Is provocation sufficient to reduce a murder to second degree?

Abramyan contends that the instruction was a misstatement of the law because murder by lying in wait and conspiracy to commit murder both require malice and provocation negates malice. While it is true that those crimes require malice, the finding of (1) lying in wait or (2) conspiracy to commit the murder supplies that finding of malice, which cannot be reduced by provocation. (See People v. Stanley (1995) 10 Cal.4th 764, 794, 42 Cal.Rptr.2d 543, 897 P.2d 481 [lying in wait functional equivalent of premeditation, deliberation, and intent to kill].) A murder committed by lying in wait is always first degree murder. All murder which is perpetrated by means of ... lying in wait ... or by any other kind of willful, deliberate, and premeditated killing ... is murder of the first degree. (Pen.Code, 189.) Therefore, if the jury found murder by lying in wait, provocation was irrelevant because the murder could not be reduced to second degree murder. Likewise, a conspiracy to commit murder is always a conspiracy to commit first degree [129 Cal.Rptr.3d 849]murder and provocation cannot reduce it to a conspiracy to commit second degree murder. ( People v. Cortez (1998) 18 Cal.4th 1223, 1237, 77 Cal.Rptr.2d 733, 960 P.2d 537.)