In California, murder is defined as “the unlawful killing of a human being, . . . with malice aforethought.” (Pen. Code, § 187.) One who intentionally kills in the “heat of passion,” however, lacks malice and is guilty not of murder, but of voluntary manslaughter. (Pen. Code, § 192.)
In this case, defendant was charged with murder. At trial, the jury heard evidence tending to show that defendant intentionally killed the victim in the heat of passion. This evidence, if credited by the jury, was sufficient to support a verdict of voluntary manslaughter. The trial court, however, did not instruct the jury that one who kills in the heat of passion lacks malice and is therefore not guilty of murder. The jury convicted defendant of murder.
I agree with the majority that, as a matter of state law, the trial court should have instructed the jury that an intentional killing in the heat of passion is not murder but voluntary manslaughter. I disagree, however, with the majority’s conclusion that the trial court’s failure to so instruct was not federal constitutional error as well. In my view, when a defendant is charged with murder and there is sufficient evidence to support a conviction for voluntary manslaughter on a “heat of passion” theory, failure to instruct on that theory violates the defendant’s federal constitutional rights to a jury trial and to due process of law. This conclusion rests on the unique relationship between murder and voluntary manslaughter, a relationship in which voluntary manslaughter includes all the elemental facts necessary to support a conviction for murder plus the additional elemental fact of heat of passion.
I
A group of young men shouting insults and threats approached defendant in his driveway one night. Defendant retreated inside his house and the men attacked defendant’s car with sticks and metal rods. Fearing for his safety, defendant got a gun and fired several shots through the door. The group began to flee. Defendant came outside and continued firing at the fleeing group, shooting and killing one of them.
Defendant was charged with murder.1 The jury was instructed that murder required proof of an unlawful killing with malice aforethought; it was not instructed that a killing done in the heat of passion lacks malice, making the killing only voluntary manslaughter, not murder.
The Court of Appeal reversed defendant’s conviction. It held that the trial court’s failure to instruct on its own initiative on voluntary manslaughter by reason of heat of passion was reversible error under state law.
*188II
I begin my analysis with a description of the unique relationship between murder and voluntary manslaughter, followed by an analysis of the federal constitutional consequences of that relationship.
Murder is defined by statute as an “unlawful killing” with “malice aforethought.” (Pen. Code, § 187, subd. (a).)2 Voluntary manslaughter, on the other hand, is an “unlawful killing” “without malice” and “upon a sudden quarrel or heat of passion”3 (§ 192), or upon a good faith but unreasonable belief in the need for self-defense (People v. Barton (1995) 12 Cal.4th 186, 199 [47 Cal.Rptr.2d 569, 906 P.2d 531]).
For purposes of murder, 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.” (§ 188.) Malice is the intent to kill (express malice) or intent to do an act dangerous to human life with conscious disregard of its danger (implied malice); accordingly, murder is proven by showing an unlawful killing plus either the intent to kill or the intent to do a dangerous act with conscious disregard of its danger. (People v. Saille (1991) 54 Cal.3d 1103, 1114 [2 Cal.Rptr.2d 364, 820 P.2d 588] [“express malice and an intent unlawfully to kill are one and the same”], 1115; People v. Swain (1996) 12 Cal.4th 593, 601-603 [49 Cal.Rptr.2d 390, 909 P.2d 994].)
When an unlawful killing that would otherwise be a murder is done in the heat of passion, malice is absent and the killing is only a voluntary manslaughter. To establish the absence of malice, however, it is not necessary to prove the absence of the mental states used to define malice—the intent to kill or the intent to do an act dangerous to human life with conscious disregard of its danger. Although the absence of malice may be shown in this way, it may also be shown by proving an additional elemental fact: that the defendant, even though intending to kill, acted in the heat of passion. “[W]hen the intentional killing results from a sudden quarrel or heat of passion induced by adequate provocation,” the killer lacks malice and the only crime committed is voluntary manslaughter. (People v. Saille, supra, 54 Cal.3d at p. 1114.) The presence of heat of passion establishes the absence of malice even when one of the mental states necessary for murder is present.
Thus, as a functional matter, the elemental facts proving the crime with the greater punishment—murder—are a subset of the elemental facts of the *189crime with the lesser punishment—voluntary manslaughter. Proof of the elemental facts of the crime of murder plus proof of an additional elemental fact (heat of passion) establishes the crime of voluntary manslaughter.
