In People v. Briscoe (2001) 92 Cal.App.4th 568, the jury sought clarification from the trial court about whether a robbery at gunpoint constituted a provocative act in and of itself. The prosecutor argued that the jury should be told that robbery at gunpoint did constitute a provocative act in and of itself. Defense counsel argued that the jury's question was one of law to be answered in the negative, because the provocative act must be an act beyond the robbery itself. The trial court viewed the jury's inquiry as a factual question turning on the circumstances of each case. It noted that the underlying offense was robbery, not robbery at gunpoint. The trial court reasoned that if robbery could be committed without a gun, then the use of a gun might constitute the provocative act beyond that required to commit the underlying robbery in an appropriate case. Ultimately, the trial court told the jury that this was a factual determination for it to make and suggested that it review the instructions defining a provocative act. (Briscoe, supra, 92 Cal.App.4th at p. 588.) On appeal, the defendant argued the court abdicated its statutory duty under section 1138, the jury's question raised a simple point of law, the court should have instructed the jury that robbery at gunpoint was not a provocative act, and its actual response confused the jury. (Id. at pp. 588-589.) Briscoe held the trial court "was prudent to respond to the jury's inquiry as it did" because the question did not involve a simple matter of law, but was instead properly characterized as a question of fact, and resolution of the inquiry turned upon the particular facts of the case. (Briscoe, supra, 92 Cal.App.4th at p. 589.)