California Criminal Jury Instructions (CALCRIM) (2017)

522. Provocation: Effect on Degree of Murder

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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.]
New January 2006; Revised April 2011, March 2017
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. Rogers (2006) 39 Cal.4th 826, 877–880 [48 Cal.Rptr.3d 1, 141
P.3d 135].) This is a pinpoint instruction, to be given on request.
This instruction may be given after CALCRIM No. 521, First Degree Murder.
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. Rogers (2006) 39 Cal.4th 826, 877–878].
• This Instruction Upheld. People v. Hernandez (2010) 183 Cal.App.4th 1327,
1333–1335 [107 Cal.Rptr.3d 915].
Secondary Sources
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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).
HOMICIDE CALCRIM No. 522
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