartment, and announcing at the movie that she was saving herself for Yako.21 Both Berry and Dr. Blinder testified that this provocatory conduct placed Berry in a state of uncontrollable rage when he strangled Rachel on July 26.22
The twenty-hour period Berry waited in the apartment did not break the chain of provocation because the final culmination occurred when Rachel began screaming upon seeing him.23
The trial court erred by refusing to instruct the jury on voluntary manslaughter based on sudden quarrel or heat of passion.24
Whether the trial court erred by refusing to instruct the jury on voluntary manslaughter in the context of a diminished capacity defense?25
A defendant is entitled to a voluntary manslaughter instruction based on diminished capacity.26 This applies when evidence shows that mental illness or mental defect reduced the defendant's mental capacity so that he was unable to comprehend his duty to govern his actions in accordance with the law, thereby negating malice aforethought.27 The sine qua non of such a showing is evidence of mental illness or mental defect.28 An altered mental state arising solely from external provocation does not qualify as diminished capacity.29
No. The established facts contain no evidence that Berry suffered from mental illness or mental defect.30 Dr. Blinder testified that Berry was sane, neither schizophrenic nor psychotic, and that his state of uncontrollable rage was the product of contending with Rachel's provocative conduct rather than any underlying mental condition.31 Because the record lacks the requisite evidence of mental illness or defect, the trial court properly refused the diminished capacity instruction.32
The trial court did not err by refusing to instruct the jury on voluntary manslaughter in the context of a diminished capacity defense.33
Whether the failure to instruct on voluntary manslaughter based on heat of passion was prejudicial error requiring reversal of the first-degree murder conviction?34
Yes. Berry's entire defense to the first-degree murder count rested on the theory that Rachel's two-week course of provocatory conduct placed him in a heat of passion.37 The instructions given made only passing reference to heat of passion and provocation for the limited purpose of distinguishing first-degree from second-degree murder.38 The instructions provided no clear direction to the jury to consider whether an ordinary person of average disposition would have been provoked into acting rashly by the described conduct.39
Therefore the jury's first-degree murder verdict did not necessarily resolve the omitted factual question against Berry.40
The failure to instruct on voluntary manslaughter based on heat of passion was prejudicial error requiring reversal of the first-degree murder conviction.41
Whether the trial court erred by failing to instruct sua sponte on simple assault as a lesser included offense of the assault charge?42
No. The established facts show that Berry choked Rachel until she became unconscious on July 22, 1974, and that this conduct necessarily involved force likely to produce great bodily injury.45 No evidence in the record would have supported a finding of simple assault.46 The trial court therefore did not err by failing to instruct sua sponte on the lesser offense.47
The trial court did not err by failing to instruct sua sponte on simple assault as a lesser included offense of the assault charge.48