THE PEOPLE, Plaintiff and Respondent,

ALBERT JOSEPH BERRY, Defendant and Appellant
Supreme Court of California
18 Cal.3d 509, 556 P.2d 777, 134 Cal.Rptr. 415 (1976)


 Defendant Albert Joseph Berry was charged by indictment with one count of murder (Pen. Code, § 187) . . . . A jury found defendant guilty as charged and determined that the murder was of the first degree. (§ 189.) Defendant was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction.

 Defendant contends that there is sufficient evidence in the record to show that he committed the homicide while in a state of uncontrollable rage caused by provocation . . . and therefore that it was error for the trial court to fail to instruct the jury on voluntary manslaughter as indeed he had requested. He claims . . . that he was entitled to an instruction on voluntary manslaughter as defined by statute (§ 192) since the killing was done upon a sudden quarrel or heat of passion . . .

 Defendant, a cook, 46 years old, and Rachel Pessah, a 20-year-old girl from Israel, were married on May 27, 1974. Three days later Rachel went to Israel by herself, returning on July 13, 1974. On July 23, 1974, defendant choked Rachel into unconsciousness. She was treated at a hospital where she reported her strangulation by defendant to an officer of the San Francisco Police Department. On July 25, Inspector Sammon, who had been assigned to the case, met with Rachel and as a result of the interview a warrant was issued for defendant's arrest.

 While Rachel was at the hospital, defendant removed his clothes from their apartment and stored them in a Greyhound Bus Depot locker. He stayed overnight at the home of a friend, Mrs. Jean Berk, admitting to her that he had choked his wife. On July 26, he telephoned Mrs. Berk [p. 513]  and informed her that he had killed Rachel with a telephone cord on that morning at their apartment. The next day Mrs. Berk and two others telephoned the police to report a possible homicide and met Officer Kelleher at defendant's apartment. They gained entry and found Rachel on the bathroom floor. A pathologist from the coroner's office concluded that the cause of Rachel's death was strangulation. Defendant was arrested on August 1, 1974, and confessed to the killing.

 At trial defendant did not deny strangling his wife, but claimed through his own testimony and the testimony of a psychiatrist, Dr. Martin Blinder, that he was provoked into killing her because of a sudden and uncontrollable rage so as to reduce the offense to one of voluntary manslaughter. He testified that upon her return from Israel, Rachel announced to him that while there she had fallen in love with another man, one Yako, and had enjoyed his sexual favors, that he was coming to this country to claim her and that she wished a divorce. Thus commenced a tormenting two weeks in which Rachel alternately taunted defendant with her involvement with Yako and at the same time sexually excited defendant, indicating her desire to remain with him. Defendant's detailed testimony, summarized below, chronicles this strange course of events.

 After their marriage, Rachel lived with defendant for only three days and then left for Israel. Immediately upon her return to San Francisco she told defendant about her relationship with and love for Yako. This brought about further argument and a brawl that evening in which defendant choked Rachel and she responded by scratching him deeply many times. Nonetheless they continued to live together. Rachel kept taunting defendant with Yako and demanding a divorce. She claimed she thought she might be pregnant by Yako. She showed defendant pictures of herself with Yako. Nevertheless, during a return trip from Santa Rosa, Rachel demanded immediate sexual intercourse with defendant in the car, which was achieved; however upon reaching their apartment, she again stated that she loved Yako and that she would not have intercourse with defendant in the future.

 On the evening of July 22d defendant and Rachel went to a movie where they engaged in heavy petting. When they returned home and got into bed, Rachel announced that she had intended to make love with defendant, "But I am saving myself for this man Yako, so I don't think I will." Defendant got out of bed and prepared to leave the apartment [p. 514]  whereupon Rachel screamed and yelled at him. Defendant choked her into unconsciousness.

 Two hours later defendant called a taxi for his wife to take her to the hospital. He put his clothes in the Greyhound bus station and went to the home of his friend Mrs. Berk for the night. The next day he went to Reno and returned the day after. Rachel informed him by telephone that there was a warrant for his arrest as a result of her report to the police about the choking incident. On July 25th defendant returned to the apartment to talk to Rachel, but she was out. He slept there overnight. Rachel returned around 11 a.m. the next day. Upon seeing defendant there, she said, "I suppose you have come here to kill me." Defendant responded, "yes," changed his response to "no," and then again to "yes," and finally stated "I have really come to talk to you." Rachel began screaming. Defendant grabbed her by the shoulder and tried to stop her screaming. She continued. They struggled and finally defendant strangled her with a telephone cord.

