I dissent.
After trial in the superior court, a jury returned a verdict finding defendant guilty of the voluntary manslaughter of his wife and also made a finding that he personally used a firearm therein. The superior court rendered a judgment convicting and sentencing him accordingly.
The Court of Appeal reversed. As defendant had claimed, it concluded that the jury’s verdict finding him guilty of voluntary manslaughter was not supported by sufficient evidence in violation of the due process clause of the Fourteenth Amendment to the United States Constitution as construed in Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560], It then remanded the cause to the superior court with directions to render a judgment convicting defendant of involuntary manslaughter and sentencing him therefor.
Although it was without any ground on which to order review, this court nevertheless chose to intervene, apparently in order to do what it deemed to *70be substantial justice. Regrettably, in reversing the Court of Appeal’s judgment today, it has done the opposite.
I
Murder is the “unlawful killing of a human being . . . with malice aforethought.” (Pen. Code, § 187, subd. (a).) Malice aforethought “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.” (Id., § 188.) Murder is “of the first degree” if it is “perpetrated ... by any . . . kind of willful, deliberate, and premeditated killing,” including tilling by specified means, or if it is “committed in the perpetration of, or attempt to perpetrate,” specified felonies. (Id., § 189.) Murder is “of the second degree” if it is not of the first (ibid.), which means that it is simply an unlawful tilling with malice aforethought.
Manslaughter is the “unlawful tilling of a human being without malice” aforethought. (Pen. Code, § 192.) Manslaughter is “[vjoluntary” if it is perpetrated “upon a sudden quarrel or heat of passion” (id., § 192, subd. (a)) following provocation adequate to arouse a reasonable person (e.g., People v. Valentine (1946) 28 Cal.2d 121, 136-144 [169 P.2d 1])—in other words, if it is perpetrated upon “adequate provocation” (e.g., People v. Rhinehart (1973) 9 Cal.3d 139, 154 [107 Cal.Rptr. 34, 507 P.2d 642], disapproved on another point, People v. Bolton (1979) 23 Cal.3d 208, 213-214 [152 Cal.Rptr. 141, 589 P.2d 396]; People v. Williams (1969) 71 Cal.2d 614, 624 [79 Cal.Rptr. 65, 456 P.2d 633]) or, simply, upon “provocation” (e.g., People v. Jackson (1980) 28 Cal.3d 264, 305 [168 Cal.Rptr. 603, 618 P.2d 149] (plur. opn.); People v. Morse (1969) 70 Cal.2d 711, 734 [76 Cal.Rptr. 391, 452 P.2d 607]; 1 Wittin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, § 512, p. 579). Manslaughter is “[i]nvoluntary” if it is perpetrated (other than in the driving of a vehicle) “in the commission of an unlawful act, not amounting to a felony” (Pen. Code, § 192, subd. (b))—briefly, in the course of a misdemeanor—or “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection” (ibid.)—in short, as a result of what is termed “criminal negligence.”1
*71n
At the trial of this cause, the evidence introduced by the People and by defendant himself showed, virtually beyond dispute, that the “conduct/ result” element common to first and second degree murder and voluntary and involuntary manslaughter was present: As defendant was brandishing a handgun in his wife’s face, he shot and killed her, and did so unlawfully. But as for the “mental” element peculiar to each offense, it was otherwise. For defendant’s state of mind at the time of the incident was difficult to assess. What was clear was that he was then so profoundly intoxicated as to approach unconsciousness, coma, and even death. An expert so testified. What was also clear was that he had not been provoked. There was simply no direct or even circumstantial evidence that showed or even suggested that he had been confronted with any word or deed, on the part of his wife or anyone else, that would have been adequate to arouse a reasonable person to do what he did. Unsurprisingly, the prosecutor did not argue in favor of voluntary manslaughter on any theory, but, quite the contrary, argued against it without qualification. So too did defense counsel.
In its charge to the jury, the superior court defined murder as the unlawful killing of a human being with malice aforethought, and defined malice aforethought as “either express or implied”: it is “express” when “there is manifested an intention unlawfully to kill a human being”; it is “implied” when (1) the “killing resulted from an intentional act,” (2) the “natural consequences of the act are dangerous to human life,” and (3) the “act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” It instructed on first degree murder, by premeditation and deliberation but not in the perpetration of a felony. It also *72instructed on second degree murder, specifically via implied malice aforethought and not express.
