I respectfully dissent.
Impressed, or possibly blinded, by what it perceives to be sound public policy, the majority resurrects a legal doctrine long ago abrogated by the Legislature. Ironically, the resurrection occurs in the midst of a fierce legislative/political debate on the very question whether or not to restore the doctrine, and if so, to what extent. (See, e.g., Jordan, ‘Imperfect Self-Defense’ is linked to Domestic Violence, S.F. Daily J., (Feb. 16, 1994) p. 1; Martin, Reasonable Women (Mar. 1994) Cal. Law., p. 58 et seq.)
*787In a nutshell, when the Legislature redefined the legal concept of “malice” in 1981 by amendment to Penal Code section 188, it completely uprooted the doctrinal framework for the “imperfect self-defense” doctrine and left nothing in its place to support it. (Accord, Comment, Dead or Alive: Did the California Legislature Abolish “Imperfect Self-Defense”? (1993) 3 S.F. L.Rev. 1 [hereafter Comment].) If, as confirmed by this court in People v. Flannel (1979) 25 Cal.3d 668, 674-680 [160 Cal.Rptr. 84, 603 P.2d 1] (hereafter Flannel!), the sole statutory underpinning fpr the doctrine was a broad, now abrogated, definition of malice as including an awareness of one’s proper legal obligations to society, then there remains no statutory basis for the doctrine. No court, not even a supreme one, may create new defenses or revive abrogated ones simply as a matter of policy or preference. (See Walker v. Superior Court (1988) 47 Cal.3d 112, 135 [253 Cal.Rptr. 1, 763 P.2d 852] [common law defenses unavailable in California]; Keeler v. Superior Court (1970) 2 Cal.3d 619, 632 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420] [same].) Nor may a court create a new, nonstatutory offense (see Pen. Code, § 6), yet the majority’s revival of imperfect self-defense does just that, creating a type of “imperfect” voluntary manslaughter not requiring heat of passion or provocation, and thus not provided by statute (see Pen. Code, § 192).
The precise issue before us is whether the Legislature, by provisions enacted in 1981 that abolished the defense of diminished capacity and redefined the element of malice aforethought required for a murder conviction, likewise abrogated the so-called doctrine of “imperfect self-defense.” When applicable, this doctrine will reduce a murder charge to voluntary manslaughter if the defendant killed under an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury. (See Flannel, supra, 25 Cal.3d at pp. 674-680.) Unlike the majority herein, I conclude the imperfect self-defense doctrine has been legislatively abrogated by reason of the statutory redefinition of the element of malice aforethought.
I first review the development of the imperfect self-defense doctrine, and then summarize the 1981 statutory provisions (and 1982 initiative measure) which abrogated the doctrine. My analysis then turns to People v. Saille (1991) 54 Cal.3d 1103 [2 Cal.Rptr.2d 364, 820 P.2d 588] (hereafter Saille), wherein we considered a similar issue in the context of the partial defense of voluntary intoxication or mental disorder.
1. The imperfect self-defense doctrine
The development of the imperfect self-defense doctrine was fully traced in Flannel, supra, 25 Cal.3d 668. In that case, the defendant had been convicted *788of second degree murder after shooting to death a man with whom he had previously argued and fought. The evidence indicated that the defendant believed his victim had a knife and was prepared to attack him with it.
Defendant relied on a self-defense theory. The court instructed on that theory, as well as on the subjects of first and second degree murder, malice, manslaughter, and intoxication as it bore on intent to commit murder. The court failed to instruct sua sponte on imperfect self-defense.
On appeal, we explained that an honest but unreasonable belief that it is necessary to defend oneself from immediate peril to life or great bodily injury (i.e., imperfect self-defense) will negate malice aforethought and reduce the offense from murder to manslaughter. (See Flannel, supra, 25 Cal.3d at pp. 674-680.) We held, however, that the trial court did not err in failing to instruct sua sponte on imperfect self-defense because, when the case was tried, the doctrine could not be considered a “general principle” of law requiring such instruction. (Id. at pp. 680-683.) For future cases, we indicated that sua sponte instructions on the doctrine would be required where appropriate. (Id. at p. 683.)
