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Name: People v. Jones
Case #: B242963
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 02/06/2014

Court properly instructed jury that the provocation which may reduce the degree of murder from first to second involves a subjective test. Jones, himself a member of the Grape Street Crips, shot and killed a gang member in retaliation for the death of a friend. On appeal he claimed the provocation instruction given did not sufficiently inform the jury that an objective standard applies only to reduce murder to manslaughter and does not apply to reduce the degree of murder from first to second. Held: Affirmed. A subjective test applies as a basis to reduce the degree of murder—i.e., whether the defendant in fact committed the act because he was provoked. If so, the elements of premeditation and/or deliberation are negated. To reduce a malice murder to manslaughter, an objective test also applies—the provocation must be so great it would cause a person of average disposition to act rashly, that is, from passion rather than judgment. But the pattern instructions (CALCRIM Nos. 520, 521, 522 and 570) are correct statements of the law and would not likely have misled the jurors to conclude that the objective test also applies for provocation to reduce the degree of a murder. Jones’ real argument is that a pinpoint instruction should have been given to tell the jury that the objective test does not apply to provocation as a basis to reduce the degree of the murder. No such instruction was requested, so the issue is forfeited. Further, Jones did not rely on provocation as a defense at trial and there was little evidence of this defense.