What is the test for provocation in the context of degrees of murder?

Further, there is no reasonable probability that the appellant would have received a more favorable outcome if trial counsel had requested and obtained an instruction. When considering provocation in the context of degrees of murder, the question is whether the defendant was actually (although unreasonably) provoked. Specifically, "[t]he issue is whether the provocation precluded the defendant from deliberating. (See CALJIC No. 8.20.) This requires a determination of the defendant's subjective state." (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.) As we discuss above, the jury was instructed to consider whether appellant acted "under a sudden heat of passion or other condition precluding the idea of deliberation" and whether he acted on "a mere unconsidered and rash impulse" rather than from judgment. The jury found appellant acted with premeditation and deliberation and so necessarily found appellant did not act under heat of passion or a condition precluding deliberation. Further, as we also discuss above, the evidence of premeditation and deliberation was very strong.