Return to CALJIC Part 5-8 – Contents
F 8.73 n1 Heat Of Passion May Negate Lying In Wait (PC 187).
In People v. Ceja (93) 4 C4th 1134, 1142 [17 CR2d 375], the Court of Appeal had held that the evidence of lying in wait was insufficient because it was “more suggestive that the killing was a product of appellant’s ‘hot anger of the moment and was executed without reflection’ rather than the result of any plan, secrecy or concealment.” (Id. at 1142.) The California Supreme Court, while disagreeing with the Court of Appeal’s conclusion that the evidence was insufficient, did not dispute the Court of Appeal’s suggestion that “hot anger of the moment” may negate the mens rea for lying in wait. Rather, the Supreme Court concluded that the Court of Appeal stated only one possible interpretation of the evidence. (Ibid.) Hence, the common sense notion that heat of passion or “hot anger” may negate the mens rea of lying in wait — which must be “equivalent to premeditation or deliberation” (CJ 8.25) — may provide a basis for a pinpoint instruction upon such a theory. (See CJ 8.73; FORECITE PG III(A).)
F 8.73 n2 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 (97) 14 C4th 668, 778 [60 CR2d 1], with People v. Johnson (93) 6 C4th 1, 43 [23 CR2d 593], and People v. Perez (92) 2 C4th 1117, 1129; see also People v. Steele (2002) 27 C4th 1230, 1251 [120 CR2d 432] [recognizing but not resolving conflict].) In People v. Wickersham (82) 32 C3d 307, 328-29 [185 CR 436], the court indicated that CJ 8.73 should be given sua sponte. (But see People v. Lee (94) 28 CA4th 1724, 1732-34 [34 CR2d 723] [no sua sponte duty to give CJ 8.73].)
In People v. Neasman REV GTD (3/9/93) 13 CA4th 1779 [17 CR2d 452] reprinted for tracking pending review at 34 CA4th 288, 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 (91) 54 C3d 1103, 1120 [2 CR 364], CJ 8.73 should be requested.
People v. Middleton (97) 52 CA4th 19, 32 [60 CR2d 336] 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 (97) 14 C4th 668, 778 [60 CR2d 1].)
[Briefing arguing that this instruction must be given sua sponte and/or that counsel was ineffective for failure to request the instruction is available to FORECITE subscribers. Ask for Brief Bank # B-655 a/b/c.]
F 8.73 n3 Provocation And Degree Of Murder: “Requiring” Consideration (PC 187).
People v. Fitzpatrick (92) 2 CA4th 1285, 1293-95 [3 CR2d 808]: 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.
F 8.73 n4 Hallucination: To Negate Premeditation.
(See People v. Padilla (2002) 103 CA4th 675 [126 CR2d 889].)
Determining Degree of Murder:
Relationship Of Provocation To Burden Of Proof
*Add the following to CJ 8.73:
If you have a reasonable doubt that the killing was first degree murder, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of first degree murder. Evidence of provocation may, by itself, raise a reasonable doubt in your mind that the killing was first degree murder.
Points and Authorities
Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).) Also, because the prosecution has the burden to prove the charge beyond a reasonable doubt, it is a given that any evidence which leaves the jury with a reasonable doubt as to any element of the charge requires acquittal. (See, e.g., CJ 2.40.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
PRACTICE NOTE: As to the reasonable doubt language, counsel should consider whether or not to ask for the last sentence which includes the “by itself” language from CJ 2.40. The first sentence alone (“give the defendant the benefit of any reasonable doubt”) may be more acceptable to some judges as it is analogous to language in several standard CALJIC instructions. (E.g, CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15.)
Evidence Of Honest Duress May Be Considered
In Determining Degree of Murder
*When appropriate, modify CJ 8.73 to provide:
See FORECITE 4.40c.
Modification When Crime Involves Fetal Victim
*Modify CJ 8.73 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
Provocation May Negate Premeditation
And Deliberation As To Attempted Murder
*Modify CJ 8.73 as follows [added language is capitalized; deleted language is between << >>:]
If the evidence establishes that there was provocation which played a part in inducing an unlawful ATTEMPTED killing of a human being, but the provocation was not sufficient to reduce the ATTEMPTEDhomicide to ATTEMPTED manslaughter, you should consider the provocation for the bearing it may have on whether the defendant <<killed>> ATTEMPTED TO KILL with or without deliberation and premeditation.
Points and Authorities
Provocation and heat of passion should be equally applicable to attempted as well as completed homicide. (See e.g., People v. Tucciarone (82) 137 CA3d 701, 705 [187 CR 159] [defendant charged with attempted murder may be convicted of attempted voluntary manslaughter where there is evidence of an attempt to kill but not malice aforethought]; People v. Von Ronk (85) 171 CA3d 818, 824-825 [217 CR 581] [defendant may be convicted of attempted voluntary manslaughter]. Hence, the principle set forth in CJ 8.73 should be equally applicable to attempted murder.
Heat Of Passion To Negate Mental State
Required For Torture
*Add to CJ 8.73 [added language is capitalized and underlined; deleted language is between << >> and lined out]:
If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with <<or without deliberation and premeditation>> A WILLFUL, DELIBERATED, AND PREMEDITATED INTENT TO INFLICT EXTREME AND PROLONGED PAIN UPON A LIVING HUMAN BEIND FOR THE PURPOSE OF REVENGE, EXTORTION, PERSUASION OR FOR ANY SADISTIC PURPOSE.
Points and Authorities
Torture requires a “cold-blooded, calculated intent to inflict . . . pain for personal gain or satisfaction.” (People v. Raley (92) 2 C4th 870, 899; see also People v. Cole (2004) 33 C4th 1158, 1194; People v. Wiley (76) 18 C3d 162, 168-69.) Hence, provocation and/or heat of passion – even if insufficient to negate malice – may negate the mental state required for torture. (See Cole, 33 C4th 1211-12 [recognizing that jury may properly consider provocation “in connection with murder by torture”]; see also CJ 8.73.)