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Name: People v. Nunez (2023) 97 Cal.App.5th 362
Case #: G061346
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/20/2023

Provocation to reduce first degree murder to second degree murder must come from the victim, not a third party. After hearing a rumor that the victim had raped a child, and being encouraged to exact revenge, defendants Gallegos and Nunez chased and beat the victim with metal pipes, and Gallegos stabbed him with a knife six times. In response to a jury question, the trial court instructed that in order for provocation to reduce first degree murder to second degree murder, the provocation must come from the victim, not a third party. Gallegos was convicted of first degree murder and related enhancements, and appealed. Held: Affirmed. First degree murder is an unlawful killing with malice aforethought, premeditation, and deliberation. Provocation may preclude a defendant from subjectively premeditating and deliberating and, as a result, may reduce a murder from first degree to second degree. Defendant argued that unlike objective provocation by a victim, which negates malice, subjective provocation that negates premeditation and deliberation can originate from anywhere or anyone, not just from the victim. The court disagreed. It is well settled that to reduce second degree murder to manslaughter, provocation must be caused by the victim, not a third party. Although these cases deal with negating the element of malice to reduce murder to manslaughter, there is no reason why a different rule should apply in the context of negating premeditation and deliberation to reduce first degree murder to second degree. The concepts of deliberation and premeditation focus on the victim, and the perpetrator must premeditate the killing of a particular victim in a deliberate manner. Thus, to mitigate those elements, it must be the victim, not a third party, who instigates the provocation. As a matter of first impression, the trial court’s instruction was correct. In any event, any error was harmless because the evidence of premeditation and deliberation was overwhelming.

As to defendant Nunez, remand is required for a new Romero hearing. Nunez was convicted of assault with a deadly weapon, with prior strikes found true. In considering Nunez’s Romero motion, the trial court stated that a sentence “close to 20 [years] would have been perfect,” but lamented that it could not get there because the maximum determinate sentence was only 14 years (the low term doubled). Thus, the trial court denied the Romero motion and sentenced Nunez to 25 years to life under the Three Strikes law. The Court of Appeal agreed with Nunez that the trial court misunderstood the scope of its sentencing discretion, as the court could have imposed the middle or upper term rather than the low term. Because it is not clear how the trial court would have ruled on Nunez’s Romero motion if it had been aware of the scope of its sentencing discretion, remand is required. [Editor’s Note: The court further concluded the trial court did not abuse its discretion in denying defendant Gallegos’ Romero motion, even though the strike at issue was 31 years old.]