I dissent.
The majority opinion accurately recites prevailing principles of law. People v. Chacon (1968) 69 Cal.2d 765, 781 [73 Cal.Rptr. 10, 447 P.2d 106], makes it abundantly clear that the trial court’s refusal to give an instruction on provocation, if applicable, was erroneous. In a prosecution for murder the presence of sufficient provocation or heat of passion usually negates the existence of the requisite malice aforethought. (People v. Valentine (1946) 28 Cal.2d 121, 132 [169 P.2d 1].) As stated in Chacon, in a prosecution for murder, even though the defense of self-defense fails because of excessive retaliation by the defendant, the jury could determine the original attack by the victim sufficient to constitute provocation.
In the usual prosecution for murder, failure to give an instruction on provocation, when appropriate, would be prejudicial. However, I do not find error under the facts of this case, but if there was error it was not prejudicial and clearly there was no miscarriage of justice. (Cal. Const., art. VI, § 13.)
Emphasis upon several salient facts is indicated. The victim, Carter, was approximately 47 years old, 5 feet 5 inches tall and weighed 130 to 135 pounds. The defendant, serving a sentence for a previous killing (second degree murder), is some 10 years younger, half a foot taller, and 40 pounds heavier. All the evidence indicates that prior to the conflict, the victim had been in a jovial mood, engaging in horseplay with other inmates, thus negating the likelihood that he harbored a brooding or menacing attitude and contemplated violence. The defendant invaded the victim’s cell where the altercation took place.
Sgt. Wilson of the prison guards heard the victim calling for help, ran to his cell and there saw the defendant kneeling over the victim with the latter plaintively crying out for assistance. Wilson paused at the door and *540ordered the defendant to come out of the cell. The defendant ignored the command and all the while he “was gripping something with both hands and was forcing his hands down into Carter’s body.” Wilson grabbed the defendant’s sleeve, whereupon the defendant pulled away saying “get out of here, Sarge.” As he spoke the defendant raised a knife and plunged the blade into the left side of Carter’s chest.
The officer continued attempting to drag the defendant from the cell by his leg, but the defendant again told him to “get out of here,” kicked Wilson’s grip free and resisted Carter’s efforts to wrest the knife away. Wilson sounded a whistle to summon help and once again ordered defendant to give him the knife. Instead of doing so the defendant raised the knife, hesitated a moment, and stabbed Carter again in the chest. Only after another officer arrived to assist Wilson were they able to subdue the defendant. Carter rolled onto the floor with a knife on his chest.
As to the initial phase of the assault, I concede that under Chacon “the jury might still find the original attack sufficient to constitute provocation,” even though the defense of self-defense fails because of the clearly excessive retaliation. I would hold under the facts of this case, however, that if there were an original attack by Carter it was successfully repulsed and had terminated, and if there had been retaliation by the defendant to any original provocation, the provocation was concluded and the retaliation interrupted at the moment the prison guard arrived. The intervention by the guard, both physically and by assertion of authority, created an entirely new and divisible phase in the sequence of events. The cell was no longer an arena merely accommodating defendant versus Carter; it then became the scene for a conflict in which defendant deliberately defied the prison administration to begin an additional attack on Carter.
When Sgt. Wilson attempted to pull the defendant off the victim, when he ordered the defendant to stop the assault, when the defendant forcibly pulled away from the guard and demanded that the guard leave the cell and subsequently kicked the guard’s grip free in order to plunge the knife into Carter, the defendant undertook a new, unprovoked and malicious attack culminating in the murder of Carter. In the course of events occurring in the presence of the guard, not only was there then no fear of imminent attack by Carter and thus no need for self-defense, there was no evidence whatsoever of any additional provocation relating to the additional assault by defendant.
Under these factual circumstances, without any evidence of provocation for the assault committed after intervention by the guard, failure to comply with the rule of Chacon was not improper. 'While omission of an instruction *541on provocation regarding the initial altercation may have been error, it was not prejudicial.
I would affirm the judgment.
McComb, J., concurred.