KLINE, P. J., Concurring and Dissenting. I concur in the judgment because, for the reasons set forth by the majority, I agree that the error is harmless. I write separately for the sole purpose of expressing my disagreement with the majority’s conclusion that the offense of voluntary man[1115]slaughter necessarily involves “moral turpitude” within the meaning of People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111].
Castro expounds upon the principle that a witness may not be impeached with a prior felony conviction unless that conviction is rationally indicative of a propensity to lie. The determination whether a felony conviction bears adversely upon credibility would not be difficult if it could be assumed either that any felony conviction provides the necessary nexus or that it is only provided by conviction of those felonies which involve an element of dishonesty. Such assumptions are, however, forbidden by Castro; the former on due process grounds,1 the latter on the theory that felonies which involve “moral depravity” other than dishonesty, such as crimes of violence, still may provide “some basis—however, tenuous—for inferring that a person who has committed [such a crime] is more likely to be dishonest than a witness about whom no such thing is known.” (Castro, supra, at p. 315, fn. omitted.)
The precise question we confront in this case is whether, though the offense does not involve an element of dishonesty, prior conviction of voluntary manslaughter nonetheless demonstrates such “moral depravity” or “a general readiness to do evil” that it rationally relates to a witness’s “readiness to lie.” As stated in Castro, “felony convictions which do not involve ‘readiness to do evil’—moral turpitude, if you will—bears [yzc] no rational relation to the witness’ readiness to lie.” (Castro, supra, p. 314.)
The inquiry into evil or moral turpitude mandated by Castro is a departure for the criminal law because, as Holmes has stated, “the aim of the law is not to punish sins, but is to prevent certain external results.”2 (Common[1116]wealth v. Kennedy (1897) 170 Mass. 18, 20 [48 N.E. 770].) The difficulty of the inquiry is exacerbated for us because under Castro we may not look behind the fact of the prior conviction. Adopting the Finley-Crowson line of cases (In re Finley (1968) 68 Cal.2d 389, 392-393 [66 Cal.Rptr. 733, 438 P.2d 381]; People v. Crowson (1983) 33 Cal.3d 623, 633-635 [190 Cal.Rptr. 165, 660 P.2d 389]), Castro declares that a prior conviction is relevant to credibility and admissible for impeachment only if “the least adjudicated elements of the conviction necessarily involve moral turpitude. ” (Castro, supra, 38 Cal.3d at p. 317, italics added.) In other words, we must make the necessary determination as an abstract proposition and, most significantly, must find the prior conviction inadmissible for impeachment if, as a matter of law, it could properly have been sustained upon any facts not rationally indicative of moral turpitude.
Consistent with this principle, I cannot conclude that, as a matter of law, voluntary manslaughter necessarily involves moral turpitude or has any tendency in reason to show dishonesty.
It must be understood, preliminarily, that manslaughter is the mitigated form of murder, which is the basic homicide offense. The general common law rule, as formulated by Blackstone, is that the killing of another human being “amounts to murder unless where justified by the command or permission of the law; excused on the ground of accident or self-preservation; or alleviated into manslaughter, . . . .” (4 Blackstone, Commentaries 201, original italics.) Though murder and manslaughter both involve the element of intent to kill and result in the same harm, the offenses are very distinct: manslaughter is not committed, as is murder, with malice aforethought. (Pen. Code, §§ 187, 192.)3 It is thus the absence of malice that alleviates murder into manslaughter.
The malice which distinguishes murder from manslaughter is an elusive concept which does not lend itself to inclusive or comprehensive definition. (People v. Gorshen (1959) 51 Cal.2d 716, 730, fn. 11 [336 P.2d 492], disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324 [149 Cal.Rptr. 265, 583 P.2d 1308].) The Penal Code, which provides that such malice, “may be express or implied,” goes on to state simply that “ [i]t 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 [1117]provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Pen. Code, § 188.)4
As it relates to homicide, the concept of malice can most safely be defined as a state of mind that exists only in the absence of circumstances of justification, excuse or mitigation.5 Safe as this negative definition may be, however, it cannot be forgotten that malice aforethought remains fundamentally a matter of mind, it “is a psychical fact just as homicide is a physical fact. It is the particular kind of mens rea or mind at fault which is required for the more serious of the two types of felonious homicide.” (Perkins, A Re-examination of Malice Aforethought, supra, 43 Yale L.J. at p. 567; see also Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 73-75.)
Many who have authoritatively endeavored to define this state of mind have done so by utilizing the very words employed in Castro to define “moral turpitude.” Thus, for example, it was said by Blackstone that malice aforethought relates to “evil design” or to “a wicked, depraved and malignant heart.”6 Similarly, Salmond stated that “the malice of English law[] include[es] all forms of evil purpose, design, intent or motive.” (Salmond, Jurisprudence, supra, p. 399.) Such definitions suggest that the absence of malice is not only compatible with but may be indicative of the absence of evil purpose, the absence of a depraved heart, and the absence, therefore, of such moral turpitude as is defined in terms of evil and depravity.
