What is the test for determining whether a person of average disposition would have been provoked to act rashly and without deliberation?

California, United States of America


The following excerpt is from People v. Tostado, F060407 (Cal. App. 2011):

"person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment." He argues, however, that the instruction errs by stating, "It is not enough that the defendant simply was provoked," and by requiring the jury to "consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts." Citing People v. Najera (2006) 138 Cal.App.4th 212, 223, Tostado asserts the question is not how a reasonable person would have reacted to the provocation, but instead whether the acts that provoked the accused would cause a reasonable person to act rashly and without deliberation.

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