In addition, the superior court defined manslaughter as the unlawful killing of a human being without malice aforethought. It implied that malice aforethought might be absent if the killing occurred during intoxication. In spite of the absence of evidence introduced by either the People or defendant, and in the face of argument to the contrary presented by both the prosecutor and defense counsel, it stated that malice aforethought might be deemed to be absent “if the killing occurred . . . upon a sudden quarrel or heat of passion” following “provocation ... of such character and degree as naturally would excite or arouse” such a state of affairs. It also stated that malice aforethought had to be deemed to be absent unless the People proved beyond a reasonable doubt that the killing did not occur under circumstances of this sort. Again, in spite of the absence of evidence, and in the face of argument to the contrary, it instructed—erroneously—on voluntary manslaughter. It stated that the offense required that (1) a “human being was killed,” (2) the “killing was unlawful,” and (3) the “killing was done with the intent to kill.” It implied that the offense required that the “killing occurred . . . upon a sudden quarrel or heat of passion” following “provocation . . . of such character and degree as naturally would excite or arouse” such a state of affairs. It stated that the People had to prove beyond a reasonable doubt that the killing did not occur under circumstances of this sort. It also instructed on involuntary manslaughter. It stated that the offense required that (1) a “human being was killed,” and (2) the “killing was unlawful.” It instructed on the offense—erroneously—only as a result of criminal negligence and not also in the course of a misdemeanor, such as brandishing a firearm (Pen. Code, § 417, subd. (a)(2)), inasmuch as it stated only that a “killing is unlawful ... if it occurred” “[i]n the commission of an act ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.”
On the first day of its deliberations, the jury requested an examination of certain evidence reflective of the setting and surroundings of the killing. The superior court granted what it sought.
On the second day, the jury requested a rereading of the testimony of the expert that defendant was so profoundly intoxicated at the time of the incident as to approach unconsciousness, coma, and even death. Again, the superior court granted what it sought.
On the third and last day, the jury returned a verdict finding defendant not guilty of first degree murder and then one finding him not guilty of second *73degree murder. In so doing, under the instructions given, it necessarily found that there was at least a reasonable doubt about malice aforethought—which meant that there was at least a reasonable doubt about malice aforethought both in its express form, which entailed intent to kill, and in its implied form, which involved conscious disregard for human life. After it returned its not guilty verdict on first degree murder, it informed the superior court that it was then “unable to reach a unanimous verdict on” second degree murder. The superior court instructed that, “If you are satisfied beyond a reasonable doubt that the killing was unlawful but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of such doubt and find it to be manslaughter rather than murder.” Later, the jury made requests relating to second degree murder via implied malice aforethought: What is the definition of “conscious disregard for human life”? What kind of act is required? The latter request the superior court granted, essentially paraphrasing one of the instructions that it had given. The former request it refused: “You must use your common sense to arrive at the definition of this term.” In making its requests, the jury revealed that it could not agree whether the People had proved beyond a reasonable doubt that defendant harbored malice aforethought in its implied form because of his profound intoxication. It did not reveal any concern that they might have failed to prove to the same degree of certainty that he had not been provoked—with the result that he had to be deemed not to have harbored malice aforethought, either express or implied, whether he actually did so or not. It proceeded to return the verdict, referred to above, finding him not guilty of second degree murder. Finally, it returned a verdict finding him guilty of voluntary manslaughter, and also made a finding that he personally used a firearm therein. In so doing, under the instructions given, it necessarily found intent to kill and provocation beyond a reasonable doubt. As a consequence, it had no occasion to return any verdict on involuntary manslaughter.
III
On defendant’s claim, the Court of Appeal concluded that the jury’s verdict finding him guilty of voluntary manslaughter was not supported by sufficient evidence in violation of the Fourteenth Amendment’s due process clause.
Rightly so.
A jury’s verdict finding a defendant guilty of an offense satisfies the Fourteenth Amendment’s due process clause as construed in Jackson v. Virginia, supra, 443 U.S. 307, if, and only if, it is supported by sufficient *74evidence. (Id. at pp. 313-324 [99 S.Ct. at pp. 2785-2792].) It is supported by sufficient evidence if, and only if, it is supported by evidence that would have allowed at least some rational trier of fact to have found each of the offense’s elements beyond a reasonable doubt. (Ibid.)