The correlation between malice and moral turpitude is not, however, based merely on semantics. As will be seen, the mitigating factors sufficient in law to negate malice and thereby reduce murder to voluntary manslaughter [1118]are close to those which excuse and even justify homicide. (See Pen. Code, §§ 195, 197.)7 Although the proposition may sound strange, a conviction of voluntary manslaughter in this state represents, among other things, a conclusion by the trier of fact that the defendant sustained his burden of showing8 that though his killing of another human being was intentional it was also either (1) objectively reasonable, or (2) induced by an honest belief that he was in mortal danger, or (3) influenced by a mental defect that rendered him incapable of comprehending the duty the law imposes and unable to harbor malice. These are not the sort of considerations ordinarily associated with an evil design or a depraved heart.
The two mitigating factors that now may be used to negate malice and reduce a homicide from murder to voluntary manslaughter are (1) sufficient provocation and (2) an honest but unreasonable belief in the need to defend against imminent peril to life or great bodily injury. Until 1981, diminished mental capacity was a third means by which malice could be negated and a homicide reduced to manslaughter.9
Of these three avenues, the first, which is the only one provided by statute (Pen. Code, § 192, subd. (a)), is by far the most frequently employed. {People v. Flannel (1979) 25 Cal.3d 668, 680 [160 Cal.Rptr. 84, 603 P.2d 1].) A homicide is provoked, and therefore legally presumed to have been committed without malice aforethought, if it occurred “upon a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a)). In determining the sufficiency of the provocation the trier of fact is not permitted to consider any abnormal personal characteristics of the defendant, for his responsive conduct is measured by the objective standard of an exemplary person. As is well established, “the provocation must at least be such as would stir the [1119]resentment of a reasonable man. [11] It cannot be urged that the homicide is manslaughter because it was committed in an unreasonable fit of passion. In an abstract sense anger is never reasonable; but the law, in consideration of human weakness, makes the offense manslaughter when it is committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person; one of ordinary self control.” (People v. Hurtado (1883) 63 Cal. 288, 292, italics added.) As the proposition has alternatively been stated, “[t]he fundamental of the inquiry ... is whether the defendant’s reason was, at the time of his act, disturbed or obscured by some passion—not necessarily fear, and never the passion for revenge—to such an extent as would render an ordinary man of average disposition likely to act rashly or without due deliberation and reflection; and from this passion rather than from judgment.” (People v. Brubaker (1959) 53 Cal.2d 37, 44 [346 P.2d 8], cert. den. 365 U.S. 824 [5 L.Ed.2d 702, 81 S.Ct. 703], original italics; accord, People v. Borchers (1958) 50 Cal.2d 321, 329 [325 P.2d 97]; People v. Bridgehouse (1956) 47 Cal.2d 406, 413 [325 P.2d 97].)
I do not think criminal conduct legally determined to have been comparable to that of an ordinarily reasonable person of average disposition in the same circumstances can always be deemed “morally depraved;” nor do I believe such conduct bears upon veracity. A man who, for example, kills a flagrantly unfaithful wife who “taunt[s] him into jealous rages in an unconscious desire to provoke him into killing her and thus consummating her desire for suicide” may properly be found guilty of voluntary manslaughter (People v. Berry (1976) 18 Cal.3d 509, 514 [134 Cal.Rptr. 415, 556 P.2d 777]) and justly punished, but his criminal act does not provide evidence that may rationally be used to show he is depraved or dishonest. Indeed, a person may be convicted of voluntary manslaughter not in spite of but in some measure because there is “ample, uncontradicted, evidence that [he] was a man of excellent character . . . .” (People v. Bridgehouse, supra, 47 Cal.2d 406, 414.) Thus, it simply cannot be said that where a homicide was reduced to voluntary manslaughter upon the ground of sudden quarrel or heat of passion the least adjudicated elements of the offense necessarily involve “moral turpitude” in the sense of depravity or as relating to lack of credibility. As Holmes has pointed out, the reason provocation may reduce an offense which would otherwise be murder to manslaughter is because, “ [a]ccording to current morality, a man is not so much to blame for an act done under the disturbance of great excitment, caused by a wrong done to himself, as when he is calm.” (Holmes, The Common Law, supra, p. 51, italics added.)
Where the mitigating factor negating malice was an honest but unreasonable belief that killing another was necessary to defend against imminent [1120]peril to life or great bodily injury,—that is, imperfect self-defense—a conviction of voluntary manslaughter may be thought to bear upon veracity, but it certainly does not show the lack thereof. As the Supreme Court stated in People v. Flannel, supra, 25 Cal.3d 668, an honest belief, even if unreasonably held, cannot be consistent with malice. “No matter how the mistaken assessment is made, an individual cannot genuinely perceive the need to repel imminent peril of bodily injury and simultaneously be aware that society expects conformity to a different standard. Where the awareness of society’s disapproval begins, an honest belief ends.” (Id., at p. 679.)