In the course of our discussion, we traced the development of the imperfect self-defense doctrine as follows: In People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53], the defendant had been charged with the capital offense of assault on a police officer. We noted that an “honest though unreasonable" fear of bodily harm would not constitute a complete defense to the assault but would negate the element of malice required for that offense. (Id. at p. 345.) A subsequent decision (People v. Lewis (1960) 186 Cal.App.2d 585, 598 [9 Cal.Rptr. 263]) applied the foregoing theory in a homicide context. Dictum in People v. Sedeno (1974) 10 Cal.3d 703, 715, 718 [112 Cal.Rptr. 1, 518 P.2d 913], confirmed that instructions on “the effect of an unreasonable belief that deadly force was necessary in defense of self’ would be appropriate in a murder case when the evidence shows the defendant believed he was acting in self-defense. (See Flannel, supra, 25 Cal.3d at pp. 674-677.)
The People had argued in Flannel that malice could be negated only by sudden quarrel or heat of passion on reasonable provocation (Pen. Code, § 192; further statutory references are to this code unless otherwise indicated) or by diminished capacity caused by voluntary intoxication, mental disease or mental defect (e.g., People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911] [hereafter Conley]). According to the People, “the doctrine of unreasonable belief is necessarily bound up with or limited by the concepts of either heat of passion or diminished capacity.” (Flannel, *789supra, 25 Cal.3d at p. 677.) We disagreed, noting that “[t]o hold that an honest but unreasonable belief in the need to defend mitigates to manslaughter only if accompanied by the heat of passion-type terror expected of a reasonable man renders superfluous the unreasonable belief doctrine expressed” in prior cases. (Id. at p. 678.)
Flannel explained that “[t]he nature of malice is central here for ‘[mjurder is the unlawful killing of a human being . . . with malice aforethought’ (Pen. Code, § 187; ‘[manslaughter is the unlawful killing . . . , without malice.’ (Pen. Code, § 192.)” (Flannel, supra, 25 Cal.3d at p. 679.) Relying on Conley, supra, 64 Cal.2d at page 322, we noted that if one is aware of his societal duty to act within the law, and nonetheless does an act likely to cause serious injury or death to another, he thereby exhibits a wanton disregard for human life or antisocial motivation that is equivalent to malice aforethought. (Flannel, supra, at p. 679.)
Flannel concluded its analysis by rejecting the People’s claim that an honest belief, though unreasonably held, can be consistent with malice. As we stated, “[n]o matter how the mistaken assessment is made, an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard. Where the awareness of society’s disapproval begins, an honest belief ends. It is the honest belief of imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing.” (Flannel, supra, 25 Cal.3d at p. 679.)
In sum, although Flannel rejected the People’s contention that imperfect self-defense is “bound up or limited by” the diminished capacity doctrine, we stressed that imperfect self-defense operates to negate malice because it represents an unawareness of one’s legal and societal obligations, a state of mind necessarily inconsistent with malice. In the present case, we must decide whether, by reason of post-Flannel statutory amendments redefining the concept of malice, the doctrine of imperfect self-defense has been abrogated.
2. Statutory amendments
As we noted in Saille, supra, 54 Cal.3d at page 1111, in September 1981, the Legislature “added to the Penal Code sections 28 and 29, which abolished diminished capacity and limited psychiatric testimony. It amended section 22 on the admissibility of evidence of voluntary intoxication, section *790188 on the definition of malice aforethought, and section 189 on the definition of premeditation and deliberation. Other sections not relevant here were also amended.”
Thus, Penal Code section 28, subdivision (a), provides in pertinent part that evidence of mental illness “shall not be admitted to show or negate the capacity to form any mental state," but is “admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” Subdivision (b) of section 28 abolishes the defenses of diminished capacity, diminished responsibility, and irresistible impulse “as a matter of public policy.”
