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Name: People v. Le
Case #: H030808
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/27/2007

Words can legally constitute provocation to reduce homicide to manslaughter and do not necessarily need to be the words of the victim himself. Appellant’s wife carried on an ongoing affair with the victim. For at least a year, appellant attempted to forgive his wife and her lover, even though the affair continued. On the date of the offense, when appellant told his wife he was going to meet with the victim, she protested and they exchanged words, and she insulted him with the suggestion he have oral sex with her lover. Appellant became enraged, purchased two knives, and arranged for the victim to come to a location, ostensibly for a business reason. When the victim arrived, appellant hacked him to death. The court instructed the jury with CALCRIM 917 that words will not justify an assault and the prosecutor stressed this in argument. Citing People v. Valentine (1946) 28 Cal.2d 121, the appellate court found that this was error as words of abuse or insult may incite the heat of passion specified in Penal Code section 192 (voluntary manslaughter). Although the words were not those of the victim, appellant’s reasonable belief that the victim was involved in the affair, made the victim a party to the provocation. The error was not harmless as the instruction deprived appellant of his defense and the jury, as evidenced by its questions, was obviously confused and but for the instruction it is probable the verdict would have been more favorable.