The theory of imperfect self-defense articulated in Flannel developed out of the general common law rule that, subject to exceptions in certain cases, mistake of fact excuses conduct that would otherwise be criminal if the mistaken belief is honestly held, based upon reasonable grounds, and of such a nature that the conduct would have been lawful had the facts been as they were reasonably supposed to be. (See, e.g., People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]; People v. Vogel (1956) 46 Cal.2d 798 [299 P.2d 850].) Although, with respect to that rule, there is some dispute among the commentators about the significance that should attach to the requirement that the mistaken belief constitute a reasonable misapprehension,10 there is no disagreement about the threshold requirement, which is the central feature of the theory of imperfect self-defense, that the mistaken belief be honestly entertained. “[T]he possibility of excuse based upon mistake of fact never has any application‘where there is no honest belief. . .but. . . a dishonest pretense is resorted to in the endeavor to escape punishment.’ The mistaken belief must always be ‘honest and real’ rather than ‘feigned’; sincere rather than a mere ‘pretext. ’ ” (Perkins & Boyce, Criminal Law, supra, at p. 1045, fns. omitted.) A conviction of manslaughter based upon imperfect self-defense may therefore indicate not just the absence of pretense but credibility, because the evidence of honest belief—which is the defendant’s burden to produce and which usually consists of his own testimony—was believed by the trier of fact.
More importantly, the question whether the defendant’s honest belief was reasonable or unreasonable is determined by an objective standard; that is, the defendant is presumed, at his peril, to possess the qualities of a reasonable person. “Unless he can bring himself within some broadly defined exception to general rules, the law deliberately leaves his idiosyncrasies out of account, and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation.” (Commonwealth v. Pierce (1884) 138 Mass. 165, 176, opn. of [1121]Holmes, J.) Application of this principle means that an individual can be convicted of voluntary manslaughter on a theory of imperfect self-defense though he “may be morally without stain, because he has less than ordinary intelligence or prudence.” (Holmes, The Common Law, supra, at p. 43.) It therefore cannot be said that such a conviction necessarily involves moral turpitude.
It does not require lengthy analysis to establish that diminished capacity caused by mental illness, mental defect, or intoxication—which until 1981 was the remaining way in which malice could be negated and voluntary manslaughter established11—also does not necessarily show a general readiness to do evil nor have any tendency in reason to reflect adversely on credibility. As a result of the decision in People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d911], a defendant could not be found guilty of murder of the first or second degree, but could be found guilty of voluntary manslaughter, if his mental capacity was so diminished that there existed a reasonable doubt whether he was able to form the mental states constituting either express or implied malice. Thus, a defendant with diminished mental capacity could not have been convicted of voluntary manslaughter unless the trier of fact believed the defendant was unable to form an intention unlawfully to kill another or that the killing was not done for a base antisocial purpose or entertained reasonable doubt with respect to these questions. A person who kills another without the mental capacity necessary to comprehend the duty not to do so or who kills without a base anti-social purpose may be presumed in law to have intended to kill, but that intention, without more, does not necessarily demonstrate either depravity or a propensity to lie.
It is significant, in this connection, that the jury instruction pertaining to the question whether a defendant claiming diminished capacity “was aware of the duty imposed on him not to commit acts which involve the risk of grave injury or death.” (CALJIC No. 8.77 (1979 rev.)) did not limit inquiry to the awareness of legal obligation but permitted the jury to include moral responsibility within the broad meaning of the word “duty.” (See People v. Schmidt (1915) 216 N.Y. 324, 330 [110 N.E. 945, 946-950],)12 Thus a [1122]homicide could have been reduced to voluntary manslaughter because the jury, specifically addressing the moral question, found that the convicted person lacked the mental capacity to appreciate the moral duty he violated and therefore was not morally culpable.
My colleagues disagree with the foregoing analysis and conclude that “[n]o matter what the avenue for reducing murder to the intentional killing called voluntary manslaughter, there is moral depravity in the act.” (Maj. opn. at p. 1107.)
The majority commences its analysis by asserting that “[a] jury presented with the question of adequate provocation is asked to decide whether a reasonable person in the circumstances would have acted out of passion rather than judgment. ... It is not asked to determine that a reasonable person’s responsive act would have been an intentional killing. ” (Maj. opn., p. 1107, original italics.) This statement makes a distinction where none exists (because the passionate act in question is an intentional killing) and thereby produces a contradiction. As my colleagues are unwilling to acknowledge, the jury is asked to determine whether a reasonable person’s responsive act would have been an intentional killing. When it returns a verdict of guilty of voluntary manslaughter, a jury answers this question in the affirmative; in effect the jury says that an ordinarily reasonable man faced with the same situation as that confronted by the defendant might have acted similarly.
