If there is sufficient evidence of provocation to reduce the murder of a man during a robbery and burglary, is it a second degree murder?

California, United States of America


The following excerpt is from People v. Lemmon, C074689 (Cal. App. 2016):

and burglary. Section 189 provides that all murder committed in the perpetration or attempted perpetration of robbery and burglary is first degree murder. Thus, even if there were sufficient evidence of provocation, it would not reduce the murder to second degree because provocation cannot negate first degree murder in the commission of a robbery or burglary. (See People v. Wright (2015) 242 Cal.App.4th 1461, 1496 [No prejudice in court's refusal to give provocation instruction where jury found true special circumstance of lying in wait.].) Accordingly, any claim of ineffective assistance of counsel fails because defendants cannot show prejudice.

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