Penal Code section 29 provides that any expert testifying in the guilt phase of a criminal action “shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”
Penal Code section 22 was amended to reflect the abolition of diminished capacity. It provides that evidence of voluntary intoxication is not admissible to negate the capacity to form any mental state, but it is admissible “solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”
In addition, the Legislature amended Penal Code section 188 to define further the element of malice required for the crime of murder. This provision, which I maintain is dispositive of the issue before us, reads as follows: “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [][] When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice." (Italics added to indicate 1981 addition.)
We also noted in Saille that “[a] provision abolishing the defense of diminished capacity was also included in the initiative measure adopted in *791June 1982 and known as Proposition 8. Section 25 was added to the Penal Code as part of Proposition 8. Subdivision (a) of section 25 provides: ‘The defense of diminished capacity is hereby abolished. In a criminal action, as well as any juvenile court proceeding, evidence concerning an accused person’s intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.’ ” (54 Cal.3d at p. 1112.) Neither party herein has argued that the foregoing provision is relevant to the issue of the survival of the imperfect self-defense doctrine.
3. People v. Saille
Having set forth the pertinent provisions of the 1981 statutory amendments, I next review our analysis of those provisions in Saille, where a similar issue was raised regarding the survival of the partial defense of voluntary intoxication or mental disorder. There, we held that the foregoing statutory provisions combined to bar the “reduction of what would otherwise be murder to nonstatutory voluntary manslaughter due to voluntary intoxication and/or mental disorder.” (54 Cal.3d at p. 1107, fn. omitted.) We found it unnecessary in Saille, however, to address the effect of these amendments upon the “so-called ‘imperfect self-defense’ doctrine [which reduces] an intentional killing from murder to manslaughter when a person kills under an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury.” (Id. at p. 1107, fn. 1.)
In Saille, the defendant, after drinking several beers, killed a man during a struggle. On appeal from a murder conviction, he argued, inter alia, that the trial court erred in failing to instruct the jury that voluntary intoxication could negate express malice and reduce murder to voluntary manslaughter. Although we left open the question now before us, our analysis in Saille of the effect of the 1981 amendments on the preexisting doctrine of “nonstatutory voluntary manslaughter” is largely dispositive of the present issue.
Saille involved the continued vitality of the judicially created doctrine, allowing a reduction of murder charges to voluntary manslaughter by reason of the defendant’s lack of malice resulting from either voluntary intoxication or mental disorder. (See, e.g., Conley, supra, 64 Cal.2d at pp. 318-322 [one unable, because of intoxication or mental disorder, to comprehend his legal obligations to society cannot act with malice aforethought].)
As we noted in Saille, 54 Cal.3d at page 1110, our Conley decision, in explaining how diminished capacity negated malice, “redefined and expanded the mental component of malice aforethought beyond that stated in *792[former] section 188 to include a requirement that the defendant was able to comprehend the duty society places on all persons to act within the law, i.e., that he had an ‘awareness of the obligation to act within the general body of laws regulating society.’ [Citation.] Pursuant to this definition, we concluded [in Conley] that someone who is unable, because of intoxication or mental illness, to comprehend his duty to govern his actions in accord with the duty imposed by law, cannot act with malice aforethought.” (Fn. omitted.)
Saille then reviewed the 1981 statutory provisions, and particularly the amendment to Penal Code section 188 that added the following language: “When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.” (Saille, supra, 54 Cal.3d at p. 1113, italics omitted.)
Saille observed that “The first sentence of the [foregoing] passage limits malice to the definition set forth in section 188. This sentence clearly provides that once the trier of fact finds a deliberate intention unlawfully to kill, no other mental state need be shown to establish malice aforethought. Whether a defendant acted with a wanton disregard for human life or with some antisocial motivation is no longer relevant to the issue of express malice. [Citation.] No doubt about this conclusion is possible when the last sentence of section 188 is analyzed. That sentence directly repudiates the expanded definition of malice aforethought in Conley, supra, 64 Cal.2d 310 . . . , that express and implied malice include an awareness of the obligation to act within the general body of laws regulating society and the capability of acting in accordance with such awareness. After this amendment of section 188, express malice and an intent unlawfully to kill are one and the same. [Citation.]” (Saille, supra, 54 Cal.3d at pp. 1113-1114, fn. omitted.) Saille concluded that “Pursuant to the language of section 188, when an intentional kilting is shown, malice aforethought is established. Accordingly, the concept of ‘diminished capacity voluntary manslaughter’ . . . is no longer valid as a defense.” (54 Cal.3d at p. 1114, italics added.)
