Trial court’s response to jury question regarding proof of provocation to reduce premeditated attempted murder to voluntary manslaughter was error, but harmless. Franklin was convicted of premeditated attempted murder and other offenses. Gun use enhancements were found true. The charges arose after a confrontation between several men erupted in gunfire. During deliberations, the jury sought clarification regarding how attempted murder might be reduced to attempted voluntary manslaughter based on heat of passion (CALCRIM No. 603). The trial court instructed that to find voluntary manslaughter, the prosecution must prove heat of passion. This is not the law, as heat of passion is not an element of voluntary manslaughter. Instead, the prosecution must prove its absence in order to secure an attempted murder conviction. On appeal, Franklin argued this error led the jury to give insufficient consideration to evidence of provocation. Held: Affirmed in part and remanded. An attempted killing may be reduced from attempted murder to attempted voluntary manslaughter based on heat of passion when: (1) defendant takes a direct but ineffectual step towards killing a person; (2) he intended to kill; (3) because he was provoked; (4) which provocation would have caused a person of average disposition to act from passion rather than judgment; and (5) the act was done under the influence of intense emotion that obscured defendant’s judgment (CALCRIM No. 603). To obtain a conviction for attempted murder, the prosecution must prove the absence of heat of passion. However, the trial court’s erroneous response to the jury’s question was harmless beyond a reasonable doubt because the jury found that Franklin’s act was premeditated, which is inconsistent with having acted under the heat of passion and ifies any potential for prejudice. [Editor’s Note: In an unpublished portion of the opinion, the case was remanded to allow the trial court to consider whether to strike the gun use enhancements, based on the January 1, 2018, amendments to Penal Code section 12022.53, subdivision (c) and section 12022.5, subdivision (a)].

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D071453M.PDF