 Dr. Martin Blinder, a physician and psychiatrist, called by the defense, testified that Rachel was a depressed, suicidally inclined girl and that this suicidal impulse led her to involve herself ever more deeply in a dangerous situation with defendant. She did this by sexually arousing him and taunting him into jealous rages in an unconscious desire to provoke him into killing her and thus consummating her desire for suicide. Throughout the period commencing with her return from Israel until her death, that is from July 13 to July 26, Rachel continually provoked defendant with sexual taunts and incitements, alternating acceptance and rejection of him. This conduct was accompanied by repeated references to her involvement with another man; it led defendant to choke her on two occasions, until finally she achieved her unconscious desire and was strangled. Dr. Blinder testified that as a result of this cumulative series of provocations, defendant at the time he fatally strangled Rachel, was in a state of uncontrollable rage, completely under the sway of passion.

 We [now] take up defendant's claim that on the basis of the foregoing evidence he was entitled to an instruction on voluntary manslaughter as defined by statute which is "the unlawful killing of a human being, without malice ... upon a sudden quarrel or heat of passion." (§ 192.) In [p. 515]  People v. Valentine (1946) 28 Cal.2d 121 [169 P.2d 1], this court, in an extensive review of the law of manslaughter, specifically approved the following quotation from People v. Logan (1917) 175 Cal. 45, 48-49 [164 P. 1121] as a correct statement of the law: "In the present condition of our law it is left to the jurors to say whether or not the facts and circumstances in evidence are sufficient to lead them to believe that the defendant did, or to create a reasonable doubt in their minds as to whether or not he did, commit his offense under a heat of passion. The jury is further to be admonished and advised by the court that this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. ... For the fundamental of the inquiry is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion - not necessarily fear and never, of course, the passion for revenge - to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." (28 Cal.2d at pp. 138-139, italics in original.)

 We further held in Valentine that there is no specific type of provocation required by section 192 and that verbal provocation may be sufficient. (28 Cal.2d at pp. 141-144.) In People v. Borchers (1958) 50 Cal.2d 321, 329 [325 P.2d 97] in the course of explaining the phrase "heat of passion" used in the statute defining manslaughter we pointed out that "passion" need not mean "rage" or "anger" but may be any "[v]iolent, intense, high-wrought or enthusiastic emotion" and concluded there "that defendant was aroused to a heat of 'passion' by a series of events over a considerable period of time. ..." (50 Cal.2d at p. 328, 329.) Accordingly we there declared that evidence of admissions of infidelity by the defendant's paramour, taunts directed to him and other conduct, "supports a finding that defendant killed in wild desperation induced by [the woman's] long continued provocatory conduct." (50 Cal.2d at p. 329.) (1a) We find this reasoning persuasive in the case now before us. Defendant's testimony chronicles a two-week period of provocatory conduct by his wife Rachel that could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly from this passion. It is significant that both [p. 516]  defendant and Dr. Blinder testified that the former was in the heat of passion under an uncontrollable rage when he killed Rachel.

 The Attorney General contends that the killing could not have been done in the heat of passion because there was a cooling period, defendant having waited in the apartment for 20 hours. However, the long course of provocatory conduct, which had resulted in intermittent outbreaks of rage under specific provocation in the past, reached its final culmination in the apartment when Rachel began screaming. Both defendant and Dr. Blinder testified that defendant killed in a state of uncontrollable rage, of passion, and there is ample evidence in the record to support the conclusion that this passion was the result of the long course of provocatory conduct by Rachel, just as the killing emerged from such conduct in Borchers. The Attorney General relies principally on People v. Bufarale (1961) 193 Cal.App.2d 551, 559-563 [14 Cal.Rptr. 381] but the reliance is misplaced. Bufarale merely held that the defendant's killing of a married woman with whom he had been living was not, as a matter of law, upon the heat of passion since the defendant's act was one of vengeance, preceded by neither a quarrel with, nor by adequate provocatory conduct on the part of, the victim, who had decided to return to her husband.

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 . . . [T]he judgment is reversed . . . .