[If you decide that the defendant committed murder, that crime is
murder in the second degree.]
New January 2006; Revised April 2011, February 2013
The court has a sua sponte duty to give this instruction if the provocative act
doctrine is one of the general principles of law relevant to the issues raised by the
evidence. (People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d
370].) If the prosecution relies on a ﬁrst degree murder theory based on a Penal
Code section 189 felony, the court has a sua sponte duty to give instructions
relating to the underlying felony, whether or not it is separately charged.
If the defendant is an accomplice, aider and abettor, or coconspirator of the person
who did the provocative act, give CALCRIM No. 561, Homicide: Provocative Act
by Accomplice, instead of this instruction.
The ﬁrst bracketed sentence of this instruction should only be given if the
underlying felony is separately charged.
In the deﬁnition of “provocative act,” the court should always give the bracketed
phrase that begins, “that goes beyond what is necessary,” unless the court
determines that this element is not required because the underlying felony includes
malice as an element. (In re Aurelio R. (1985) 167 Cal.App.3d 52, 59–60 [212
Cal.Rptr. 868]; see also People v. Briscoe (2001) 92 Cal.App.4th 568, 582 [112
Cal.Rptr.2d 401]; People v. Gonzalez (2010) 190 Cal.App.4th 968 [118 Cal.Rptr.3d
637].) See discussion in the Related Issues section below.
If the evidence suggests that there is more than one provocative act, give the
bracketed paragraph on “multiple provocative acts,” which instructs the jury that
they need not unanimously agree about which provocative act caused the killing.
(People v. Briscoe (2001) 92 Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401].)
If there is evidence that the actual perpetrator may have committed an independent
criminal act, give on request the bracketed paragraph that begins with “A defendant
is not guilty of murder if . . . .” (See People v. Cervantes (2001) 26 Cal.4th 860,
874 [111 Cal.Rptr.2d 148, 29 P.3d 225].)
If the prosecution is not seeking a ﬁrst degree murder conviction, omit those
bracketed paragraphs relating to ﬁrst degree murder and simply give the last
bracketed sentence of the instruction. As an alternative, the court may omit all
instructions relating to the degree and secure a stipulation that if a guilty verdict is
returned, the degree of murder is set at second degree. If the prosecution is seeking
a ﬁrst degree murder conviction, give the bracketed section on “degree of murder.”
If there is a theory of ﬁrst degree murder other than A. Deliberation and
Premeditation, or B. Enumerated Felony, e.g., torture, insert relevant portions of
CALCRIM No. 521. That instruction must be modiﬁed to reﬂect the circumstances
CALCRIM No. 560 HOMICIDE