Does the trial court err when it did not instruct the jury on a provocation theory of voluntary manslaughter or second degree murder?

California, United States of America


The following excerpt is from People v. Nieves, 2d Crim. No. B268349 (Cal. App. 2017):

Nor did the trial court err when it did not instruct the jury on a provocation theory of voluntary manslaughter or second degree murder. An intentional and unlawful killing that occurs "upon a sudden quarrel or heat of passion" ( 192, subd. (a)) lacks the malice aforethought required for murder and may instead constitute voluntary manslaughter. (People v. Breverman (1998) 19 Cal.4th 142, 153-154.) "'[H]eat of passion'" exists only where the "killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an '"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."'" (Id., at p. 163.) Provocation that is not adequate to reduce an offense to voluntary manslaughter may nevertheless be sufficient to raise a reasonable doubt as to whether the defendant acted with premeditation and deliberation. A murder that is not premeditated is of the second degree. (People v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi).)

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