The relationship between murder and voluntary manslaughter is unlike the relationship between the typical greater offense and lesser included offense, in which the elemental facts of the greater offense encompass all of the elemental facts of the lesser offense. Here, the relationship is reversed, and the elemental facts of the lesser crime of voluntary manslaughter encompass the elemental facts of the greater crime of murder.4
What are the federal constitutional consequences of this unique relationship between murder and voluntary manslaughter?
The federal Constitution guarantees a defendant the right to have the jury decide the existence of all of the elements of the offense of which he is convicted. As I recently explained: “The Sixth Amendment to the federal Constitution ‘gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.’ (United States v. Gaudin (1995) 515 U.S. 506, 522-523 [115 S.Ct. 2310, 132 L.Ed.2d 444].) The jury’s ‘constitutional responsibility,’ the high court said in Gaudin, includes applying the law to the facts to determine the existence of each element of the crime—‘that is, [the] “ultimate” or “elemental” fact[s]’ needed to convict. (Id. at pp. 514-515.)” (People v. Flood (1998) 18 Cal.4th 470, 548 [76 Cal.Rptr.2d 180, 957 P.2d 869] (dis. opn. of Kennard, J.); see also id. at p. 491 (maj. opn.).)
In order to make a finding on each elemental fact needed to convict, the jury must of course be fully instructed on the elements of the crime. For that reason, instructions that omit or misdescribe an element of the offense, preventing the jury from making a necessary factual finding, are constitutionally defective. (People v. Flood, supra, 18 Cal.4th 470, 491 [“The prohibition against directed verdicts for the prosecution extends to instructions that effectively prevent the jury from finding that the prosecution failed to prove a particular element of the crime beyond a reasonable doubt.”].) Given the manner in which California has structured the relationship between murder and voluntary manslaughter, the complete definition of malice is the intent to kill or the intent to do a dangerous act with conscious disregard of its danger plus the absence of both heat of passion and unreasonable self-defense. Where, as here, there is sufficient evidence of heat of *190passion to support a voluntary manslaughter verdict, murder instructions that fail to inform the jury it may not find the defendant guilty of murder if heat of passion is present are incomplete instructions on the element of malice.5
The United States Supreme Court’s decision in Mullaney v. Wilbur (1975) 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508] supports this conclusion. At issue there was Maine’s law of murder and manslaughter, which like California’s defined murder as an unlawful killing with malice aforethought, defined malice as an intentional killing in the absence of provocation, and defined manslaughter as an intentional killing without malice. (Id. at pp. 684-687, 696-698, 703 [95 S.Ct. at pp. 1882-1884, 1888-1889, 1892].) As in California, murder and manslaughter in Maine were composed of common elemental facts (id. at p. 685 [95 S.Ct. at p. 1883]) except for manslaughter’s additional elemental fact of “heat of passion on sudden provocation” (id. at p. 703 [95 S.Ct. at p. 1892]). One requirement of due process is that the state has the burden of proving beyond a reasonable doubt every elemental fact necessary to establish the offense. (Id. at p. 685 [95 S.Ct. at p. 1883].) Maine, however, sought to put upon the defendant the buirden of proving the presence of heat of passion. Declaring that what mattered was “substance rather than . . . formalism” (id. at p. 699 [95 S.Ct. at p. 1890]), the high court concluded that, given the relationship Maine had structured between murder and manslaughter, due process required the state to treat the absence of heat of passion as part of the definition of murder and to assume the burden of proving that the defendant did not act in the heat of passion, just as the state must prove every other element of the crime. (Id. at pp. 698, 704 [95 S.Ct. at pp. 1889, 1892].) Similarly, here the absence of heat of passion must be treated as part of the definition of murder for jury instruction purposes.
Another avenue of federal constitutional analysis also leads to this conclusion. Due process requires fundamental fairness in the criminal procedures by which a defendant is convicted of a crime. (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 872 [102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193] [“Due process guarantees that a criminal defendant will be treated with ‘that fundamental fairness essential to the very concept of justice.’ ”]; Spencer v. Texas (1967) 385 U.S. 554, 563-564 [87 S.Ct. 648, 653, 17 L.Ed.2d 606] [“the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial”]; People v. Quartermain (1997) 16 Cal.4th 600, 618 [66 Cal.Rptr.2d 609, 941 P.2d 788].) In particular, due process “ensure[s] fundamental fairness in the determination of guilt at trial.” (Albright v. Oliver (1994) 510 U.S. 266, 283 [114 S.Ct. 807, 818, 127 L.Ed.2d 114] (conc. opn. of Kennedy, J.).)
