## Facts

- Albert Joseph Berry (46) married Rachel Pessah Berry (20) on May 27, 1974; shortly after, she traveled to Israel alone and returned in mid-July.
- After returning, Rachel told Berry she loved another man, wanted a divorce, and alternated between saying she would leave and saying she wanted to stay.
- Over roughly two weeks, Rachel allegedly taunted Berry about the other relationship and engaged in sexual provocation followed by rejection, including explicit descriptions of the affair.
- On July 23, 1974, Berry choked Rachel unconscious; she was hospitalized and reported the assault, and an arrest warrant issued.
- Berry removed his belongings from the apartment, stayed elsewhere, and later returned to the apartment; he remained there alone overnight awaiting Rachel’s return.
- On July 26, 1974, when Rachel returned, she screamed; Berry struggled with her and strangled her to death.
- Berry was arrested, confessed, and a psychiatrist testified that Rachel’s behavior could provoke Berry into “explosive” or “uncontrollable” rage, without diagnosing a mental disease or defect negating malice.

## Issues

1. Whether the trial court committed reversible error by refusing to instruct the jury on voluntary manslaughter based on killing “upon a sudden quarrel or heat of passion.”
2. Whether the evidence required a separate voluntary manslaughter instruction based on diminished capacity to negate malice.

## Decision

- The California Supreme Court reversed the first-degree murder conviction because substantial evidence supported a heat-of-passion voluntary manslaughter instruction.
- The court held the trial judge improperly withheld the manslaughter option from the jury where provocation evidence could support a finding that Berry acted under heat of passion.
- The court rejected diminished-capacity manslaughter instructions because the psychiatric evidence showed intense rage but not a qualifying mental disease or defect.
- The assault conviction was affirmed, and the matter was remanded for further proceedings consistent with the opinion.

## Legal Principles

- A defendant is entitled to a heat-of-passion voluntary manslaughter instruction when there is substantial evidence from which a reasonable jury could find the killing resulted from provocation that aroused an intense emotion, and the defendant’s passion had not cooled.
- Adequate provocation is not limited to physical acts; verbal and psychological provocation may suffice.
- Provocation may be cumulative; a course of provocative conduct over time can support heat of passion if the jury could find the killing was the direct result of continuing provocation and an uncooled emotional state.
- Diminished capacity (as a basis to negate malice) requires evidence of mental disease or defect; emotional disturbance or rage alone is insufficient.

## Conclusion

The court required a voluntary manslaughter instruction where evidence supported a reasonable inference that prolonged, taunting provocation produced an uncooled heat of passion at the time of the killing, but it refused a diminished-capacity instruction absent proof of mental disease or defect affecting malice.


People v. Berry, 18 Cal. 3d 509 (Cal. 1976)