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People v. Rizo4/24/2002
ruct on Voluntary Manslaughter Based on Heat of Passion or Provocation
Murder may be reduced to voluntary manslaughter where the killing was done in the heat of passion, under provocation, or in unreasonable self-defense. (See People v. Rios (2000) 23 Cal.4th 450, 460-461.) The court in this case instructed on unreasonable self-defense, but not on heat of passion or provocation. The blue jury defendants contend the failure to give such an instruction was error.
" he trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.]" (People v. Birks (1998) 19 Cal.4th 108, 118.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
There was not substantial evidence in this case to require a provocation instruction. Provocation sufficient to reduce a murder to manslaughter - i.e., to negate malice -must be caused by the victim, or be conduct reasonably believed by the defendant to have been engaged in by the victim. The conduct by the victim must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. At the time of the killing, the reason of the accused must have been so obscured or disturbed by passion as to cause him or her to act from such passion rather than from judgment. Adequate provocation and heat of passion must be affirmatively demonstrated. (People v. Lee (1999) 20 Cal.4th 47, 59-60.)
There was no substantial evidence that Galvan did anything to Ivan that would cause an ordinary person to act without due deliberation and reflection at the time of the homicide. While in the club, Ivan struck Galvan; there was no evidence Galvan struck Ivan. Even if there were, whatever friction occurred inside the nightclub had abated by the time of the homicide. Outside the club, Galvan was accosted as he tried to leave the scene. There is no evidence he did anything to precipitate a fight.
All of the evidence points to a homicide resulting from a planned confrontation against an unwilling participant, not a rash act in reaction to a sudden provocation. The suggestion that an intervening act of provocation may have occurred at some point during the events that led to the homicide is simply speculation. "`Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense.' [Citation.]" (People v. Sakarias (2000) 22 Cal.4th 596, 620.)
Defendants argue that, since the court gave CALJIC No. 8.73 (Evidence of Provocation May be Considered in Determining Degree of Murder), it necessarily found evidence of provocation and therefore should have instructed on voluntary manslaughter based on a provocation theory. However, CALJIC No. 8.73, by its express terms, applies where provocation played a part in the homicide but "was not sufficient to reduce the homicide to manslaughter . . . ." (Italics added.) In that event, the jury may consider the provocation "for the bearing it may have on whether the defendant killed with or without deliberation and premeditation." Consequently, the fact the court thought CALJIC No. 8.73 was supported by the evidence does not mean an instruction on voluntary manslaughter - which would require provocation sufficient to negate malice, not just deliberation and premeditation - also was supported. Moreover, the fact a court chooses to instruct on provocation does not establish there was enough evidence to require instruction on th
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