Thomas

In May 2012, this court decided that defendant Jamie Thomas was properly convicted of second degree murder. In reaching our conclusion, we rejected Thomas’s claims that the prosecution excluded potential jurors on the basis of their race and that the court erred when it admitted certain evidence of rap lyrics authored by Thomas into evidence. We also held that the trial court’s refusal to instruct the jury on provocation that could have reduced this murder to voluntary manslaughter was harmless error.

In deciding the instructional error was harmless, we applied the standard for review articulated by our Supreme Court in People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ], as applied to a failure to instruct on provocation in People v. Breverman (1998) 19 Cal.4th 142, 177-178 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ] and People v. Moye (2009) 47 Cal.4th 537, 556 [ 98 Cal.Rptr.3d 113 , 213 P.3d 652 ], That is, we reviewed the record to determine whether it was reasonably probable that Thomas would have been convicted of manslaughter had the error not occurred. We concluded it was not.

But the application of the Watson harmless error standard in this case was subject…