What is the test for provocation in the context of voluntary manslaughter?

Second, defendant argues that the jury needed to be told that provocation is assessed according to a subjective standard. However, premeditation and deliberation themselves are subjective states. "The issue is whether the provocation precluded the defendant from deliberating. [Citation.] This requires a determination of the defendant's subjective state." (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.) In other words, provocation is already defined as something that causes the defendant to act without subjectively premeditating and deliberating.

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In the law of homicide, provocation plays two different roles; in addition to negating premeditation and deliberation, it can also give rise to "heat of passion," which reduces murder to voluntary manslaughter. When used for the latter purpose, the provocation must meet an objective test: "The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment." (People v. Lee (1999) 20 Cal.4th 47, 60, italics added.) Because this is a technical legal requirement, it is something that the jury must be instructed on whenever "heat of passion" voluntary manslaughter is at issue. Thus, CALCRIM No. 570 states, in part, that voluntary manslaughter requires "provocation [that] would have caused a person of average disposition to act rashly and without due deliberation . . . ." (Italics added.)