The majority’s misperception of the law is revealed in its statement that, where the act was provoked, “[t]he law finds mitigation in the motivation for the act but by no means forgives or condones as reasonable the act chosen.” (Maj. opn., p. 1107.) This statement is simply wrong. The law finds mitigation because the act is found objectively reasonable. What the majority really means to say, I think, is that an ordinarily reasonable man would never intentionally kill another human being. This is, I concede, a tenable view. As has been stated, the law of provocation “is a compromise, neither conceding the propriety of the act nor exacting the full penalty for it. This being so, how can it be admitted that paragon of virtue, the reasonable man, gives way to provocation?” (Williams, Provocation and the Reasonable Man (1954) Crim. L.Rev. 740, 742.) However, as is always conceded by those who argue that the reasonable man standard should have no place in laws defining homicide (E.g., Hall, Negligent Behavior Should Be Excluded From Penal Liability (1963) 63 Colum. L.Rev. 632; Ceilings, Negligent Murder—Some Stateside Footnotes to Director of Public Prosecutions v. Smith (1961) 49 Cal.L.Rev. 254, 285-291; Note, Manslaughter and the [1123]Adequacy of Provocation: The Reasonableness of the Reasonable Man (1958) 106 U.Pa. L.Rev. 1021), the fact remains that it does. The introduction into the law of homicide of the reasonable man standard, which had previously been associated with tort liability in the field of negligence, occurred more than a century ago.13 This development may be thought unwise, but it cannot be denied. By insisting that which the law deems reasonable, and which therefore alleviates murder into manslaughter, is nevertheless unreasonable, the majority ignores the law.14
The majority also ignores the law pertinent to imperfect self-defense; though in this respect it adopts a point of view which seems to me entirely inconsistent with its approach to provocation. The majority believes a provoked killing is indicative of depravity because the objective nature of the mitigating factor ignores the subjective intent to kill. On the other hand, in concluding that imperfect self-defense is indicative of depravity the majority dismisses the subjective nature of the mitigating factor (honest belief in the need to defend against a threat to life) as beside the point.
According to the majority, “[a] person who acts unreasonably in deciding to intentionally commit the ultimate act of violence against another human being acts with serious moral depravity. Despite his subjective motivation, he has nonetheless acted unreasonably.” (Maj. opn.,p. 1107, italics added.) These statements focus upon the unreasonableness of the defendant’s act [1124]and the ultimate nature of the harm he caused, which are legally irrelevant to whether imperfect self-defense can be made out (because it is always assumed the act was based on an unreasonable belief and that death resulted), and casts aside what is truly the central consideration: the defendant’s “subjective motivation.” The most powerful criticism of the theory of imperfect self-defense is not that it gives too much weight to a defendant’s subjective motivation, which seems to be the majority’s concern, but that it does not give enough. Thus, in what remains one of the seminal analyses of the issue of mistake of fact, it is argued that, no matter how unreasonable it may be, an honest belief disproves mens rea and should not merely mitigate but exonerate the commission of a homicide. “If the defendant, being mistaken as to material facts, is to be punished because his mistake is one which an average man would not make, punishment will sometimes be inflicted when the criminal mind does not exist. Such a result is contrary to fundamental principles, and is plainly unjust, for a man should not be held criminal because of lack of intelligence. If the mistake, whether reasonable or unreasonable, as judged by an external standard, does negative the criminal mind, there should be no conviction.” (Keedy, Ignorance and Mistake in the Criminal Law (1908) 22 Harv. L.Rev. 75, 84-85; see also, Fletcher, Rethinking Criminal Law (1978) § 9.2.3, pp. 707-713.)15 It is not my purpose to urge that honest belief should excuse and not just mitigate homicide. This argument is relevant only because it calls attention to the contradiction between criminal intention and honest belief and thereby underscores the significance of the state of mind the majority untenably disregards.
The majority is not persuaded that diminished capacity renders a homicide free of moral depravity because, it points out, “[t]he degree of mental capacity required under this theory . . . still required the capacity to intend to kill.” (Maj. opn. at p. 1108.) The test of diminished capacity set forth in People v. Conley, supra, 64 Cal.2d 310, does not focus upon the intent to kill, however, which is assumed, but on whether “because of mental defect, disease, or intoxication . . . the defendant is unable to comprehend his duty to govern his actions in accord with the duty imposed by law . . . .” (Id., at p. 322.) As the court explained in Conley, included within the statutory definitions of express and implied malice is “[a]n awareness of the obligation to act within the general body of laws regulating society . . . .” (Ibid.) My colleagues do not explain how an intentional killing can be considered morally depraved where, because of a mental defect, the one [1125]who committed it did not comprehend the duty not to violate the general body of laws governing society and was unable to “harbor malice.” Despite the inexactness of the words used in the law to describe diminished capacity, I do not think a person determined to have been mentally incapable of harboring malice can easily be assumed capable of intending evil, much less deemed to have necessarily intended evil.
My colleagues’ conclusion that voluntary manslaughter necessarily involves moral turpitude rests at bottom on the fact that, regardless of all other considerations, the offense remains an intentional killing. As they acknowledge, the substance of their reasoning is that expressed as follows in People v. Parrish (1985) 170 Cal.App.3d 336 [217 Cal.Rptr. 700]: “[T]he intentional taking of a human life, whatever the excuse for doing so, involves the intent to do harm to another. The intent to do evil is always involved in the taking of a human life. Accordingly, . . . voluntary manslaughter necessarily involves moral turpitude within the meaning of that term as used in Castro.” (Id., at p. 351; maj. opn., at p. 1109.) This putative syllogism is amiss because it adopts a simplistic conception of the intent to inflict harm or kill which begs the question most central to the law of homicide and most relevant to any moral judgment: Why did the actor form this intent? What was his purpose?16 Thus, the statement that “the intent to do evil is always involved in the taking of a human life” goes much too far. If this were true then not only conviction of involuntary manslaughter, a negligent homicide, but justifiable homicide, such as that committed in self-defense, would also be evil; as would the act of the executioner at San Quentin, who kills in his official capacity pursuant to judicial decree. The intentional taking of a human life, without more, is not necessarily indicative of a readiness to do evil; for there are intentional homicides, described in sections [112619]6 and 197 of our Penal Code, which are not only legally justifiable but morally defensible.