*191As I have noted above, the relationship between murder and voluntary manslaughter is unique. The presence of heat of passion is consistent with the mental state and other facts that would support a murder verdict, but nonetheless heat of passion precludes a murder verdict. If a state has chosen to structure its crimes in this fashion, such that if the jury finds facts X plus Y it is a different crime with a greater punishment than if the jury finds facts X plus Y plus Z, it is fundamentally unfair (at least when there is evidence of Z in the record) not to inform the jury that if Z is present it may not convict the defendant of the greater crime. That is, the state cannot omit an instruction on voluntary manslaughter and thereby prevent the jury from determining the additional circumstance of heat of passion that would make the defendant factually innocent of murder; the defendant has a right to have the jury decide whether that additional circumstance, which is entirely consistent with the facts necessary to convict the defendant of murder, is present.
To omit the instruction creates the very real possibility that the defendant will be convicted of an offense of which, in the jury’s view, he is factually innocent under the evidence presented at trial, and it is hard to imagine anything more fundamentally unfair than that. It is manifestly unjust to permit the state to use the jury’s ignorance of the elements of voluntary manslaughter to convict a defendant of murder when the jury, had it known of voluntary manslaughter, could have found the additional circumstance of heat of passion that would have instead made the defendant liable only for that lesser crime. Such a procedure fails to ensure fundamental fairness in the determination of guilt at trial. The crucial consideration is that the presence of heat of passion is an additional circumstance, consistent with the elemental facts required to support a murder verdict, that not only establishes liability for voluntary manslaughter but precludes liability for murder.
Ill
Before analyzing whether the federal constitutional error in failing to instruct the jury that a killing lacks malice when it occurs in the heat of passion was harmless in this case, I address the majority’s conclusion that the issue has not been raised by the parties. (Maj. opn., ante, at p. 170, fn. 19.) The majority is mistaken. In their opening brief, the People, who are the petitioners here, correctly recognized that the issue is before this court and addressed it at length. Over the course of 20 pages they discussed the possibility that we would conclude the error here was the misdescription of an element of the offense of murder. They acknowledged in the following words that if the error here amounted to a misdescription of the elements of murder, it would be a federal constitutional error subject to harmless error *192analysis under Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065]: “Where the omission of an instruction on an applicable lesser included offense results in misinstruction on an element of the greater conviction offense, the standard of harmless error pronounced in Chapman v. California should apply.” “[I]f this Court determines that there was error in this case which resulted in the misinstruction on an element of the greater substantive offense, respondent submits this Court should address what harmless error standard applies where the omitted lesser included offense instructions do not modify the elements of the substantive offense for which the defendant was convicted.” The People further argued that, even if the trial court’s failure to instruct the jury that a killing in the heat of passion lacks malice and is only voluntary manslaughter amounts to a misdescription of an element of murder that is subject to federal constitutional harmless error review, this conclusion should not carry over to run-of-the-mill failures to instruct on lesser included offenses for crimes other than murder and manslaughter. In the People’s words: “Even if this Court concludes that, in this case, the trial court’s omission of instructions on the heat of passion theory of voluntary manslaughter resulted in the misinstruction on the element of malice for second degree murder, such a finding would not necessarily apply in other lesser included offense contexts.”
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 more succinct statement of the issue. Defendant then correctly explained that under controlling United States Supreme *193Court precedent (which I discuss and rely on below) the failure to completely instruct on the elements of the offense of which defendant is convicted cannot be cured by subsequent factfinding by a judge rather than a jury: “The United States Supreme Court is clear that a verdict rendered in the absence of jury instructions and findings regarding the component elements of the charge is irremediably defective because [a] post-verdict fact-finder attempting to correct the deficiency would be ‘the wrong entity.’ ”
Nor is it surprising that neither party raised the issue in the Court of Appeal. At that stage, the case was controlled by the well-established state law precedent of People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913] and its progeny. It would be pointless to require that a party entitled to prevail under settled state law announced long ago by this court must present to the Court of Appeal every conceivable alternative federal constitutional ground in support of its position on the purely hypothetical possibility that we will later grant the opposing party’s petition to review the case, discard our settled precedent, and rule against the prevailing party on the state law question. To do so would impose a purposeless burden on both the parties and the Courts of Appeal, for the Court of Appeal in such a case would, after wasting its time reading those arguments, invariably ignore them in adhering to and applying the settled law of this court. For a similar reason, the People in this case did not raise in the Court of Appeal the issue the majority decides—whether the standard of harmless error review this court announced in Sedeño should be changed. To do so would have been equally pointless, given the Court of Appeal’s inevitable adherence to Sedeño.
