P. v. Wood

P. v. Wood

Filed 5/28/10 P. v. Wood CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JAMELL JUAMATTHEW WOOD, SR. Defendant and Appellant.

H033514 (Santa Clara County Super. Ct. No. CC763333)

Defendant Jamell Juamatthew Wood was convicted after jury trial of first degree murder with personal use of a deadly and dangerous weapon, a knife. (Pen. Code,  187, 12022, subd. (b)(1).)[1] Defendant admitted having a prior serious felony conviction that also constituted a strike. ( 667, subds. (a), (b)-(i), 1170.12.) The court denied defendants motion to strike the strike and sentenced defendant to the indeterminate term of 50 years to life consecutive to the determinate term of six years.

On appeal, defendant contends that the trial court violated his federal and state due process rights when it restricted his counsels closing argument, and the court violated his federal and state due process and fair trial rights when it gave former CALCRIM No. 570. Defendant also contends that the judgment must be modified to reflect the correct number of custody credits he is entitled to. We agree with the last contention. As we find no other reversible error, however, we will order the judgment modified to include the correct number of custody credits and affirm the judgment as so modified.

BACKGROUND

Defendant was charged by information with the murder of Victor Sanchez. ( 187.) The information further alleged that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offense ( 12022, subd. (b)(1)), and that he had a prior serious felony conviction that also constituted a strike ( 667, subds. (a), (b)-(i), 1170.12). The court granted defendants motion to bifurcate trial on the alleged priors.

The prosecutions theory of the case was that defendant stabbed Victor Sanchez because defendant suspected Sanchez of having sexual relations with Jeanette Lumpkin, defendants on-again, off-again girlfriend. The defense theory of the case was that the prosecution had not proved beyond a reasonable doubt that defendant had killed Sanchez and that, possibly, Jeoffrey Varner stabbed Sanchez. A knife sheath was found near Sanchezs body. A mixture of DNA from at least three people was found on the sheath. Defendant was found to be a contributor to that mixture, but Varner was excluded as a contributor to the mixture.

The Trial Evidence

The Prosecutions Case

By April 2007, David Sendejas had known defendant for about six months. He had known Victor Sanchez, the victim, since high school. Karl Matthews had known both defendant and Sanchez for about 10 or 11 years. Joshua Hamilton had known defendant for two or three years and had known Sanchez for about one year. Hamilton lived near defendant and Jeanette Lumpkin. Janelle Orlando had known defendant since he was a child and had known Lumpkin and Sanchez a few months. Orlando lived with defendant and Lumpkin in February 2007. [2]

Defendant had lived with Jeanette Lumpkin for a while. They argued frequently and Lumpkin would often kick defendant out, but she kept taking him back. They lived near Tiffany Jenkins, and one or the other of them would go to Jenkinss house when they were fighting. Jenkins was dating Karl Matthews. Matthews kept a Louis Vuitton knife and sheath at Jenkinss house. Sometime in early April 2007, Jenkins called Matthews and told him that defendant was at her home and needed someone to talk to. Defendant got on the phone and seemed upset. He said to Matthews, If I do some things, you got my kids. Matthews responded, Dont do anything dumb. Later, Jenkins overheard defendant and Lumpkin yelling at each other over the phone. Defendant said that he thought Lumpkin was cheating on him. He said, fuck you, bitch. Ill be down there. Defendant then grabbed Matthewss knife and walked out the door. Jenkins called Matthews back and told him that defendant was taking the knife. Matthews never got the knife back.

Sometime in early April 2007, David Sendejas and defendant were in an apartment at the back of Sanchezs house smoking marijuana when defendant said that Jeanette Lumpkin had kicked him out again. Defendant was upset and said that he thought somebody was trying to break up his relationship with Lumpkin. As defendant was talking, he pulled out a knife with about a five-inch fixed blade. He said that he wanted to stop whoever was messing with his family and he acted as though he was stabbing somebody in the neck and chest. He told Sendejas, I wont even say nothing Ill just get him. [E]ven if it was you Ill do it[.] I wont say nothing[,] Ill just walk in and Ill do it, thats it.