The proposition that “the intent to do evil is always involved in the taking of a human life” may be reduced to an absurdity because it ignores the central question of purpose, design or motive.
“A wrongful act is seldom intended and desired for its own sake. The wrongdoer has in view some ulterior object which he desires to obtain by means of it. The evil which he does to another, he does and desires only for the sake of some resulting good which he will obtain for himself. He intends the attainment of this ulterior object no less than he intends the wrongful act itself. His intent, therefore, is twofold, and is divisible into two distinct portions, which we may distinguish as his immediate and his ulterior intent. The former is that which relates to the wrongful act itself; the latter is that which passes beyond the wrongful act, and relates to the object or series of objects for the sake of which the act is done. . . . [Therefore] [e]very wrongful act may raise two distinct questions with respect to the intent of the doer. The first of these is: How did he do the act—intentionally or accidentally? The second is: If he did it intentionally, why did he do it? The first is an inquiry into his immediate intent; the second is concerned with his ulterior intent, or motive.” (Salmond, Jurisprudence, supra, 397-398, original italics; see also, Holmes, The Common Law, supra, p. 45 [“intent. . . will be found to resolve itself into two things; foresight that certain consequences will follow from an act, and the wish for those consequences working as a motive which induces the act”]; and Cook, Act, Intention, and Motive in the Criminal Law (1917) 26 Yale L.J. 645.) The court in Parrish and my colleagues in this case conclude that voluntary manslaughter necessarily involves a readiness to do evil solely on the basis of the first inquiry. But it is the second inquiry, not the first, that bears upon whether a homicidal act is criminal and, if so, whether it is murder or manslaughter; and it is this latter inquiry, because it embodies the search for malice,17 that sheds most light on the evil purpose, if any, involved in the act. The court in Parrish absolves itself of the responsibility to make this critical inquiry, as do my colleagues, by inferring the intent to do evil from the intent to kill. This is legally and logically impermissible. Malice aforethought cannot be inferred from the specific intent to kill because the specific intent to kill, which “is not necessarily the mental state known as malice aforethought” (People v. Conley, supra, 64 Cal.2d 310, 320), is compatible with both the presence and the absence of malice. Moreover, [1127]malice may be present even in the absence of a specific intent to kill.18 By irrationally inferring the intent to do evil, or malice, from the intent to kill, the court in Parrish and the majority herein use that which logically compels further inquiry as the reason not to undertake it.
This is not the law, however, and does not describe the manner in which a person may be convicted of voluntary manslaughter. As we know, such a conviction involves not just the threshold determinations that the defendant’s homicidal act was intentional and neither justified nor excused, but the additional determination that a mitigating factor negated malice; i.e., that the act was either an objectively reasonable response to sufficient provocation or was committed without “a deliberate intention unlawfully to take away the life of a fellow creature,” and without “an abandoned and malignant heart.”19 (Pen. Code, § 188.) To say that an act that lacks these indicia of malice is nonetheless performed, indeed, is necessarily performed, with an intent to do evil is, in the final analysis, to trivialize evil.
My colleagues take me to task for not recognizing that the mitigating factor that removes malice “fails to remove the unlawfulness of intentionally killing another human being.” (Maj. opn., p. 1111.) The majority thinks this unlawful aspect of voluntary manslaughter undermines my entire argument. Again, they are mistaken.
Voluntary manslaughter is statutorily described as an “unlawful killing” presumably because it is neither excused nor justified by any of the factors [1128]set forth in Penal Code sections 195, 196 and 197.20 When it is said that voluntary manslaughter represents an intentional killing it is not meant that the actor intended to act unlawfully, for, as we have seen, he may have believed his act was legally justifiable or lacked the mental capacity to comprehend the duty imposed on him by law. The proof that the unlawfulness of voluntary manslaughter is not related to the intentional, i.e., the deliberate, nature of the act, as the majority supposes, is provided by the fact that the definition of manslaughter as an “unlawful killing” set forth in Penal Code section 192 refers not just to voluntary manslaughter but as well to involuntary manslaughter and vehicular manslaughter (Pen. Code, § 192), neither of which are intentional homicides. The fact that the mitigation which removes malice fails to eliminate the unlawfulness of the homicide seems to me both obvious and, for present purposes, meaningless, because the unlawful quality of the act does not shed much light on the actor’s mental state.
Since it has been held (with the Attorney General conceding the point) that involuntary manslaughter does not necessarily involve moral turpitude within the meaning of Castro (People v. Solis (1985) 172 Cal.App.3d 877, 883 [218 Cal.Rptr. 469]), we know that the act of killing does not necessarily demonstrate a readiness to do evil simply because it is unlawful. We also know that a killing does not necessarily involve moral turpitude because it was intentional, because intentional killings may be justifiable. What we do not know, and what the majority does not and cannot satisfactorally explain, is why a killing should necessarily be considered “morally reprehensible” simply because it possesses in combination qualities which, when considered individually, do not necessarily indicate moral depravity of any kind, and are not intensified or otherwise transformed by virtue of being joined.
