In People v. Hernandez (2010) 183 Cal. App. 4th 1327, the defendant argued that CC 522 failed to specifically state that provocation can negate premeditation and deliberation necessary for first degree murder. The reviewing court acknowledged that CJ 8.73 did specifically state that premeditation and deliberation can be negated by provocation. However, CC 522 stated that provocation “may reduce a murder from first degree to second degree, and CC 521, the general instruction on murder, stated that a decision to kill made rashly, impulsively, or without consideration is not deliberate and premeditated.” (Id. at 1333.) Hernandez concluded that when CC 521 and CC 522 are both given, jurors would adequately understand that “the existence of provocation can support the absence of premeditation and deliberation.” (Id. at 1334.)
The defendant also argued that CC 522, telling the jury that the “weight and significance” of the evidence of provocation was for them to decide, could allow the jury to arbitrarily reject the evidence of provocation. Hernandez found that there was no reasonable likelihood that a jury would interpret the instruction in this manner: the instruction here merely correctly told the jury that it should decide the strength and importance of the evidence of provocation in assessing whether a reasonable doubt existed that the offense was premeditated. (Ibid.)
The defendant in Hernandez also argued that CC 522 was invalid because, unlike CJ 8.73, it did not tell the jury that provocation which is insufficient to reduce murder to manslaughter could be enough to reduce first degree murder to murder in the second degree. Hernandez rejected this claim because CC 522 tells the jury it can consider provocation for both second degree murder and manslaughter, “There is nothing in the instruction that suggests the jury might have failed to fully consider the provocation evidence for second degree murder based on a rejection of the evidence of manslaughter.” (Id. at 1333.) Strategy Note: Notwithstanding Hernandez, counsel should be alert on this issue, and should request a clarification of CC 522 to make it explicit that provocation can preclude premeditation and deliberation.