Words May Constitute Sufficient Provocation To Reduce Murder To Manslaughter

In a murder prosecution, the trial court instructed the jury pursuant to CALCRIM no. 917 that mere words cannot establish a defense to battery. In addition, the court allowed the prosecutor to argue to the jury that words cannot legally constitute provocation to reduce a homicide to manslaughter.

While it is a correct statement of the law that words cannot establish a defense to battery, words of abuse, insult or reproach may incite the heat of passion specified in the Penal Code section 192 definition of manslaughter, and therefore may constitute sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter.

In light of these principles, the Sixth District Court of Appeal reversed the defendant's second degree murder conviction, concluding that the combination of the instruction given and the prosecutor's argument to the jury improperly "removed consideration of appellant's confrontation with his wife, and her insulting response, from the jury's evaluation of provocation and its impact on appellant's state of mind." Because consideration of these highly relevant factors may have prevented the jury from convicting the defendant only of voluntary manslaughter, the Court of Appeal deemed the errors prejudicial.

The unanimous opinion was authored by Justice Franklin D. Elia.

People v. Le, no. H030808 (Cal.Ct.App. (6th Dist.) filed 12/27/07)