SERIES 500 HOMICIDE
F 522 NOTES
TABLE OF CONTENTS
F 522 Note 1 Provocation: Effect On Degree of Murder—CALCRIM Cross References And Research Notes
F 522 Note 2 Provocation And Degree Of Murder: Sua Sponte Duty To Instruct (PC 187)
F 522 Note 3 Provocation And Degree Of Murder: “Requiring” Consideration (PC 187)
Return to Series 500 Table of Contents.
F 522 Note 1 Provocation: Effect On Degree of Murder—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 521 [Murder: Degrees]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 522 Note 2 Provocation And Degree Of Murder: Sua Sponte Duty To Instruct (PC 187)
The California Supreme Court has not resolved whether CJ 8.73 must be given sua sponte. (Compare People v. Mayfield (1997) 14 C4th 668, 778, with People v. Johnson (1993) 6 C4th 1, 43, and People v. Perez (1992) 2 C4th 1117, 1129; see also People v. Steele (2002) 27 C4th 1230, 1251 [recognizing but not resolving conflict].) In People v. Wickersham (1982) 32 C3d 307, 328-29, the court indicated that CJ 8.73 should be given sua sponte. (But see People v. Ward (2005) 36 C4th 186, 214 [implying that CJ 8.73 (provocation should be considered as to degree of murder) would be a proper pinpoint instruction if supported by the evidence]; People v. Lee (1994) 28 CA4th 1724, 1732-34 [no sua sponte duty to give CJ 8.73].)
In People v. Neasman DEPUBLISHED (1993) 13 CA4th 1779, the court held that there is no sua sponte duty to give CJ 8.73 when “it does not appear defendant is relying on the evidence of provocation or when it is inconsistent with the defense theory of the case.” In reaching this result, the court concluded that CJ 8.73 is “in the nature of a pinpoint instruction as it relates certain evidence to an element of the offense.” Hence, under the reasoning of People v. Saille (1991) 54 C3d 1103, 1120, CJ 8.73 should be requested.
People v. Middleton (1997) 52 CA4th 19, 32, held that there is no sua sponte duty to instruct as to the effect of provocation on premeditation and deliberation because such an instruction is not a complete defense and, hence, not a general principle of law. Instead, such an instruction is a pinpoint instruction which relates to factual issues regarding the defendant’s subjective state of mind. Accordingly, the instruction does not have to be given sua sponte but should be given upon request. (See also People v. Mayfield (1997) 14 C4th 668, 778.)
CALJIC NOTE: See FORECITE F 8.73 n2.
F 522 Note 3 Provocation And Degree Of Murder: “Requiring“ Consideration (PC 187).
People v. Fitzpatrick (1992) 2 CA4th 1285, 1293-95: No right to instruction requiring consideration of inadequate provocation on the issue of the degree of murder. CJ 8.73 (jury may consider inadequate provocation) is sufficient.
CALJIC NOTE: See FORECITE F 8.73 n3.