David Sendejas visited Sanchez at his house a couple of days before Easter Sunday, April 8, 2007. The house had no furniture and Sanchez had an open, packed suitcase sitting downstairs because he was in the process of moving. On that Saturday night, Jeanette Lumpkin and Leann Newman, who was staying with Lumpkin, picked Sanchez and Sendejas up from another friends house and took them to Lumpkins house. Lumpkin and Sanchez disappeared for 10 to 20 minutes. While they were gone, defendant arrived and searched for Lumpkin, but did not find her. Defendant and Sendejas were outside smoking a cigarette when Sanchez started laughing at them from atop the roof of the house. Sanchez said that he saw defendant walking up the street but that defendant could not see him. Sanchez climbed down from the roof and went inside with defendant and Sendejas. Then Sendejas saw Lumpkin jump down from the roof and come inside. Lumpkin told defendant that she had been in the garage, but defendant did not believe her because he had not seen her there when he had searched for her. Lumpkin and defendant went into their bedroom and argued.

On the night of Easter Sunday, defendant and Sanchez were supposed to pick up David Sendejas to go do something with them, but they never came. On Monday or Tuesday, Sendejas was at home when defendant called him. Defendant told Sendejas that he knew that Jeanette Lumpkin and Sanchez were having sexual relations. Defendant asked Sendejas if he was going to get in the way if defendant had a problem with Sanchez. Sendejas told defendant no, as long as he handle[d] it like a man. Defendant said that he was going to go see Sanchez. Sendejas tried to contact Sanchez to warn him, but could not reach him.

Joshua Hamilton saw defendant walking by Hamiltons house on the afternoon of Monday, April 9, or Tuesday, April 10, 2007. Defendant had a backpack slung over one shoulder. Hamilton asked defendant where he was going. Defendant continued walking and said that he was going to Sanchezs house because he heard that Sanchez and Jeanette Lumpkin had been having sex. Hamilton said that defendant said that he was going to chill with that motherfucker or kill that motherfucker. It could have been either of the two. Hamilton did not take defendants statements seriously. Later that night, Hamilton went to defendants and Lumpkins home. He heard defendant and Lumpkin talking and Lumpkin start crying, and he then left the house. A few days later, he asked Leann Newman to have David Sendejas check on Sanchez.

Leann Newman testified that defendant was at Jeannette Lumpkins house on Monday, but he left in the afternoon and did not return until late Tuesday night or early Wednesday morning. He stayed in all day Wednesday and Thursday, except that he and Lumpkin were gone together for a few hours on Thursday. On Wednesday, Newman overheard defendant talking to another man in a worried tone of voice. Defendant said that he thought he possibly did something really bad. While saying this, defendant brought his closed right fist down on his open left palm which was parallel to the ground, like he had stabbed somebody. Because of this, Newman asked Sendejas to check on Sanchez.

Janelle Orlando testified that around 2:00 or 3:00 p.m. on either Wednesday, April 11, or Thursday, April 12, 2007, she was driving around with Jeoffrey Varner and John Burriesci. Varner needed to get wireless internet access for Orlandos laptop, so Varner called Sanchez. Varner uses the internet to post advertisements for Orlandos prostitution services. Orlando, Varner and Burriesci first went to a Jack in the Box to get something to eat and then drove to Sanchezs house. Varner went inside with Orlandos laptop and Orlando and Burriesci left. Before they arrived at their intended destination, Varner called them to say that his Jack in the Box order was wrong. Orlando and Burriesci picked up Varner and returned to the Jack in the Box. After getting their order corrected, the three of them returned to Sanchezs house. On the way, Orlando saw defendant walking down the street carrying a small case over one shoulder. Defendant did not respond when Orlando called out to him, which was not like him. She saw him enter Sanchezs house.