4. Survival of imperfect self-defense
As previously explained, the doctrine of imperfect self-defense, like diminished capacity/voluntary manslaughter, was derived from an expansive definition of malice that included an awareness of one’s legal and societal obligations. (See Flannel, supra, 25 Cal.3d at p. 679; Conley, supra, 64 *793Cal.2d at p. 322.) Yet, as Saille observes, that broadened definition of malice has now been abrogated, and no mental state need be shown to establish malice other than “an intent unlawfully to kill.” (Pen. Code, § 188.) Under Saille, it would appear to follow that imperfect self-defense is no longer available to negate the element of malice arising from an unlawful intentional killing, and thereby to reduce a murder to voluntary manslaughter.
The majority stresses that the legislative history that accompanied the 1981 amendments indicates no express intent to abrogate imperfect self-defense. First, I am not convinced of the validity of that premise, for the materials provided to the Legislature at the time it was considering these amendments included an analysis by the Assembly Committee on Criminal Justice stating as follows: “The purpose of this bill [including the 1981 amendments] is to eliminate the use of diminished capacity defenses; to eliminate psychiatric opinions on the ultimate issue of intent; and to reverse Supreme Court decisions that require certain cognitive requirements for first and second degree murder.” (Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 54, June 30, 1981, at p. 3, italics added.) The underscored language indicates a broader reach than merely abrogating the diminished capacity defense and could include reliance on Flannel's imperfect self-defense doctrine to rebut malice.
But whether or not the Legislature intended to abrogate Flannel, the fact remains that it did amend Penal Code section 188 to exclude the only statutory support for the imperfect self-defense doctrine. I find no authority for the majority’s apparent assumption that a statutory amendment can have no unanticipated consequences.
The majority nonetheless argues that one who kills with an honest though unreasonable fear of imminent peril cannot be said to intend to unlawfully kill his victim, as required by Penal Code section 188 to show express malice. Although the Legislature redefined “malice” to make it clear that unawareness of one’s societal/legal obligations cannot negate malice, it left in place the definition of express malice as manifested by “a deliberate intention unlawfully to take away the life of a fellow creature.” (Pen. Code, § 188.) The majority argues that mere intent to kill is insufficient unless the actor intended to act “unlawfully.” Thus, if the actor honestly believed he could lawfully kill his victim, no matter how absurd that belief was, he would not be acting with express or implied malice. (Maj. opn., ante, at p. 779, fn. 3.)
There are several flaws in this analysis. First, the single word “unlawfully” is a very weak statutory hook on which to hang the entire doctrine of *794imperfect self-defense. Certainly, neither Flannel nor any other case has relied on that word as significant in this regard. And I find it quite difficult to fathom how a doctrine entirely hidden within the statutory definition of express malice could possibly control the outcome in implied malice cases.
The majority suggests that one who acts with an unreasonable yet actual belief in the necessity of lethal resistance cannot demonstrate the “abandoned and malignant heart” required for implied malice murder. But no case has ever interpreted that language as incorporating the imperfect self-defense doctrine as a defense to implied malice murder. In any event, the implied malice issue was neither briefed nor argued and we should not reach it here.
Second, a similar argument was made in Saille in the context of a voluntary intoxication defense: Intoxication, it was argued, might reduce the ability to intend an “unlawful” killing. Rejecting the contention, we quoted with approval an earlier decision’s observation that the word “unlawfully” merely referred to the lack of any legally recognized justification, excuse or mitigation for the killing. (See Saille, supra, 54 Cal.3d at pp. 1114-1115; see also People v. Bobo (1990) 229 Cal.App,3d 1417, 1433-1434 [3 Cal.Rptr.2d 747]; People v. Stress (1988) 205 Cal.App.3d 1259, 1268 [252 Cal.Rptr. 913].)
