Can a jury be instructed that provocation inadequate to reduce a killing from murder to manslaughter?

A jury may be instructed that provocation inadequate to reduce a killing from murder to manslaughter nonetheless may suffice to negate premeditation and deliberation, thereby reducing the crime to second degree murder. (People v. Rogers (2006) 39 Cal.4th 826, 877-78.) This is a pinpoint instruction which must be requested by counsel; it need not be given on the court's motion. (Id. at p. 878.) Recognizing this, defendant argues his trial counsel rendered ineffective assistance by not requesting the instruction.⁶

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" 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.' " (People v. Carter (2005) 36 Cal.4th 1114, 1189.) We presume "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." (Ibid.)