In this cause, the jury’s verdict finding defendant guilty of voluntary manslaughter was not supported by sufficient evidence because it was not supported by evidence that would have allowed any rational trier of fact to have found the element of provocation beyond a reasonable doubt. What was stated above bears restatement here: There was simply no direct or even circumstantial evidence that showed or even suggested that defendant had been confronted with any word or deed, on the part of his wife or anyone else, that would have been adequate to arouse a reasonable person to do what he did.
It is plain that a verdict by the jury finding defendant guilty of second degree murder, had one been returned, would have been supported by sufficient evidence. A rational trier of fact could have found each of the elements of this offense beyond a reasonable doubt. It could surely have determined to the requisite degree of certainty that there was an unlawful killing. So too as for malice aforethought, at least in its implied form.
It is also plain that a verdict by the jury finding defendant guilty of involuntary manslaughter, had one been returned, would have been supported by sufficient evidence. A rational trier of fact could have found each of the elements of this offense beyond a reasonable doubt. As stated, it could surely have determined to the requisite degree of certainty that there was an unlawful killing. Likewise for its occurrence as a result of criminal negligence or in the course of a misdemeanor, to wit, brandishing a firearm.
But it is just as plain that the jury’s verdict finding defendant guilty of voluntary manslaughter—the verdict that it did in fact return—was not supported by sufficient evidence. Without any evidence whatsoever to rely on, no rational trier of fact could have found the element of provocation.
IV
The plurality practically ignore the Court of Appeal’s conclusion that the jury’s verdict finding defendant guilty of voluntary manslaughter was not supported by sufficient evidence in violation of the Fourteenth Amendment’s due process clause. They likewise practically ignore defendant’s claim to *75that effect—a point that he raised below, and one that he has not abandoned here.2
The reason for the plurality’s virtual omission is not hard to guess. Any attempt to reject the Court of Appeal’s conclusion or to deny defendant’s claim would not, and could not, succeed.
Instead of accepting reversal, which is assuredly mandated by the United States Constitution, the plurality strain after affirmance, which is supposedly mandated by the California Constitution.
Of course, if the California Constitution demanded affirmance and the United States Constitution demanded reversal, the conflict would have to be resolved in favor of the latter and against the former. The supremacy clause, which the federal document contains in its article VI, clause 2, and which the state document acknowledges in its article III, section 1, requires no less.
To affirm under the California Constitution, the plurality rely on People v. Powell (1949) 34 Cal.2d 196 [208 P.2d 974],
In Powell, we held that a defendant is “precluded from complaining” on appeal that “he was convicted of a lesser offense than the one of which he is guilty according to undisputed evidence, or according to that view of the evidence which, it indisputably appears, the trier of fact accepted.” (People v. Powell, supra, 34 Cal.2d at p. 206, italics added.)
Under the rule of Powell, defendant is not precluded from complaining of his conviction for voluntary manslaughter.
For it is simply not the case that defendant is guilty of first or even second degree murder “according to undisputed evidence.” (People v. Powell, supra, 34 Cal.2d at p. 206.) The evidence was, manifestly, disputed and disputable. The plurality do not claim otherwise.
Neither is it the case that defendant is guilty of first or even second degree murder “according to that view of the evidence which, it indisputably *76appears, the trier of fact accepted.” (People v. Powell, supra, 34 Cal.2d at p. 206.) The plurality claim otherwise. I should not have to emphasize this fact, but evidently I must: The jury returned a verdict finding defendant not guilty of first degree murder. It also returned a verdict finding him not guilty of second degree murder. It thereby showed “indisputably” that the “view of the evidence” that it “accepted” prevented it from finding him guilty of either offense.
The plurality assert that the evidence was sufficient for a verdict by the jury finding defendant guilty of second degree murder. That is true. But of no import.
The plurality then assert that the jury “necessarily” found that defendant was indeed guilty of second degree murder, or at least that it “necessarily” found each of its elements. (Plur. opn., ante, at p. 52.) That is false.