John Burriesci parked his car nearby. After five to ten minutes, Janelle Orlando convinced Jeoffrey Varner that they should check on defendant. Orlando and Varner entered the house and started up the stairs. Defendant came down the stairs and said to Orlando something like, If you tell anybody, youre next. He was holding a knife and there was blood on his hand, the knife, and his clothes. Orlando and Varner continued up the stairs and saw Sanchez lying on the floor, not breathing. He had a cut on his neck and there was a lot of blood on the wall. Orlando ran out of the house. Varner grabbed Orlandos laptop and a radio before leaving. Orlando did not call 911 because she knew there was nothing that could be done for Sanchez. Varner, Orlando and Burriesci drove to a friends house, and Burriesci left, saying that he was going to call the police. The next morning, defendant called Orlando. Defendant apologized to Orlando without saying what the apology was for, and he said that he was looking for Varner. Orlando learned from Newman the following Saturday or Sunday that defendant had been arrested for Sanchezs murder.

Karl Matthews testified that, sometime after Easter Sunday, 2007, defendant came to his house with a woman named Trina, whom defendant was dating, as Matthews was getting ready for a job interview. They smoked some marijuana, and defendant said, I got it off my chest. I did that. I finally did it. Victors gone now.

David Sendejas went to Sanchezs house on Saturday, April 14, 2007. The front door was unlocked and Sanchezs packed, open suitcase was still downstairs. Sendejas found Sanchez lying on the floor of an upstairs bedroom. Sendejas left and contacted Sanchezs friends, including Matthews, and Sanchezs family. He did not want to talk to the police because he had been using drugs that day, but he later cooperated with them.

San Jose police were dispatched to Sanchezs house on Saturday, April 14, 2007, following a report of a possible dead body inside. They found Sanchezs body on the carpet in an upstairs bedroom. He had died due to stab wounds to the right side of his neck, to the left side of his chest, and to the left side of his back. He had no defensive wounds and he had his wallet on him. There were blood stains on the carpet and blood splatter on the walls. Some keys and an empty Luis Vuitton knife sheath were on the floor near the body. A swab of the knife sheath was analyzed by the crime lab for the presence of DNA. A mixture of DNA from at least three people was found to be present. Defendant, Sanchez, and Karl Matthews were found to be contributors to that mixture. Tiffany Jenkins, John Burriesci, Jeoffrey Varner, Janelle Orlando, and David Sendejas were excluded as contributors to the mixture.

The pathologist who performed Sanchezs autopsy did not estimate the time of death. The pathologist who testified based on the autopsy report estimated that Sanchez had been dead anywhere from six to 14 or 15 hours when his body was examined on April 14, 2007. However, the time of death could have been as long as 72 to 96 hours before that. The police did not find Karl Matthewss knife in or near either Sanchezs house or defendants home. Other knives were found but no bloody clothing was found at defendants home. Police did not find either drugs or cash in Sanchezs house, but a glass pipe used to smoke methamphetamine was found in a cabinet drawer, and Sanchez had some methamphetamine in his blood when he died.

The Defense Evidence

On a Saturday afternoon in late March or early April 2007, Mark Fite drove defendant and Sanchez around looking for Jeanette Lumpkinss car. The three of them also spent several hours at Fites home playing video games while on methamphetamine. Defendant and Sanchez appeared to Fite to be getting along very well and to be good friends. Defendant told Fite that he was teaching Sanchez the ropes on the street, and Fite overheard defendant later say that Sanchez was biting the hand that feeds him. At the time of this latter conversation, defendant was also upset with Lumpkin.

Linda Zendejas^[3] has a child with defendant. Zendejas testified that defendant met Janelle Orlando through her. Orlando lived with Zendejas for a few months beginning in June or July 2005. In Zendejass opinion, Orlando is a thief, a liar, and a manipulator. Orlando has stolen money from Zendejas. Zendejas met Jeanette Lumpkin through defendant. Zendejas has heard that Lumpkin gets around.

