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Name: People v. Wright
Case #: A139881
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 12/15/2015

In murder case, trial court erred in refusing to instruct on provocation and heat of passion based on long course of provocatory conduct, but the error was harmless. Following years of discord and custody battles involving their son, Wright went to her ex-boyfriend Green’s house, waited for him to return home, and shot him to death. In her first trial, the jury hung on the murder count, but convicted Wright of shooting at an occupied vehicle. In her second trial, Wright was convicted of first degree murder with a special circumstance finding of lying in wait and a gun use enhancement. On appeal, she claimed the trial court erred in refusing to instruct on imperfect self-defense and provocation, heat of passion to reduce the degree of murder and as a theory of voluntary manslaughter. Held: Affirmed. Voluntary manslaughter is an unlawful killing “upon a sudden quarrel or heat of passion.” The malice required for murder is implied “when no considerable provocation appears.” Both subjectively felt heat of passion and objectively reasonable provocation are required to negate malice, whether the heat of passion is created by a sudden quarrel or a series of provocative acts that occur over a period of time. The question is whether the average person’s judgment and reason is obscured. Wright’s heat of passion/provocation theory was not based on sudden quarrel, but on a provocatory course of conduct on Green’s part relating to their son. The evidence regarding their acrimonious relationship was sufficient to merit instructions on provocation/heat of passion. However, the evidence that Wright acted in the heat of passion was relatively weak compared to the evidence of premeditation. The jury was instructed that a rash decision to kill was not premeditated. It found the lying in wait special circumstance true after being instructed it is the functional equivalent of deliberation. Although the first jury was instructed on provocation/heat of passion and was unable to reach a verdict, its questions indicated concerns about malice and intoxication/mental illness, not provocation/heat of passion. The error was harmless.