Does a court have to instruct on provocation and first and second degree murder?

California, United States of America


The following excerpt is from People v. Middleton, 52 Cal.App.4th 19, 60 Cal.Rptr.2d 366 (Cal. App. 1997):

The court did instruct on the relationship between voluntary manslaughter and provocation; therefore, defendant maintains, the court must have determined sufficient evidence existed in the record to instruct on provocation and first and second degree murder. (People v. Castillo (1969) 70 Cal.2d 264, 270, 74 Cal.Rptr. 385, 449 P.2d 449 [the trial court's decision to give certain instructions establishes a strong presumption the evidence supports such instructions].) However, the court gave that instruction because defense counsel requested it, and "[t]he fact that [defense counsel] requested a heat of passion instruction for manslaughter does not establish that the evidence would have necessitated a sua sponte instruction." (People v. Perez (1992) 2 Cal.4th 1117, 1130, 9 Cal.Rptr.2d 577, 831 P.2d 1159.)

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