Action and Reaction: Clarifying 'Heat of Passion' Provocation

By William Peacock, Esq. on June 05, 2013 | Last updated on March 21, 2019

“[P]rovocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured.”

Tare Beltran began dating Claire Tempongko in 1998. Over the next two years, the relationship turned violent, with allegations of abuse, visits from the police, and eventually, a protective order. In late October, the then ex-couple argued over the phone, before Tempongko showed up to her house and stabbed her 17 times.

Immediately after the murder, Beltran fled to Mexico. He was apprehended six years later. The victim's son testified to the sequence of events, from heated phone calls to Beltran's inquiries as to whom the victim had been spending time with. After a five to ten minute argument, Beltran grabbed a large knife from the kitchen and murdered the victim.

The prosecution's theory was premeditated murder with express malice carried out by a jealous lover. The defense's theory was manslaughter, committed in the heat of passion after being provoked.

Beltran testified that during the argument, Tempogonko stated, "F**k you. I was right. I knew you were going to walk away someday. That's why I killed your bastard. I got an abortion." He remembered nothing else until after the murder.

The issue on appeal involves the proper definition of "heat of passion" provocation. The Attorney General argued for the proposition that the provocation must be sufficient to push the average person to kill. The defense argues that it should be sufficient to affect the person's ability to make a reasoned response to the stressor.

The California Supreme Court traces the entire history of the defense, from common law times to today, before announcing its holding above, which adopts the defense's formulation of the standard.

That's good news for the defense counsel, but as for the defendant, it will do him no good. The court spends ten pages discussing harmless error, as the jury instructions, while vague, did not misstate the standard. And while the prosecutor's misstatement of the standard in closing veered close to misconduct, the defense counsel's clarification of the proper standard in his closing cured any harm.

Personally, we're not so sure about that. The jury did, after all, ask for clarification on the provocation standard during deliberations -- after the defense's correct restatement. The judge's response was essentially a non-response that was even more confusing and vague than the original formulation. They eventually handed down a verdict of second-degree murder.

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