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People v. Barton12/18/1995
instruction that is otherwise proper: the error is still error. ( People v. Graham, supra, 71 Cal. 2d at p. 319.) The cases cited in the preceding paragraph and relied on by defendant do not hold that a trial court must honor such a request; they hold only that when the trial court accedes to the defendant's wishes, the defendant may not argue on appeal that in doing so the court committed prejudicial error, thus requiring a reversal of the conviction. These holdings are consistent with the rule set forth in Sedeno, supra, 10 Cal. 3d at pages 715-716, that the trial court must instruct on a lesser included offense when the evidence would support a conviction for the offense, notwithstanding the defendant's objection to the instruction.
III
In the preceding part, we reiterated the soundness of the distinction drawn in Sedeno, supra, 10 Cal. 3d 703, between the trial court's broad duty to instruct on lesser included offenses and its narrower obligation to instruct on particular defenses. We recognize, however, that the difference between the two categories is not always clear. This is particularly true with respect to voluntary manslaughter, as discussed below.
Murder is the unlawful killing of a human being with malice aforethought. ( § 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. ( § 192.) But a defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" ( § 192, subd. (a)), or when the defendant kills in "unreasonable self-defense" -- the unreasonable but good faith belief in having to act in self-defense (see In re Christian S. (1994) 7 Cal. 4th 768, 872 P.2d 574; People v. Flannel, supra, 25 Cal. 3d 668).
Ordinarily, it is the defendant who offers evidence to show that because the killing occurred in a sudden quarrel or heat of passion, or in unreasonable self-defense, the crime committed is not murder, but only voluntary manslaughter. For this reason, voluntary manslaughter closely resembles an affirmative defense (placing on the defendant the burden of producing evidence of facts which, if believed by the jury, will result in the defendant's acquittal of the crime charged). Because of this similarity, a defendant's attempt to show that a killing was only voluntary manslaughter rather than murder is sometimes referred to as a "partial defense," a phrase that blurs the distinction between lesser included offenses and defenses.
One form of voluntary manslaughter in particular, the one that is predicated on unreasonable self-defense, is quite similar to the "defenses" referred to in Sedeno, supra, 10 Cal. 3d at page 716. This similarity arises partly from the use of the word "defense" in the phrase "unreasonable self-defense," and partly from the close link between unreasonable self-defense and an actual defense, that is, true self-defense. The sole difference between true self-defense and "unreasonable self-defense" is that the former applies only when the defendant acts in response to circumstances that cause the defendant to fear, and would lead a reasonable person to fear, the imminent infliction of death or great bodily injury ( §§ 197, 198); unreasonable self-defense, on the other hand, does not require the defendant's fear to be reasonable. ( In re Christian S., supra, 7 Cal. 4th at p. 773.) Because unreasonable self-defense closely resembles
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