Does a prosecutor's argument that provocation reduces a murder to voluntary manslaughter constitute misconduct?

Even if we were to conclude that the prosecutor's argument constituted misconduct, it is not reasonably likely that the jury applied the prosecutor's comments in an improper or erroneous manner given the record as a whole. (See People v. Brown (2003) 31 Cal.4th 518, 553.) First, we note that the prosecutor prefaced his remarks with a correct statement on the effect of provocation to reduce murder to voluntary manslaughter: "The provocation would cause a person of average disposition to act rashly and without due deliberation." (See CALCRIM No. 570.) Second, the trial court correctly instructed the jury. The court instructed the jury on voluntary manslaughter based on a killing in the heat of passion (CALCRIM No. 570) and on the effect of provocation on the degree of murder (CALCRIM No. 522).⁵ Finally, in response to inquiries from the jury during deliberations,⁶ the court had yet another opportunity to reiterate its instructions on first degree and second degree murder and to explain the effect of provocation. Hence, the record reflects that the court explained to the jury the manner in which the definition of provocation fit within the instructions, including the following: "Provocation is not an element of either of these [first or second degree murder]. Provocation is a factor that may be considered in deciding whether these elements have been proven. So if we look at, in [CALCRIM No.] 522, provocation may reduce a murder from first 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. In other words, when you are looking at [CALCRIM No.] 521 [first degree murder], deliberate, premeditated, willful intent to kill, you may consider that factor of provocation in deciding whether the People have proven first degree murder under [CALCRIM No.]

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