California, United States of America
The following excerpt is from People v. Wickersham, 185 Cal.Rptr. 436, 32 Cal.3d 307, 650 P.2d 311 (Cal. 1982):
Appellant further argues that instructions on second degree murder should have been given. "[T]he existence of provocation which is not 'adequate' to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation." (People v. Valentine, supra, 28 Cal.2d at p. 132, 169 P.2d 1; see also CALJIC No. 8.73 (1979 rev.).) Thus, where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately, the trial court is required to give instructions on second degree murder under this theory. The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance.
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