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Name: People v. Ocegueda (2023) 92 Cal.App.5th 548
Case #: G061077
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/14/2023

CALCRIM Nos. 521, 522, and 570, taken together, adequately state the law as to how provocation can reduce first degree murder to second degree murder, and reduce murder to voluntary manslaughter. Appellant and the victim agreed to fight. When the victim’s friend intervened, appellant got angry and left to get two knives. He found the victim and slashed him across the chest. After the victim escaped, appellant continued to follow him, then stabbed the victim twice, resulting in the victim’s death. A jury convicted appellant of first degree murder. He appealed, arguing that the trial court misinstructed the jury on the theory of provocation as it related to the premeditation and deliberation. Held: Affirmed. The trial court gave standard jury instructions, including CALCRIM Nos. 521, 522, and 570. CALCRIM No. 521 contains the elements of first degree murder and explains that a decision to kill was not deliberate and premeditated if it was made “rashly, impulsively, or without careful consideration,” making no mention of an objective standard. CALCRIM No. 522 instructs that provocation may reduce murder from first degree to second degree and may further reduce a murder to manslaughter. Finally, CALCRIM No. 570 instructs that to reduce murder to voluntary manslaughter, the provocation must meet an objective test. CALCRIM Nos. 521 and 522, taken together, informed jurors that provocation can give rise to a rash, impulsive decision, which in turn subjectively shows no premeditation and deliberation. A reduction of murder to voluntary manslaughter requires more, as stated in CALCRIM No. 570. It is here, and only here, that the jury is instructed that the provocation must be sufficient to cause a person of average disposition in the same situation, knowing the same facts, to have reacted from passion rather than judgment. The court rejected appellant’s argument that the instructions together might have misled the jury to believe that to reduce murder from first to second degree, provocation must meet the same objective test that leads to a reduction to voluntary manslaughter. Having adequately instructed the jury on the law, the court was not required to add any clarifying instructions absent a request. Additionally, appellant’s counsel did not render ineffective assistance by failing to request an additional instruction on provocation. [Editor’s Note: The court of appeal also concluded the evidence was sufficient to support the jury’s finding of premeditation and deliberation, applying the three Anderson factors.]