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Name: People v. Hernandez
Case #: D055331
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/16/2010

CALCRIM No. 522, in conjunction with CALCRIM No. 521, adequately instructs that provocation is relevant to determine if defendant killed without premeditation and deliberation, so as to support a finding of second, rather than first degree murder. Appellant shot and killed the victim. At trial, he testified that he thought he was being approached by gang members and shot out of fear because he did not want the men to come close to him. The jury was instructed with CALCRIM No. 521 which defines first degree murder as requiring deliberation and premeditation and explains that a decision made rashly is not deliberate and premeditated. It was also instructed with CALCRIM No. 522 which provides the theory of provocation and explains that provocation may reduce a murder from first degree to second degree or to manslaughter. Appellant was convicted of first degree murder. The appellate court rejected appellant’s argument that CALCRIM No. 522 was inadequate because it does not specifically inform the jury that provocation is relevant to determine whether defendant killed with premeditation and deliberation. Although it is true that CALCRIM No. 522 does not expressly state that provocation is relevant, when read with CALCRIM No. 521, there is no reasonable likelihood the jury did not understand the concept of provocation.