Landmark California Cases on Provocation Law

"Manslaughter, an unlawful killing without malice, is a lesser included offense of murder. " (People v. Koontz (2002) 27 Cal.4th 1041, 1086 (Koontz); 192.) " ' "A defendant who intentionally and unlawfully kills lacks malice . . . when he acts in a 'sudden quarrel or heat of passion' ( 192, subd. (a)) . . . ." . . . Heat of passion . . . reduces an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide . . . .' " (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye); People v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi).) " 'The factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation . . . caused by the victim . . . .' " (People v. Avila (2009) 46 Cal.4th 680, 705 (Avila).) "The heat of passion requirement . . . has both an objective and a subjective component. " (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253 (Steele).) "The defendant must actually, subjectively, kill" (id. at p. 1253) "while under 'the actual influence of a strong passion' induced by . . . provocation . . ." (Moye, supra, 47 Cal.4th at p. 550). The provocation must be objectively sufficient in that it would naturally arouse a passion " 'in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' " (Steele, at pp. 1252-1253; Moye, at p. 549.) Thus, " 'heat of passion arises when "at the time of the killing, the defendant's reason was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' " (Moye, at p. 550.) In determining whether objectively sufficient provocation exists, the question is whether a defendant's resulting mental state, not his conduct, was reasonable in light of the provocation. A "reasonable person" does not kill, regardless of provocation, and a culpable homicide is definitionally not "reasonable." The test of adequate provocation is whether " 'an average, sober person would be so inflamed that he or she would lose reason and judgment.' " (People v. Johnston (2003) 113 Cal.App.4th 1299, 1311-1312 (Johnston).) "The focus is on the provocation--the surrounding circumstances--and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (People v. Najera (2006) 138 Cal.App.4th 212, 223 (Najera).) In Najera, the defense contended that the prosecutor committed misconduct and misstated the law by arguing that heat of passion is determined by asking " 'Would a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody?' " (Ibid.) He said " 'the reasonable, prudent person standard . . . is based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that's not a reasonable person standard.' " (Ibid.) The court concluded the prosecutor, by focusing on the reasonableness of the defendant's conduct in response to the provocation, had incorrectly stated the law. (Id. at p. 224.) In Najera, the jury was instructed using CALJIC No. 8.42, which is substantially similar to CALCRIM No. 570. (Najera, supra, 138 Cal.App.4th at pp. 224, 226.) The court found the prosecutor's statements to be misconduct, but harmless error, since the alleged provocations (calling Najera a "jota" or "faggot") were not sufficient to entitle the defendant to a voluntary manslaughter instruction in the first instance. (Id. at p. 226 & fn. 2.) For the same reason, the court found it unnecessary to decide if the trial court's response to a jury inquiry regarding the "reasonable person" standard set forth in CALJIC No. 8.42 was sufficient. (Id. at p. 226.)