Criminal Law

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522. Provocation: Effect on Degree of Murder

Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide.

If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]

[Provocation does not apply to a prosecution under a theory of felony murder.]

Bench Notes

Instructional Duty

Provocation may reduce murder from first to second degree. (People v. Thomas (1945) 25 Cal.2d 880, 903 [156 P.2d 7] [provocation raised reasonable doubt about premeditation or deliberation, "leaving the homicide as murder of the second degree; i.e., an unlawful killing perpetrated with malice aforethought but without premeditation and deliberation"]; see also People v. Cole (2004) 33 Cal.4th 1158, 1211-1212 [17 Cal.Rptr.3d 532, 95 P.3d 811] [court adequately instructed on relevance of provocation to whether defendant acted with intent to torture for torture murder].) There is, however, no sua sponte duty to instruct the jury on this issue. (People v. Middleton (1997) 52 Cal.App.4th 19, 31-33 [60 Cal.Rptr.2d 366], disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752 [3 Cal.Rptr.3d 676, 74 P.3d 771].) This is a pinpoint instruction, to be given on request.

This instruction may be given after CALCRIM No. 521, Murder: Degrees.

If the court will be instructing on voluntary manslaughter, give both bracketed portions on manslaughter.

If the court will be instructing on felony murder, give the bracketed sentence stating that provocation does not apply to felony murder.

Authority

Provocation Reduces From First to Second Degree. People v. Thomas (1945) 25 Cal.2d 880, 903 [156 P.2d 7]; see also People v. Cole (2004) 33 Cal.4th 1158, 1211-1212 [17 Cal.Rptr.3d 532, 95 P.3d 811].

Pinpoint Instruction. People v. Middleton (1997) 52 Cal.App.4th 19, 31-33 [60 Cal.Rptr.2d 366], disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752 [3 Cal.Rptr.3d 676, 74 P.3d 771].

Secondary Sources

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.16 (Matthew Bender).

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.01, 142.02 (Matthew Bender).

(New January 2006)