The plurality’s major premise is that malice aforethought in its express form entails intent to kill. It will be accepted for purposes of discussion.
The plurality’s minor premise is that the jury “necessarily” found malice aforethought in its express form by returning its verdict finding defendant guilty of voluntary manslaughter—which, under the instructions given, implies a finding of intent to kill beyond a reasonable doubt. It must be rejected.
The plurality altogether disregard the jury’s verdicts finding defendant not guilty of first or second degree murder—which, under the instructions given, imply a finding, subject only to a single qualification, of at least a reasonable doubt about intent to kill.
For the first- and second-degree-murder not guilty verdicts imply a finding of at least a reasonable doubt about malice aforethought. A finding of at least a reasonable doubt about malice aforethought implies, in turn, a finding of at least a reasonable doubt about both its express form and its implied form. A finding of at least a reasonable doubt about malice aforethought’s implied form implies, in its turn, a finding of at least a reasonable doubt about what that form involves, namely, conscious disregard for human life. Similarly—and decisively here—a finding of at least a reasonable doubt about malice aforethought’s express form implies, in its turn, a finding of at least a reasonable doubt about what that form entails, namely, intent to kill.
The qualification referred to above is this: As a matter of logic, the first- and second-degree-murder not guilty verdicts might perhaps simply imply a *77finding that the People did not prove the absence of provocation beyond a reasonable doubt, with the result that defendant had to be deemed not to have harbored malice aforethought, either express or implied, whether he actually did so or not. As a matter of fact, however, the verdicts in question do not so imply. The plurality themselves effectively admit that it was not “likely” that provocation was even at issue. (Plur. opn., ante, at p. 64.) Reasonably so. For, as both the prosecutor and defense counsel argued, neither the People nor defendant introduced any direct or even circumstantial evidence that showed or even suggested that defendant had been confronted with any word or deed, on the part of his wife or anyone else, that would have been adequate to arouse a reasonable person to do what he did. From all that appears, the jury did not speculate otherwise. As explained above, it could not agree whether the People had proved beyond a reasonable doubt that defendant harbored malice aforethought in its implied form because of his profound intoxication. It was not concerned that they might have failed to prove to the same degree of certainty that he had not been provoked.
Not only do the plurality rely on the rule of Powell to affirm under the California Constitution, they also rely on a rule that they derive from the common law of various jurisdictions. (See generally Annot., Propriety of Manslaughter Conviction in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter (1983) 19 A.L.R.4th 861, 864-912.)
At the outset, we must note that this rule, which dispenses with the requirement of sufficient evidence for each of the elements of an offense as a matter of common law (see Annot., Propriety of Manslaughter Conviction in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter, supra, 19 A.L.R.4th at pp. 864-912), arose prior to, and therefore apart from, Jackson v. Virginia, supra, 443 U.S. 307, which imposes such a requirement under the Fourteenth Amendment’s due process clause (see id. at pp. 313-324 [99 S.Ct. at pp. 2785-2792]). We must also note that the rule—to understate the matter—is now of dubious vitality.
That put aside, the rule operates in the following situation: At a defendant’s trial, there was sufficient evidence of each of the elements of a greater offense; by contrast, there was not sufficient evidence of at least one of the elements of a lesser offense; he was convicted of the lesser offense and not the greater. On appeal, he is not allowed to complain of the result, because the result (it is supposed) was necessarily favorable to his interests: he could have been convicted of the greater offense instead of the lesser.
In a different situation, the rule does not operate: At a different defendant’s trial, there was sufficient evidence of each of the elements of a greater *78offense; by contrast, there was not sufficient evidence of at least one of the elements of a lesser offense; there was, however, sufficient evidence of each of the elements of an even lesser, or “least,” offense; he was convicted of the lesser offense and not the greater or the least. On appeal, he is allowed to complain of the result, because the result was not necessarily favorable to his interests: although he could have been convicted of the greater offense instead of the lesser, he could also have been convicted of the least.
This cause presents the latter situation and not the former. At defendant’s trial, there was sufficient evidence of each of the elements of second degree murder; by contrast, there was not sufficient evidence of at least one element of voluntary manslaughter, specifically, provocation; there was, however, sufficient evidence of each of the elements of involuntary manslaughter; he was convicted of voluntary manslaughter and not second degree murder or involuntary manslaughter. On appeal, he is allowed to complain of the result, because the result was not necessarily favorable to his interests: although he could have been convicted of second degree murder instead of voluntary manslaughter, he could also have been convicted of involuntary manslaughter.
