Is provocation sufficient to reduce the murder from first degree to second degree?

California, United States of America


The following excerpt is from People v. Hernandez, F071911 (Cal. App. 2017):

Additionally, the fact that the court instructed the jury on the effect of provocation in reducing murder from first degree to second degree provides support that there was substantial evidence as to the similar heat of passion provocation instruction. (People v. Castillo (1969) 70 Cal.2d 264, 270 [the trial court's decision to give certain instructions establishes a strong presumption the evidence supports such instructions]; People v. Middleton (1997) 52 Cal.App.4th 19, 33.) The trial court found sufficient evidence to support instruction that provocation could negate premeditation and deliberation creates an inference that there was sufficient provocation to support instruction on heat of passion voluntary manslaughter. It is possible that the court found the evidence of provocation sufficient to support instruction on reducing the murder from first degree to second degree, but not from murder to voluntary manslaughter. To the extent that the trial court was trying to make such a fine distinction, the lack of discussion on the record hinders this court's ability to review the determination.

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