What is the effect of the Court of Appeal's failure to instruct the jury that a killing in the heat of passion lacks malice and is at most voluntary manslaughter?

Defendant addressed this issue in his answering brief. He asserted that the failure to instruct the jury that a killing in the heat of passion lacks malice and is at most voluntary manslaughter violated his federal constitutional rights to due process and to a jury trial "and the requirement that prosecution prove each fact necessary to constitute the crime charged beyond a reasonable doubt (Fourteenth Amendment [to the federal Constitution] )." Defendant specifically relied on United States v. Gaudin (1995) 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444, a case underpinning my analysis above. He stated: "The Fifth and Sixth Amendment guarantee a jury trial and proof beyond a reasonable doubt as to each element of a criminal offense.... Reversal is therefore compelled where there is a failure to instruct on any component element of a crime." He continued: "In this case, the failure to instruct on heat of passion manslaughter effectively omitted an element of the offense and removed the issue of provocation negating malice from the jury." ⁶ It is hard to imagine a [960 P.2d 1127] more succinct statement of the issue. Defendant

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