Felicia Gonzalez lived with Linda Zendejas when Janelle Orlando moved in with her. Gonzalez is Zendejass sister-in-law. In Gonzalezs opinion, Orlando is a liar and a manipulator. In addition, Orlando has stolen from Gonzalez. The last time Gonzalez saw defendant was on April 2 or 3, 2007. He had come to Gonzalezs house because he had had an argument with Lumpkin and he did not want to be around her. He slept on the floor and left the next day.

Trina Rowden^[4] visited Karl Matthews with defendant one afternoon in April 2007 when Matthews was getting ready to go somewhere. At the time, defendant and Rowden were romantically involved. Matthews and defendant had a conversation and smoked some marijuana. Sanchezs name did not come up in the conversation and defendant did not say anything about killing Sanchez. Defendant never said, I did it. Im glad it did it, or I got it off my chest.

John Burriesci testified that on a weekday sometime after Easter 2007, he agreed to drive Jeoffrey Varner and Janelle Orlando around. He does not remember going to a Jack in the Box. Later, as they were driving down a residential street, they saw defendant, who was running on the sidewalk. Varner asked Burriesci to stop, so Burriesci passed defendant and pulled over. Although Varner yelled at defendant, defendant did not stop. Burriesci followed defendant until he disappeared into a house. When Burriesci pulled into the driveway of the house, Varner and Orlando got out and went inside the house. Ten to 15 seconds later, defendant ran back out, passed Burriescis car, and ran down the street. Defendant had been in the house between 45 and 60 seconds. Burriesci does not recall defendant carrying anything in his hands and he did not see any blood on defendant. Burriesci heard Orlando screaming right before she and Varner ran back outside. As they got back in the car, Orlando said, Oh, my god. Call 9-1-1. Then she said, Wait a minute. Dont call them. After they drove away, Varner told Burriesci that he had seen Sanchez dying in the house. Orlando told Burriesci that the police would be called and for him to just stay out of it.

Jeoffrey Varner[5] testified that on a weekday around Easter 2007, John Burriesci and Janelle Orlando picked him up to do errands. They went to a Jack in the Box to get something to eat. Defendant called him on his cell phone and asked him if he had seen Sanchez. Varner said that he had not. Defendant said, Because Victor took his last breath. Varner told Orlando and Burriesci that he wanted to go by Sanchezs house to see if he was okay. Some months earlier, defendant had asked Varner if he had seen Sanchez and Jeanette Lumpkin together, and Varner had seen defendant and Sanchez arguing about Lumpkin. However, defendant was breaking up with Lumpkin and was now living with another girlfriend.

On the way to Sanchezs house, defendant called Jeoffrey Varner again. Defendant asked Varner, if anything should take him away from his family, would Varner look out for his children for him. Varner told defendant to not do anything silly that would take him away from his family. When Varner, Orlando, and Burriesci got to Sanchezs house, Sanchez answered Varners knock on the door. Varner went inside and talked to Sanchez about defendants phone call while Orlando and Burriesci waited in the car. Varner went back to the car and got Orlandos laptop computer. Orlando said that they were going back to the Jack in the Box because their order was messed up. Varner went back inside with the laptop and Burriesci and Orlando left.

