California, United States of America
The following excerpt is from People v. Jones, 167 Cal.Rptr.3d 659, 223 Cal.App.4th 995 (Cal. App. 2014):
To be sure, the result might have been different if the prosecutor had argued that an objective test applied to reduce murder from first to second degree. (See People v. Guiton (1993) 4 Cal.4th 1116, 11281129, 17 Cal.Rptr.2d 365, 847 P.2d 45 [prejudice might be inferred where two alternative bases of guilt were presented to jury, one valid and the other not, and prosecutor stressed the latter].) This takes us to the third reason we disagree with appellant's argument: appellant did not rely on provocation at trial. In fact, as we next discuss, provocation was scarcely mentioned at all.
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