When will a jury be instructed on voluntary manslaughter in the heat of passion?

^5. The Attorney General argues that there was insufficient evidence of provocation. The cases on which she relies do not support this proposition. In People v. Gutierrez (2009) 45 Cal.4th 789, the court relied on the fact that the defendant testified to his state of mind. The defendant testified that he was not provoked by the preceding assault in which the victim "scratched his chest, he kicked her, she kicked him in the leg and grabbed his shirt, and he pulled away. Simple assault, such as the tussle defendant described, also does not rise to the level of provocation necessary to support a voluntary manslaughter instruction. [Citation.] Indeed, rather than causing defendant to become enraged, defendant testified that he simply walked away." (Id. at p. 827.)

In People v. Manriquez (2005) 37 Cal.4th 547, the trial court instructed the jury on voluntary manslaughter in the heat of passion with regard to three of four murders with which he was charged but refused the instruction on the fourth murder. As to the fourth, the evidence that most supported the instruction was that "the victim approached defendant and 'started offending him,' called defendant 'a mother fucker,' asking defendant whether he had a gun and daring him to use it. According to [a witness], defendant repeatedly told the victim to calm down and that he did not want any problems. [The witness] testified that she did not see the victim attempt to grab or stab defendant or hold a weapon, nor did she see one fall to the ground. She testified that defendant shot him from a distance of approximately four feet." (Id. at p. 585.) In holding that the trial court did not err in refusing the instruction, the appellate court noted that the witness's "testimony contained no indication that defendant's actions reflected any sign of heat of passion at the time he commenced firing his handgun at the victim. There was no showing that defendant exhibited anger, fury, or rage; thus, there was no evidence that defendant 'actually, subjectively, kill[ed] under the heat of passion.' [Citation.] To the contrary, [the witness's] testimony portrayed defendant as attempting to exert a calming influence on the victim." (Ibid.)