Unreported / Non-Citable
Background
A jury convicted Keshon Derrick Wilson of first degree murder and premeditated, deliberate attempted murder after a shooting at San Francisco's 24th Street BART station. One victim died and another was wounded; both men were later identified as being involved in the Norteño street gang, whose members generally carried guns. The jury also found true that Wilson personally discharged a firearm causing both death and great bodily injury. The trial court imposed 25 years to life for first degree murder, seven years to life for the premeditated and deliberate attempted murder, and 10 years for the personal use of a firearm enhancement, described as 32 years to life plus 10 years.
The evidence included testimony that several men harassed Wilson while he was power washing BART stations, circled him, grabbed his shirt, threatened him, and used a racial slur. Wilson returned toward the station after initially driving away and admitted shooting the victims, but testified that the men reached for guns and that he blacked out and feared for his life. The trial court instructed the jury with CALCRIM Nos. 521, 522, 570, 601, and 603, covering murder, provocation, heat-of-passion manslaughter, and premeditated attempted murder.
During deliberations, the jury asked whether it could use CALCRIM No. 570's definition of provocation—including whether a person of average disposition would have reacted from passion rather than judgment—to decide whether provocation reduced murder from first to second degree under CALCRIM No. 522. The court answered that the CALCRIM No. 570 definition could be used to help evaluate provocation for that purpose, while also saying the jury was not limited to that definition.
The Court’s Holding
The Court of Appeal held that the answer misstated the governing distinction between second degree murder and voluntary manslaughter. Provocation that actually prevents a defendant from subjectively deliberating or premeditating can reduce first degree murder to second degree. Reducing murder to voluntary manslaughter additionally requires provocation sufficient under an objective standard. By authorizing use of CALCRIM No. 570's objective test for the degree-of-murder question, the trial court could lead the jury to demand more than actual provocation before rejecting first degree murder.
The otherwise correct pattern instructions did not cure the specific, misleading answer to the jury's question. Nor did the statement that jurors were not limited to the objective definition remove the error: the answer still expressly permitted that definition to govern the decision between first and second degree murder. The court rejected the Attorney General's reliance on the instructions as a whole because that argument did not show the supplemental response accurately stated the law, and it also rejected the argument that the response's additional statements properly mirrored CALCRIM No. 522.
Applying the Chapman harmless-beyond-a-reasonable-doubt standard, the court found prejudice. Evidence of threats, armed gang members, racial harassment, fear, and Wilson's visible agitation could support a finding of actual provocation, while the verdict did not necessarily establish that the jury rejected subjective rather than objective provocation. More than 13 hours of deliberations, requests for testimony, repeated provocation questions, and a reported inability to agree on first degree murder reinforced that conclusion. The same instructional problem required reversal of the premeditated, deliberate attempted murder conviction.
Key Takeaways
- Actual provocation that prevents premeditation or deliberation can reduce first degree murder to second degree without satisfying the additional objective test for voluntary manslaughter.
- A trial court's specific answer to a jury's legal question must be accurate even when the original pattern instructions were correct.
- The error was not harmless because the record supported possible subjective provocation and the jury's deliberations demonstrated close attention to that issue.
- The flawed provocation response also required reversal of the attempted murder conviction's premeditation and deliberation determination.
- The appellate court did not decide Wilson's sentencing argument or his claim that CALCRIM No. 522 should have been modified for attempted murder.
Why It Matters
The disposition reverses both convictions, vacates the sentence, and remands for further proceedings. The court remanded to give the prosecution the opportunity to retry Wilson on the charges or accept modification of the judgment to reflect convictions for second degree murder and attempted murder without the premeditation enhancement. Depending on that outcome, resentencing is warranted so the trial court may reconsider the entire sentencing structure.
The opinion leaves the sentencing issue unresolved because reversal made a decision unnecessary. It likewise declined to address whether the trial court had an independent duty to modify CALCRIM No. 522 to refer to a degree of attempted murder.