When John Burriesci and Janelle Orlando returned, Jeoffrey Varner asked Sanchez if he wanted to go with them, but Sanchez said, No. Just call me later. Sanchez walked out to the driveway with Varner and waived at Orlando then went back inside. Varner saw defendant walking down the street towards them when they were driving away. Defendant was carrying a small case on his shoulder. Varner and Orlando called out to defendant, but he ignored them and kept walking. Burriesci stopped the car and Orlando jumped out and followed defendant, who was by then running towards Sanchezs house. Burriesci drove to the end of the block, turned around, drove back to Sanchezs house, and parked. Varner heard Orlando screaming inside Sanchezs house. He jumped out and ran inside. He followed the screams upstairs and found Orlando standing inside a bedroom, screaming with her hand over her mouth. Sanchez was lying on the ground, quivering, with blood coming from his neck. Defendant was standing up from a kneeling position, and he had what appeared to be a screwdriver in his hand. There was blood everywhere. Varner screamed out to defendant, What did you do? Defendant said to Orlando, Shut up, bitch, or it could happen to you, and then ran out. Varner and Orlando left with Burriesci without calling 911. Varner did not want to be a snitch. Later, Varner asked for help in his own criminal case in consideration for his testimony in this case. However, he did not receive any help.

Defendant did not testify in his own behalf.

The Verdicts, Admission of the Priors, Motion to Strike, and Sentencing

On July 22, 2008, the jury found defendant guilty of first degree murder ( 187), and found true the allegation that he personally used a deadly or dangerous weapon, a knife, during the commission of the offense ( 12022, subd. (b)(1)). Defendant waived his right to a jury trial on the alleged priors and admitted that he had a prior serious felony conviction that also constituted a strike. ( 667, 1170.12.)

Defendant filed a motion to strike his priors under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The prosecutor filed opposition to the motion and, on October 10, 2008, the court denied the motion. The court sentenced defendant to prison for the indeterminate term of 50 years to life consecutive to the determinate term of six years.

DISCUSSION

Closing Argument

As we stated above, the defense theory of the case was that the prosecution had not proved beyond a reasonable doubt that defendant killed Sanchez. Defense counsel argued to the jury: Is there evidence that Mr. Wood could have committed this crime? Sure. Thats why were here. But the question is, does it [rise] to the level of meeting the Peoples burden of proving to you beyond any reasonable doubt that Mr. Wood is, in fact, guilty of killing his friend Victor Sanchez. Defense counsel argued that nobody knows when Victor Sanchez was killed, and Leann Newman said that defendant was home Tuesday evening, all day Wednesday, parts of Monday and most of Thursday. The statements attributed to defendant by the various witnesses did not make sense and their description of his clothing when they saw him at or near Sanchezs house conflicted. There was also a conflict in the evidence regarding Janelle Orlandos, Jeoffrey Varners, and John Burriescis reasons for going to Sanchezs house, and what happened there that day. There was no evidence that Sanchez was killed with Karl Matthewss Luis Vuitton knife, no bloody clothing was found at defendants home, and defendant could not have found and killed Sanchez in his home within 45 to 60 seconds. There was evidence that defendant and Sanchez were good friends, that defendant was involved with other women besides Jeanette Lumpkin, that Sanchez had methamphetamine in his system when he was killed, and that Sanchez had no defensive wounds.

Defense counsel then argued: Is there a reasonable version of events that is consistent with the evidence and consistent with innocence? Yes, there is. He argued that Jeoffrey Varner knew that defendant was going to see Sanchez, that Varner was the only person who saw Sanchez alive that day, and that Varner was alone with Sanchez long enough to have committed the murder. Defendant then arrived to find Sanchez already dead and thus quickly ran out after entering the house. Think about it. Just couldnt happen the way the People want you to believe this happened. Varner and Orlando, if you need a motive, you dont need a motive, but Victor has drugs, living in a big fancy house, stealing his radio at the very least -

At this point, the prosecutor objected that there were [n]o drugs in the house, and the court sustained the objection. Defense counsel continued: Ill leave it to you folks. [] Reasonable doubt. This is the instruction that her honor has given, part of it, defendant in a criminal case is presumed to be innocent and this presumption requires the People to prove each element of the crime beyond a reasonable doubt.

Defendant now contends that the trial court unduly restricted [his] due process right to present his defense. Although the police found no drugs in Sanchezs house, there was ample evidence that Sanchez had had drugs in his house, and thus a reasonable basis for the jury to infer that Varner might have killed Sanchez to steal his drugs. The fact that the police found no drugs following their discovery of Sanchezs body was wholly consistent with [defendants] theory namely, that Varner had stolen the drugs after killing Sanchez.

