People v. Moore CA4/1

DISCUSSION

Moore first argues that although not requested by trial counsel, the court had a sua sponte duty to give an instruction set forth in CALCRIM

3 5222 relating to the effect of provocation on the jury’s consideration of first degree murder because subjective provocation was a defense theory of the commission of the crime that was supported by the evidence. (See People v. Breverman (1998) 19 Cal.4th 142, 148–149.) Moore argues that the note sent by the jury during deliberation shows that the jury was not unanimous in its theory of first degree murder and that at least one juror relied on a malice murder theory, and therefore “there was a reasonable likelihood that a juror – or jurors – would have found appellant guilty of only second degree murder based on subjective provocation.” Moore concedes that the court held in People v. Rogers (2006) 39 Cal.4th 826, 880 (Rogers), that CALJIC 8.73, the predecessor instruction to CALCRIM 522, was a pinpoint instruction, to be given upon request, and the court did not have a sua sponte duty to give the instruction. Moore distinguishes Rogers by noting that in Rogers, the jury had not been instructed that provocation had to be…