Over a century ago, we held that a “defendant cannot complain where the determination of his case was more favorable to him than the evidence warranted.” (People v. Muhlner (1896) 115 Cal. 303, 306 [47 P. 128].)
But neither before nor since had we ever even suggested that a defendant could not complain where the determination might have been less favorable. The plurality are wrong to do so now.3
V
For the reasons stated above, I would affirm the judgment of the Court of Appeal.
Werdegar, J., J., concurred.
As in People v. Breverman (1998) 19 Cal.4th 142 [77 Cal.Rptr.2d 870, 960 P.2d 1094], I must again “decline to consider, in detail and in depth, the relationship between murder and manslaughter . . . .” (Id. at p. 184, fn. 1 (dis. opn. of Mosk, J.).) Although the issue is indeed implicated here, it is not adequately presented. Its resolution will depend on answers to *71questions such as these: Is malice aforethought “negate[d]” by provocation? (People v. Saille (1991) 54 Cal.3d 1103,1114 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Or is it simply defined so as to exclude it from its scope? (See Pen. Code, § 188 [defining malice aforethought in its express form as an intent to kill that is “deliberate,” i.e., not arising upon provocation; similarly defining malice aforethought in its implied form, in pertinent part, as a mental state not arising upon provocation].) Is manslaughter an unlawful killing without malice aforethought in the sense of one without any mental state? Or is it an unlawful killing with some mental state? If so, what mental state? How, if at all, is it related to malice aforethought? The answers to such questions will allow us to rationalize the law in this area. We shall no longer be compelled to treat voluntary manslaughter as a “lesser included offense” of murder (see cone. opn. of Brown, J., ante, at p. 67), even though, as commonly understood, it is a “lesser including offense” (People v. Breverman, supra, 19 Cal.4th at p. 189, fn. 4, italics in original (dis. opn. of Kennard, J.); accord, id. at p. 183 (dis. opn. of Mosk, J.)). Neither shall we any longer be compelled to speak of murder’s unlawñú-tíñmg-with-malice-aforethought and voluntary manslaughter’s unlav/ful-kiUing-without-malice-aforethought as we must under the common understanding (see dis. opn. of Kennard, J., post, at pp. 80-81)—-the former entailing both the presence of malice aforethought itself and the absence of provocation, the latter entailing either the absence of malice aforethought itself or the presence of provocation. For all this, however, we must await another day.
The plurality say that “[i]t is unnecessary to resolve in this case” the issue whether provocation is an element of voluntary manslaughter. (Plur. opn., ante, at p. 52, fn. 2.) True. The question has already been answered—in the affirmative. (E.g., People v. Jackson, supra, 28 Cal.3d at p. 305 (plur. opn.); People v. Rhinehart, supra, 9 Cal.3d at p. 154; People v. Williams, supra, 71 Cal.2d at p. 624; People v. Morse, supra, 70 Cal.2d at p. 734; 1 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against the Person, § 512, p. 579.) The plurality similarly say that it is unnecessary to resolve in this case the issue whether the element of provocation was supported by sufficient evidence. Not true. This question must be answered—in the negative. The plurality all but concede the point.
Because of the result that I reach, I need not, and do not, proceed to determine whether the superior court erred reversibly when it instructed on involuntary manslaughter only as a result of criminal negligence and not also in the course of a misdemeanor. In concluding against reversal, the plurality claim, in substance, that the superior court’s instructions did not exclude involuntary manslaughter in the course of a misdemeanor as a matter of law. Perhaps so. But they simply did not include it as a matter of fact. Indeed, to the jury, made up as it was of laypersons, they must likely have suggested the opposite. For, by stating that involuntary manslaughter covers an unlawful killing as a result of criminal negligence in the form of the commission, “without due caution and circumspection,” of an “ordinarily lawful" act that “involves a high degree of risk of death or great bodily harm” (italics added), they implied that some even, more serious offense covers an unlawful killing in the course of a misdemeanor, which, by definition, is never a lawful act, “ordinarily” or otherwise.