New January 2006

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, 3 1–33 [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

269.

CALCRIM No. 522. Provocation: Effect on Degree of Murder Page 269
CALCRIM No. 522. Provocation: Effect on Degree of Murder Page 270

(Pub 1284)

Copyright 2008 Judicial Council of California. 

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