Special Jury Instruction on Voluntary Manslaughter in California

In People v. Johnston (2003) 113 Cal.App.4th 1299, the defendant went to his ex-girlfriend's home and pounded on the door, walls, and windows, demanding to see her. (Johnston, supra, 113 Cal.App.4th at p. 1302.)

Her mother emerged and told defendant to leave but defendant continued to shout obscenities, threatened to kill the entire family, and refused to leave. (Id. at p. 1304.)

He repeatedly challenged the ex-girlfriend's brothers to come out and fight. (Ibid.) Eventually one of her brothers came out, unarmed, and began a physical fight with defendant.

During the fight, defendant took out a knife and repeatedly stabbed the brother, killing him. (Id. at p. 1305.) The court of appeal held that the defendant, having provoked the fight, could not be heard to assert provocation by the victim such that a reasonable person would have been provoked to resort to deadly force. (Id. at pp. 1312-1314.)

The Court held that a defendant cannot claim provocation by the victim to reduce the crime of second degree murder to voluntary manslaughter where the defendant was the one who provoked the fight. (Id. at pp. 1312-1314.)

The Court explained "'If the defendant causes the victim to commit an act which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked. In such case, he is deemed to have acted with malice and would be guilty of murder. Thus, a defendant is guilty of murder when he arms himself and plans to insult the victim and then kill him if the victim strikes him in resentment over the insult.'" (Johnston, supra, 113 Cal.App.4th at p. 1312.)