To say that a killing was both intentional and unlawful does not reveal the motive n purpose or design of the one who killed and therefore does not indicate the moral quality of the act. Assuming, as we must, that analysis is limited to the least adjudicated elements of the offense, the moral quality of the act can be evaluated only if it is known whether the intentional homicide was committed with or without malice; that is, whether it was murder or voluntary manslaughter. The conclusion that a killing necessarily involves moral turpitude simply because it was intentional and unlawful, and despite the fact it was without malice, leads to the conclusion that murder and voluntary manslaughter are morally indistinguishable. Such a conclusion cannot be reached without sheer indifference to some of the most venerable principles in the criminal law.
[1129]A man whose provoked killing of another is found to have been objectively reasonable in the circumstances, or who kills because of an honest though mistaken belief that otherwise he will die, or because, due to a mental defect, he cannot comprehend the duty not to kill, is guilty of a very serious felony oifense and punished, but it cannot be said that he necessarily intended to do evil. Because the absence of malice may be seen as and is at least akin to the absence of “evil purpose,” (see discussion, ante, at pp. 1116-1117) it seems to me it would be easier to argue that the least adjudicated elements of voluntary manslaughter necessarily exclude moral turpitude than to claim the opposite. But this is not my argument.21 My position, as I have said, is merely that a homicide reduced to voluntary manslaughter will not always represent a morally depraved act that has any tendency in reason to reflect adversely on the credibility of the one who committed it. Since the least adjudicated elements of this oifense do not necessarily involve moral turpitude within the meaning of People v. Castro, it cannot be used for impeachment purposes without violating the rule set forth in that case.
The conclusion that voluntary manslaughter necessarily involves moral turpitude does not represent a reasoned legal judgment about morals but a moral judgment. It is as morally unconvincing as it is legally unpersuasive.
The lead opinion in Castro suggests that some of the problems in determining whether a prior felony conviction involves moral turpitude and may be used to impeach may be ameliorated by reference to bodies of law regarding attorney discipline and the deportation of aliens, which also concern the characterization of felonies as involving or not involving moral turpitude. (People v. Castro, supra, 38 Cal.3d 301, 316, fn. 11.) After examining these two bodies of law and finding that they conflict on the question whether voluntary manslaughter involves moral turpitude, my colleagues not unexpectedly find “meaningful guidance” in the federal immigration cases, which are consistent with their view, and dismiss the attorney discipline cases, which are inconsistent.22
[1130]I do not think we should consult either body of law. First, as I have endeavored to demonstrate, there is ample basis within the criminal law upon which to determine whether the least adjudicated elements of voluntary manslaughter necessarily involve “a readiness to do evil.” Secondly, the case law applying the moral turpitude standard in the noncriminal contexts of attorney discipline and deportation proceedings is not only contradictory but essentially incoherent. With respect to immigration cases, Justice Jackson has pointed out that “[wjhat is striking about the opinions in these ‘moral turpitude’ cases is the wearisome repetition of cliches attempting to define ‘moral turpitude,’ usually a quotation from Bouvier. But the guiding line seems to have no relation to the result reached. The chief impression from the cases is the caprice of the judgments. How many aliens have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.” (Jordan v. De George (1951) 341 U.S. 223, 239-240 [95 L.Ed. 886, 896-897, 71 S.Ct. 703], dis. opn. of Jackson, J., fn. omitted, reh. den. 341 U.S. 956 [95 L.Ed. 1377, 71 S.Ct. 1011]; see also, Comment, Constitutional Law: “Moral Turpitude”—A Treacherous Legislative Standard for Deportation (1972) 40 U.R.K.C. L.Rev. 338.) The most recent scholarly study of the use of the “moral turpitude” or “moral character” standard with respect to professional licensing has similarly concluded that this standard is highly subjective and idiosyncratic, has not been applied consistently, and has “functioned primarily as a cultural showpiece.” (Rhode, Moral Character as a Professional Credential (1985) 94 Yale L.J. 491, 493-494.)
The incorporation into the criminal law of the moral turpitude standard developed in these other legal areas will corrupt, not clarify, the criminal law of this State and ought to be resisted.
The lead opinion in Castro acknowledges that in State v. Ruzicka (1977) 89 Wn.2d 217 [570 P.2d 1208], the Supreme Court of Washington held that the Legislature could reasonably determine that there was a nexus between a person having committed crimes and that person’s propensity to lie. As stated in Castro, “To the extent that this statement encompasses crimes not involving moral turpitude of any kind, we must disagree on due process grounds.” (People v. Castro, supra, 38 Cal.3d 301, 314, fn. 8.)
Holmes elsewhere tried to show “that the general principles of criminal and civil liability are the same, [and that] it will follow from that alone that theory and fact agree in frequently punishing those who have been guilty of no moral wrong, and who could not be condemned by any standard that did not avowedly disregard the personal peculiarities of the individuals concerned.” (Holmes, The Common Law (Howe ed. 1963) p. 38.)
