What is the test for a jury to convict a defendant of unlawful killing in a case of mistaken identity regarding duress?

As noted above in our discussion of defendant's claim of instructional error regarding duress (ante , 211 Cal.Rptr.3d at pp. 196201, 385 P.3d at pp. 357361), the element of malice may be negated by evidence that (1) the defendant acted in a sudden quarrel or heat of passion, or (2) the defendant unreasonably but in good faith believed it was necessary to act in self-defense. If either of these circumstances is found, an unlawful killing will be voluntary manslaughter rather than murder. "Only these circumstances negate malice when a defendant intends to kill." (People v. Manriquez (2005) 37 Cal.4th 547, 583, 36 Cal.Rptr.3d 340, 123 P.3d 614.)

The heat of passion sufficient to reduce murder to manslaughter "exists only where the killer's reason was actually obscured as a result of a strong passion aroused by a "provocation" sufficient to cause an " ordinary [person] of average disposition ... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. " ' " (People v. Carasi (2008) 44 Cal.4th 1263, 1306, 82 Cal.Rptr.3d 265, 190 P.3d 616.) The belief required to support imperfect self-defense is that the defendant "was in imminent danger of death or great bodily injury." (People v. Booker (2011) 51 Cal.4th 141, 182, 119 Cal.Rptr.3d 722, 245 P.3d 366.) This

[2 Cal.5th 98]

doctrine is a " narrow " one and "will apply only when the defendant has an actual belief in the need for self-defense and only when the defendant fears immediate harm that " must be instantly dealt with . " ' " (People v. Rogers (2006) 39 Cal.4th 826, 883, 48 Cal.Rptr.3d 1, 141 P.3d 135.)

A trial court must instruct a jury regarding lesser included offenses " "whenever evidence

[385 P.3d 364]

that the defendant is guilty only of the lesser offense is substantial

[211 Cal.Rptr.3d 204]

enough to merit consideration by the jury [Citations.] Substantial evidence in this context is "evidence from which a jury composed of reasonable [persons] could ... conclude[ ]" that the lesser offense, but not the greater was committed." ' " (People v. Sattiewhite, supra, 59 Cal.4th at p. 477, 174 Cal.Rptr.3d 1, 328 P.3d 1.)