We have never required perfection in briefing as the price of recognizing a defendant’s constitutional rights. Defendant, the responding party in this court defending a favorable judgment by the Court of Appeal decided solely on state law grounds, more than adequately raised the issue of whether failing to instruct on heat of passion was federal constitutional error resulting in incomplete instructions on the elements of murder. Even though the majority remands the case for further proceedings, it remains a grave *194injustice for this court to refuse to recognize defendant’s claim and deny him his constitutional rights.
IV
Having concluded that the failure to give instructions on heat of passion was federal constitutional error, I now turn to the question of whether the error was harmless. Instructions omitting or misdescribing an element of an offense are subject to harmless error analysis under the test of Chapman v. California, supra, 386 U.S. 18, as applied in Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182]. (People v. Flood, supra, 18 Cal.4th 470, 503-507; accord, id. at p. 548 (dis. opn. of Kennard, J.).) The essential inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. 275, 279 [113 S.Ct. 2078, 2081], original italics.)
The three most common circumstances in which it may be concluded that the verdict is “surely unattributable to the error” are (1) when the jury has necessarily resolved the omitted factual question under other properly given instructions, (2) when some factual finding the jury has made is the functional equivalent of a finding on the omitted factual question (because no rational jury could find the fact actually found without also finding the omitted fact), and (3) when the defendant admitted or affirmatively conceded the omitted factual question. (People v. Flood, supra, 18 Cal.4th 470, 504-507; id. at pp. 548, 550-554 (dis. opn. of Kennard, J.).) None of these circumstances is present here. The jury did not resolve the question of whether defendant acted in the heat of passion under any of the instructions given, nor did the jury decide any question that was the functional equivalent of deciding whether defendant acted under the heat of passion. Defendant did not admit or affirmatively concede that he had not acted in the heat of passion.
The omission of an instruction on voluntary manslaughter by reason of heat of passion was not harmless, and defendant’s conviction is therefore unconstitutional.7
Conclusion
In this case, the jury that found defendant guilty of murder was never asked to determine whether defendant had acted in the heat of passion and *195therefore lacked malice and was not guilty of murder but only of voluntary manslaughter. There was sufficient evidence to support the conclusion that defendant had acted in the heat of passion. Accordingly, I would affirm the judgment of the Court of Appeal reversing defendant’s conviction.
References to “murder" are to murder in the second degree.
Further statutory references are to the Penal Code.
I use the term “heat of passion” to refer to the statutory language “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).)
Indeed, voluntary manslaughter might be termed a lesser including offense of murder, for although it carries a lesser penalty than murder, it includes all of the elemental facts of murder.
Here, the trial court did correctly instruct the jury on the unreasonable self-defense form of voluntary manslaughter.
Defendant’s claim that the trial court unconstitutionally “removed the issue of provocation negating malice from the jury” is a claim that the jury convicted him of murder without being fully instructed on the statutory element of malice. The majority, however, denies that defendant has presented this claim, concluding that the word “offense” in the sentence from defendant’s brief quoted in the text refers to voluntary manslaughter, not murder, and that defendant is only complaining of incomplete instructions on voluntary manslaughter. (Maj. *193opn., ante, at p. 169, fn. 18.) This conclusion is erroneous and illogical, for the offense defendant refers to can only be murder, the offense of which he was convicted, and not voluntary manslaughter, an offense of which he was not convicted. The danger posed by jury instructions omitting an element of the offense is that the defendant will be unjustly convicted of an offense without the jury finding that all its elements are present. Defendants thus can be harmed by instructions omitting an element of an offense only if they are convicted of the offense. Because omitting an element of an offense of which a defendant has not been convicted (in this case, manslaughter) cannot harm the defendant, the majority’s alteration turns defendant’s sentence into nonsense.
As I earlier stated, this case turns on the unique relationship between murder and voluntary manslaughter. It presents no occasion to address the question of what standard should be applied in general to determine whether a trial court’s failure to instruct sua sponte on a typical lesser included offense is harmless.