Holmes’ view has its roots in the utilitarian theories of John Stuart Mill and Jeremy Bentham. According to Mill, for example, “the only purpose for which power can be rightfully exercised over any member of a civilized society against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right.” (Mill, On Liberty (Rapaport ed. 1978.) See also, Bentham, Principles of Morals and Legislation (Harrison ed. 1948).) The idea that criminal responsibility is not necessarily coincident with moral blameworthiness has more lately been advanced by H. L. A. Hart. (See, e.g., Hart, The Concept of Law (1961) chaps. VIII and IX; Hart, Morality of the Criminal Law (1964) and Hart, Law, Liberty and Morality (1963)).
Development of the distinction between murder and manslaughter is believed to have commenced in the 14th century. See Kaye, The Early History of Murder and Manslaughter (1967) 83 Int’l & Comp. L.Q. Rev. 365 (pt. I), 569 (pt. II).
On the meanings of “express” and “implied” malice, see Perkins, A Re-Examination of Malice Aforethought (1934) 43 Yale L.J. 537, 546-552.
The words “malice” and “maliciously” are also defined in Penal Code section 7 as importing “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” However, insofar as homicide is concerned, the word “malice” means “‘something more than the word imports as defined in section 7.’” (People v. Gorshen, supra, 51 Cal.2d 716, 730, quoting People v. Waysman (1905) 1 Cal.App. 246, 248 [81 P. 1087].)
Thus, the Alabama Supreme Court has declared that “Malice, as an ingredient of murder, may be defined, in legal phrase, as the killing of a human being, without legal justification, excuse or extenuation.” (Cribbs v. State (1889) 86 Ala. 613, 616 [6 So. 109, 110].)
“Malice aforethought... the grand criterion which now distinguishes murder from other killing ... is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved and malignant heart; un disposition a faire un male chose (a disposition to commit a bad action) . . .” (4 Blackstone, supra, p. 199.) Blackstone’s definition is consistent with the meaning of the Latin word malitia, which is thought to connote “badness, physical or moral—wickedness in disposition or in conduct—not exclusively ill-will or malevolence . . . .” (Salmond, Jurisprudence (7th ed. 1924) p. 399.)
The distinction between excuse and justification has been explained as follows: “In the case of ‘justification’ what is done is regarded as something which the law does not condemn, or even welcomes. . . . But where the killing (e.g. accidental) is excused criminal responsibility is excluded on a different footing. What has been done is something which is deplored, but the psychological state of the agent when he did it exemplified one or more of a variety of conditions which are held to rule out the public condemnation and punishment of individuals.” (Hart, Punishment and Responsibility (1968) pp. 13-14, fn. omitted.)
Unless the evidence introduced by the prosecution itself establishes some basis of justification or excuse, every homicide is presumed to have been committed with malice aforethought. Therefore, the burden is upon the defendant to come forward with facts showing justification, excuse or mitigation. (See, Perkins & Boyce, Criminal Law, supra, pp. 75-81; 4 Blackstone, supra, p. 201 [“. . . all of these circumstances of justification, excuse or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury .... For all homicide is presumed to be malicious until the contrary appeareth upon evidence.”].)
Penal Code section 28, subdivision (b), which was adopted by vote of the people in 1981, provides, inter alia, that “As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing.”
See discussion, post, at pages 1123-1124.
Diminished capacity must be considered because, looking only at the least adjudicated elements of the offense, the possibility cannot be excluded that a conviction prior to 1981 was reduced from murder to voluntary manslaughter on this basis.
In People v. Schmidt, supra, the court was required to determine the meaning of the word “wrong” as it appeared in an instruction directing the jury to inquire whether at the time the defendant committed an act of homicide “ ‘he was laboring under such a defect of reason as either not to know the nature and quality of the act he was committing or that it was wrong.”’ (216 N.Y. at p. 330, 110 N.E. at p. 946.) After a lengthy analysis of the history of that language, which history is also germane to the language of the subject California instruction, Justice Cardozo concluded that “it is impossible ... to say that there is any [1122]decisive adjudication which limits the word ‘wrong’ in the statutory definition to legal as opposed to moral wrong. The trend of the decisions is indeed the other way.” {Id., at p. 338, 110 N.E. at p. 949.)
The use of the reasonable man standard in this context is usually said to have first occurred in the celebrated English case of Regina v. Welsh (1869) 11 Cox.Cr.Cas. 336. In order to reduce the homicide to manslaughter by reason of provocation, the jury in Welsh was instructed to determine whether the evidence pointed up facts from which the killing could be attributed “to the violence of passion naturally arising thereform, and likely to be aroused thereby in the breast of a reasonable man.” (Id., at p. 338.) This standard was quickly adopted by courts in the United States. See Perkins & Boyce, Criminal Law, supra, p. 86, n. 71. Indeed, it may be argued that the reasonable man standard was adopted seven years prior to Regina v. Welsh by the Michigan Supreme Court in Maher v. People (1862) 10 Mich. 212. The fact that the reasonable man standard still enjoys considerable support is shown by the fact that it is an element of the Model Penal Code definition of manslaughter. (See Model Pen. Code, § 210.3.)
The significance of the reasonable man standard is underscored by the repetitive manner in which it is impressed upon the jury. The standard instruction explaining sudden quarrel or heat of passion informs the jury, inter alia, as follows: “The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which he was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable man faced with the same situation. The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” (CALJIC No. 8.42 (1979 rev.), italics added.)
