The Volokh Conspiracy

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Racist Insults to Third Parties, Reported Second-Hand, Not Sufficient Provocation to Downgrade Murder to Manslaughter

An interesting illustration from a recent California Court of Appeal decision.


From People v. Anderson, decided yesterday by the California Court of Appeal (Judge Elwood Lui, joined by Judges Victoria Chavez and Brian Hoffstadt), affirming convictions for (among other things) attempted murder:

On May 3, 2015, about 11:30 a.m., Tony Rivas parked his red Volkswagen in front of the driveway of the San Pedro Market, blocking the exit from the market's parking lot. Rivas and his passenger, Carlos Manzur, went into the market to make a purchase. When Rivas and Manzur returned to their car, two women in a white Buick whose car was blocked from exiting the parking lot began yelling at Rivas. The women insulted Rivas, calling him a "fucking Mexican"; Rivas responded, "Fucking nigger," and drove away. The white Buick followed Rivas's car at a close distance as Rivas drove north on San Pedro Street. When Rivas made a U-turn at 118th Street, the Buick did the same and continued behind Rivas as he proceeded south on San Pedro.

As they drove, Rivas and Manzur saw one of the women in the Buick speaking on a phone. After a few turns, Rivas noticed a white truck behind his car in front of the Buick. The truck followed the Volkswagen to 124th Street, where Rivas stopped near the middle of the road facing Avalon Boulevard. The truck stopped on the passenger side about 8 to 13 feet behind Rivas's car. Rivas testified that the truck was a full size, double cab Chevy pickup truck, which was taller than Rivas's car.

When the vehicles came to a stop on 124th Street, the driver of the truck yelled, "did you have a problem with my mom?" or words to that effect. Rivas replied, "I don't have a problem with your mother. I don't have a problem with you." The driver then brandished a chrome nine-millimeter handgun and pointed it at the Volkswagen. Rivas pleaded with the driver not to shoot, but as Rivas pulled his car slightly forward, the driver fired the gun through the rear passenger window of the Volkswagen. The bullet broke the window, passed through the Volkswagen's driver's seat, and struck Rivas in the back, causing him to bleed profusely and lose feeling in his legs and feet. The gun appeared to jam as the driver tried to fire a few more times.

The truck then pulled forward, made a U-turn at Avalon Boulevard and drove back toward Rivas's car. Rivas told Manzur he had been hit and to get out of the car. Manzur exited the vehicle and ran as several shots were fired in his direction. As Rivas sat in his car unable to move his legs, the driver of the truck fired twice more at the Volkswagen, striking the driver's side door….

Appellant contends the trial court erred in omitting instruction on attempted voluntary manslaughter …. According to appellant, the trial court had a sua sponte duty to instruct the jury on attempted voluntary manslaughter based on heat of passion ….

"… Heat of passion is one of the mental states that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." … "A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] [¶] '"To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.'"'" Legally sufficient provocation is that which "'causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation.' [Citation.] Further, the 'proper standard focuses upon whether the person of average disposition would be induced to react from passion and not from judgment.'"

"For purposes of the heat of passion doctrine, 'provocation is sufficient not because it affects the quality of one's thought processes, but because it eclipses reflection. A person in this state simply reacts from emotion due to the provocation, without deliberation or judgment.' [Citation.] The standard requires more than evidence that a defendant's passions were aroused. The facts and circumstances must be '"sufficient to arouse the passions of the ordinarily reasonable man."'"

As for the subjective element of voluntary manslaughter based on provocation, the high court has explained that the defendant "must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation." The court has emphasized that "[i]t is not sufficient that a person 'is provoked and [then] later kills.'" Rather, where "'"sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter."'" …

Appellant's claim fails because there was insufficient evidence in this case to support either the objective or the subjective element of attempted voluntary manslaughter based on heat of passion.

Appellant argues that Rivas's use of the words "fucking nigger" during the verbal altercation with the two women in the Buick "might have easily provoked an ordinary reasonable [B]lack man in this neighborhood to act rashly and without deliberation, and from passion rather than judgment." However, the objective standard is not the reaction of a reasonable Black man in appellant's neighborhood. As our Supreme Court has long held in determining whether a provocation meets the objective standard for voluntary manslaughter, "no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused."

In this regard, appellant's reliance on People v. Millbrook (Cal. App. 2014) is misplaced. There, the victim had been aggressive throughout the night of the party and had made threatening statements and engaged in shouting matches with other guests before arguing with the defendant. Immediately before the shooting, the victim escalated the fight with the defendant, and with his fists clenched, lunged at the defendant, who then shot him. The appellate court held this evidence sufficient to permit a jury to conclude that a reasonable person in the defendant's position could have acted in the heat of passion, thus warranting instruction on voluntary manslaughter.

Here, by contrast, Rivas insulted two women outside of appellant's presence, but did not threaten or engage in any physical violence. {There is no evidence to support appellant's statement that either of these women was appellant's "loved one," much less the speculation that appellant might have witnessed the exchange.} In such situations, our Supreme Court has repeatedly rejected arguments that insults "would induce sufficient provocation in an ordinary person to merit an instruction on voluntary manslaughter." (People v. Gutierrez (Cal. 2009)  ["a voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words"]; People v. Avila (Cal. 2009) [gang challenge insufficient provocation]; People v. Manriquez (Cal. 2005) [name calling and taunting defendant to use weapon insufficient provocation].) In short, a provocation, "'such as words of reproach, however grievous they may be, … is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.'"

Not surprisingly, appellant does not even argue that the subjective component of heat of passion was satisfied here. Not only was evidence completely lacking that appellant shot at Rivas and Manzur "'while under "the actual influence of a strong passion" induced by [objectively sufficient] provocation,'"but appellant's state of mind was never in issue or argued by the defense. Indeed, appellant presented evidence completely at odds with a heat of passion defense: he averred that he had never seen the women before, he refuted that either was a relative of his, he denied receiving a phone call from any woman telling him she had just been called a "nigger," and he categorically denied any knowledge of the altercation in the parking lot or any name-calling between Rivas and the women. In short, appellant vehemently denied any involvement with the shooting, suggesting instead that his friend Davion had taken appellant's truck and shot Rivas.

In light of this defense, the only issue at trial on the attempted murder charges was appellant's identity as the shooter. "'A trial court need not, however, instruct on lesser included offenses when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime (for example, when the only issue at trial is the defendant's identity as the perpetrator). Because in such a case "there is no evidence that the offense was less than that charged" [citation], the jury need not be instructed on any lesser included offense.'" As another court explained, "When defendant denied he shot the [victim], none of the alleged evidence of heat of passion … was of the type 'that a reasonable jury could find persuasive.' [Citation.] Simply stated, the duty to instruct on inconsistent defenses does not extend to cases such as this where the sworn testimony of the accused completely obviates any basis for finding a lesser included offense."