Third, under the majority’s construction of the word “unlawfully,” a defendant could avoid a murder conviction because of his unreasonable mistake of fact as to the necessity of using lethal force to defend himself. But our cases make clear that in order for a mistake of fact to constitute a defense, it must be an honest and reasonable one. (E.g., People v. Williams (1992) 4 Cal.4th 354, 360-361 [14 Cal.Rptr.2d 441, 841 P.2d 961]; People v. Mayberry (1975) 15 Cal.3d 143, 155 [125 Cal.Rptr. 745, 542 P.2d 1337]; People v. Hernandez (1964) 61 Cal.2d 529, 534-536 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]; People v. Vogel (1956) 46 Cal.2d 798, 801 [299 P.2d 850].)
Fourth, and most critical, to accept the majority’s construction of the word “unlawfully” as including a threshold subjective awareness of the illegality or wrongfulness of one’s conduct would conflict with the express language of amended Penal Code section 188 that an awareness of one’s legal or societal obligations is no longer a prerequisite to a finding of malice. Stated another way, if one who is wholly unaware of his obligation to obey the law is nonetheless deemed capable of acting with malice (as now provided in § 188), then it would follow that one who mistakenly assesses the nature of his peril and the legality of a lethal response likewise must be deemed so *795capable. To hold otherwise would improperly create a theory of defense unauthorized by the Legislature.
The majority mentions the views of amicus curiae Orange County Women Lawyers Association that preservation of the imperfect self-defense doctrine is appropriate to assist battered or abused women charged with murdering their husbands or other persons who have subjected them to extreme abuse. (See Evid. Code, § 1107 [admissibility of evidence of battered women syndrome].) But in light of the express language of Penal Code section 188 redefining the element of malice, arguments regarding the social utility of the defense seem more properly addressed to the Legislature. Indeed, in 1993, legislation was proposed (1) to add a provision to the Penal Code codifying the imperfect self-defense doctrine (Assem. Bill No. 947), and (2) to amend the self-defense laws to provide additional defenses, including imperfect self-defense, in “domestic violence” situations (see Sen. Bill No. 1144). Although neither bill had passed before the Legislature adjourned in September 1993, presumably these bills will be reintroduced.
5. Conclusion
When he wrote Flannel in 1979, Justice Tobriner undoubtedly realized that it was improper for this court to create a defense, partial or otherwise, having no statutory basis. Imperfect self-defense cannot derive from the self-defense statutes (Pen. Code, §§ 195-199), for they afford an absolute defense to homicide and require reasonable belief. For the same reason, the doctrine cannot arise from the mistake of fact provision (id., § 26). Moreover, the doctrine cannot be based on the voluntary manslaughter statute (id., § 192, subd. (a)), with its requirements of heat of passion and provocation. Thus, Flannel relied on the only remaining statutory basis to support the doctrine of imperfect self-defense, namely, the concept of malice (id., § 188), as broadly interpreted by prior court decisions such as Conley, supra, 64 Cal.2d 310.
The 1981 amendments rewrote the law of malice. Conley was discredited and Flannel’s statutory justification for the doctrine vanished. Unless we wish to exercise unprecedented judicial power and create the doctrine afresh based on our personal views of suitable public policy, we must forthrightly acknowledge the problem and allow the Legislature to deal with it as it deems appropriate. (See generally, Comment, supra, 3 S.F. L.Rev. 1.)
*796I would reverse the judgment of the Court of Appeal with directions to resolve the minor’s remaining appellate issues.
Puglia, J.,* concurred.
Respondent’s petition for a rehearing was denied August 11, 1994.
Presiding Justice, Court of Appeal, Third Appellate District, assigned by the Acting Chairperson of the Judicial Council.