The forcefulness of the view that an honest mistake should not just mitigate but completely excuse an intentional act is reflected in the fact that in certain circumstances it has been accepted by the United States Supreme Court and by courts in this and other states, albeit not with respect to homicides. (See, Morissette v. United States (1952) 342 U.S. 246 [96 L.Ed. 288, 72 S.Ct. 240]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1 [160 Cal.Rptr. 692]; People v. Weiss (1938) 276 N.Y. 384 [12 N.E.2d 514, 114 A.L.R. 865].)
The significance of this mental element, and the relative insignificance of the intent to kill, has been illustrated through the situation in which a lawful death sentence is carried out: “If a sheriff is carrying out such a sentence what difference does it make what his state of mind may be? The fallacy involved in this question lies in the fact that the mental element—the mind without fault—has been satisfied by the assumption that he is ‘cariying out’ a lawful sentence of death. If a sheriff who had no knowledge of any sentence of death having been pronounced should take the life of his prisoner for some unlawful purpose of his own, it would be no answer to a murder charge that there existed, unknown to him, a mandate for him to execute that man on that very day. The extreme unlikelihood of the officer’s being unaware of the existence of the sentence does not affect the legal view of the situation. The knowledge that he is carrying out a sentence of the court makes this altogether different as a psychical fact than if he acted in ignorance of this matter. A felon may be killed lawfully under certain circumstances other thaft the execution of a sentence of death, as for example where this is the only means of preventing .him from murdering an innocent victim, or of stopping his flight from arrest after the murder is committed. And there is an interesting case in which the shooting of an actual felon, under circumstances sufficient to justify the act had the facts been known, was held not to constitute a justification in favor of one who did not know or have any reason to believe that the person was a felon.’’ (Perkins & Boyce, Criminal Law, supra, at p. 74, fn. omitted. See also, Perkins, A Rationale of Mens Rea (1939) 52 Harv. L.Rev. 905, 923.)
Referred to by one court as “the malice of the evil motive.” (Ramsey v. State (1934) 114 Fla. 766 [154 So. 855, 856].)
As Justice Tray nor once pointed out, “murder may be committed without a specific intent to take human life if the killing is committed under circumstances that show an abandoned and malignant heart.” (People v. Thomas (1953) 41 Cal.2d 470, 479 [261 P.2d 1], cone. opn. of Traynor, J; see also People v. Munn (1884) 65 Cal. 211, 215 [3 P. 650]; People v. Doyell (1874) 48 Cal. 85, 95; People v. Torres (1949) 94 Cal.App.2d 146, 150 [210 P.2d 324]; People v. Semone (1934) 140 Cal.App. 318, 323-324 [35 P.2d 379]; People v. Hubbard (1923) 64 Cal.App. 27, 38 [220 P. 315].) Malice is inferred in such circumstances from indifference to fatal consequences that were or should have been anticipated. “If the known present state of things is such that the act done will very certainly cause death, and the probability is a matter of common knowledge, one who does the act, knowing the present state of things, is guilty of murder, and the law will not inquire whether he did actually foresee the consequences or not. The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen.” (Holmes, The Common Law, supra, p. 45; see also Holmes’ opinion in Commonwealth v. Chance (1899) 174 Mass. 245, 252 [54 N.E. 551, 554] [“reduced to its lowest terms, ‘malice’ in murder, means knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act . . . .”)
Originally, the term “abandoned and malignant heart” “did no more than phrase a comparison or alternative description of a conscious disregard of life.” (People v. Phillips (1966) 64 Cal.2d 574, 588 [51 Cal.Rptr. 225, 414 P.2d 353], citing Comment, Ambiguous Abandon and Murky Malignancy: Charging the Jury on Implied Malice (1966) 114 U.Pa.L.Rev. 495, 497.
With respect to the confusion that has arisen from the use of the word “unlawfully” in criminal statutes, see Williams, Criminal Law (2d ed. 1961) pages 27-29.
I do not argue that the least adjudicated elements of voluntary manslaughter necessarily exclude moral turpitude because I do not think the concepts of malice aforethought and moral turpitude are precise enough to support so absolute a position. My colleagues are in this regard much more daring than I am.
I do not think this can easily be done; because credibility—the central issue to which the moral turpitude standard of Castro is directed—seems much more critical to the question of fitness to practice law than to the question of citizenship. In re Strick (1983) 34 Cal.3d 891 [196 Cal.Rptr. 509, 671 P.2d 1251], establishes that violent felonies which are lesser offenses than first degree murder do not constitute moral turpitude per se. (Id., at p. 902.) This is simply another way of saying that the least adjudicated elements of such offenses do not necessarily involve moral turpitude. It has also been established by our Supreme Court that the commission of a violent felony offense “in the heat of anger or as the result of [1130]physical or mental infirmities does not, without more, cast discredit upon the prestige of the legal profession or interfere with the efficient administration of the law and should not be deemed to involve moral turpitude.” (In re Rothrock (1940) 16 Cal.2d 449, 459 [106 P.2d 907, 131 A.L.R. 226].) If this be so, then how can the commission of such an offense, without more, necessarily show the depravity of one who may not be an attorney and used in a court of law to impeach his credibility?