SERIES 500 HOMICIDE
F 522 PROVOCATION: EFFECT ON DEGREE OF MURDER
TABLE OF CONTENTS F 522.1 TITLES AND IDENTIFICATION OF PARTIES
F 522.1 Inst 1 Provocation: Effect On Degree Of Murder—Title
F 522.1 Inst 2 Identification Of Prosecution And Defendant
F 522.2 PROVOCATION: EFFECT ON DEGREE OF MURDER— TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 522.2 Inst 1 Determining Degree of Murder: Relationship Of Provocation To Burden Of Proof (PC 187)
F 552.2 Inst 2 (a & b) Jury Should Consider Duress On The Issue Of Premeditation And Deliberation
F 522.2 Inst 3 (a & b) Provocation May Negate Premeditation And Deliberation As To Attempted Murder
F 522.2 Inst 4 Modification Of Burden Shifting Language
F 522.2 Inst 5 Modification Of Language Implying That The Jury Must “Conclude” The Defendant Was Provoked
F 522.2 Inst 6 Right To Instruction Which Expressly States That Provocation/Heat Of Passion May Negate Premeditation/Deliberation
Return to Series 500 Table of Contents.
F 522.1 Titles And Identification Of Parties
F 522.1 Inst 1 Provocation: Effect On Degree Of Murder—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 522.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 522.2 Provocation: Effect On Degree Of Murder—Tailoring To Facts: Persons, Places, Things And Theories
F 522.2 Inst 1 Determining Degree of Murder: Relationship Of Provocation To Burden Of Proof (PC 187)
*Add the following to CC 522:
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, leave you with a reasonable doubt in your mind that the killing was first degree murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Pinpoint Instruction Re: Provocation And First Degree Murder—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].
Right To Instruction Relating Defense Theory To Burden Of Proof—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 (1995) 9 C4th 493, 500-01 [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 (1982) 135 CA3d 335, 342; see e.g., CC 505, CC 510, CC 626; see also FORECITE PG III(D) & PG III(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., CC 350.)
(See also FORECITE F 315.1.2 Inst 2.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 8.73a.
F 522.2 Inst 2 (a & b) Jury Should Consider Duress On The Issue Of Premeditation And Deliberation
*Add to CC 552:
Alternative a:
If the evidence establishes that there were threats and menaces, as defined elsewhere in these instructions, which played a part in inducing the defendant’s involvement in the killing, that fact cannot absolve the defendant of liability for murder. You should,* however, consider the threats and menaces for the bearing they may have on the question of whether the defendant acted with or without “deliberation” and “premeditation,” as those terms are defined elsewhere in these instructions.
Alternative b:
[You should]* [Consider] evidence showing the existence of threats, menaces or compulsion that played a part in inducing the unlawful killing of a human being for such bearing as it may have on the question of whether the murder was of the first or second degree.
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 threats, menaces or compulsion may, by itself, leave you with a reasonable doubt in your mind that the killing was first degree murder.
*But see FORECITE F 4.21e.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—People v. Anderson (2002) 28 C4th 767, 784 [it is for the jury to decide whether a killing committed under duress was premeditated under the circumstances]; 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]; see also CJ 8.73; LaFave and Scott, Crim. Law (1st Ed. 1972) §49, p. 379 [duress may eliminate the ability to deliberate or premeditate].
Use Of The Term “Defendant”– The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
PRACTICE NOTE: As to the reasonable doubt language in the last paragraph of Sample Instruction # 2, 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.)
CALJIC NOTE: See FORECITE F 4.40c
F 522.2 Inst 3 (a & b) Provocation May Negate Premeditation And Deliberation As To Attempted Murder
*Replace CC 522 with the following:
Alternative a:
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 attempted homicide to attempted manslaughter, you should consider the provocation for the bearing it may have on whether the defendant attempted to kill with or without deliberation and premeditation.
Alternative b:
*Modify CC 522 by changing “murder” to “attempted murder.”
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Provocation Should Apply To Attempted Murder—Provocation and heat of passion should be equally applicable to attempted as well as completed homicide. (See e.g., People v. Tucciarone (1982) 137 CA3d 701, 705 [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 (1985) 171 CA3d 818, 824-825 [defendant may be convicted of attempted voluntary manslaughter]. Hence, the principle set forth in CJ 8.73 should be equally applicable to attempted murder. (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].)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 8.73d.
F 522.2 Inst 4 Modification Of Burden Shifting Language
*Replace CC 522, paragraph 1, sentence 1, with the following:
<First vs. Second Degree Murder:>
Provocation is a factor to consider in deciding, if you can, whether the prosecution has proven that the defendant __________________ <insert mental state, e.g, premeditated and deliberated> which is an essential element of first degree murder based on _______________ <insert type of first degree murder, e.g., premeditation and deliberation, torture, etc.>. Because provocation may [be inconsistent with] [have prevented the defendant from forming] _________________ <insert, e.g., premeditation and deliberation>, it may be the basis for a verdict of second rather than first degree murder.
<Murder vs. Manslaughter:>
The absence of heat of passion and provocation, as I (have/will) [previously] [instruct[ed]] you is an essential element of murder which the prosecution must prove beyond a reasonable doubt. If the prosecution has failed to meet this burden, the defendant is not guilty of murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Defense Has No Obligation To Prove A Defense Which Negates An Element—Use of the term “reduce” in CALCRIM 522 improperly implies a defense obligation to reduce first degree murder to second degree. (See FORECITE F 404.2 Inst 1; F 315.1.2 Inst 2; F 100.1 Inst 1.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 522.2 Inst 5 Modification Of Language Implying That The Jury Must “Conclude” The Defendant Was Provoked
*Modify CC 522, paragraph 2, sentence 1, as follows [deleted language is stricken]:
If you conclude that the defendant committed murder, but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.
Points and Authorities
CALCRIM 522 improperly states that the jurors may only consider provocation if they “conclude” that the “defendant … was provoked.” (See F 404.2 Inst 1.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
F 522.2 Inst 6 Right To Instruction Which Expressly States That Provocation/Heat Of Passion May Negate Premeditation/Deliberation
Alternative a:
*Modify CC 522 as follows [added language is underlined]:
Provocation may reduce a murder from first-degree to second-degree by negating premeditation and/or deliberation [and may reduce a murder to manslaughter] by negating malice.
Alternative b:
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 [attempted] homicide to [attempted] manslaughter, consider the provocation for the bearing it may have on whether the defendant killed [attempted to kill] with deliberation and premeditation.
Alternative c:
Provocation is a factor to consider in deciding, if you can, whether the prosecution has proved that the defendant __________________ <insert mental state, e.g., premeditated and deliberated> which is an essential element of first degree murder based on _______________ <insert type of first degree murder, e.g., premeditation and deliberation, torture, etc.>. Because provocation may be inconsistent with] [have prevented the defendant from forming] _________________ <insert, e.g., premeditation and deliberation>, it may be the basis for a verdict of second degree rather than first degree murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – People v. Hernandez (2010) 183 CA4th 1327, 1334 concluded that the failure of CC 522 to expressly state that provocation can negate premeditation and deliberation (compare CJ 8.73) was not prejudicial error because CC 521 and CC 522 were given together. However, the defense should not have to rely on the juror’s reference to another instruction to explain the defense theory. “Each party has an absolute right to instruction based on its own theory of the case if there is any evidence to support it. [Citations.]” (Maxwell v. Powers (1994) 22 CA4th 1596, 1607; see also Logacz v. Brea Community Hospital, et al. (1999) 71 CA4th 1149.)
“A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (1994) 8 C4th 548, 572.)
Identification Of Parties – See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