The Attorney General contends that defendant has not shown that the courts ruling was an abuse of discretion. Defense counsel was permitted to argue his main points, and [a]n argument that Varner would have been motivated to steal drugs would have been entirely based on evidence showing only that Varner and Sanchez had used drugs. There was no evidence worthy of the jurys consideration that Varner killed Sanchez, much less that he stole (or intended to steal) drugs.

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment [citations], the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. [Citations.] (Crane v. Kentucky (1986) 476 U.S. 683, 690.) In addition, [i]t is firmly established that a criminal defendant has a constitutional right to have counsel present closing argument to the trier of fact. (Herring v. New York (1975) 422 U.S. 853, 856-862; [citations].) Nonetheless, it is equally settled that a judge in a criminal case must be and is given great latitude in controlling the duration and limiting the scope of closing summations. (Herring v. New York, supra, 422 U.S. at p. 862; [citation].) (People v. Rodrigues (1994) 8 Cal.4th 1060, 1184.) The trial judge may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects, he [or she] must have broad discretion. [Citations.] (Herring v. New York, supra, 422 U.S. at p. 862; see also 1044.)

Section 1044 states: It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The section  vests the trial court with broad discretion to control the conduct of a criminal trial . . . .  (People v. Cline (1998) 60 Cal.App.4th 1327, 1333.) Moreover, [t]rial judges have the duty to responsibly and fairly control the proceedings to prohibit argument which is not supported by substantial evidence. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1390 (Ponce).)

In People v. Modesto (1967) 66 Cal.2d 695, disapproved on other grounds by Maine v. Superior Court (1968) 68 Cal.2d 375, 383, fn. 8, and overruled on other grounds by People v. Sedeno (1974) 10 Cal.3d 703, 721, the trial judge did not permit the defense counsel to suggest in closing argument that the defendant saw a mysterious assailant attacking [the victim] in front of her house (Modesto, supra, 66 Cal.2d at p. 707), finding that there was no testimony tending to indicate that the Defendant . . . observed anything in the yard or on the road. (Id. at p. 708, fn. 7.) The Supreme Court held that [i]n ruling the argument improper, the trial judge was simply carrying out his duty to control all proceedings during the trial, and to limit . . . the argument of counsel to relevant and material matters (Pen. Code, 1044) by confining counsels factual argument to the record. (Id. at p. 708.)

In Ponce, defense counsel argued to the jury that the defendants had been framed. The prosecutor requested that the trial court instruct the jury that there was no evidence to support such a defense theory; the trial court did so. On appeal, the court concluded that the trial court had not erred because there was no substantial evidence that the defendants had been framed. In the absence of such evidence, the trial court had a duty and a right to preclude defense counsel from pursuing such argument. (Ponce, supra, 44 Cal.App.4th at p. 1390.)

Under the above authorities, the trial court did not abuse its discretion in limiting defense counsels argument in this case. Defendants theory of defense was that the prosecution did not prove beyond a reasonable doubt that defendant killed Sanchez, and the possibility that Varner was the killer was just one part of that theory. The court properly precluded defense counsel from arguing that Sanchez actually had drugs as the prosecution presented uncontroverted evidence that no drugs were found in Sanchezs house. However, the court did not preclude defense counsel from arguing that Sanchez used drugs, and therefore could have had drugs, as witnesses testified to Sanchezs methamphetamine use, Sanchez had methamphetamine in his system when he died, and a glass pipe used to smoke methamphetamine was found in the house. Defense counsel argued that Jeoffrey Varner stole Sanchezs radio before leaving the house. Defense counsel also argued that Varners testimony was inconsistent with Janelle Orlandos and John Burriescis, that Varner was unreliable as a witness as he admitted giving a false name to a police officer when he was arrested, that Orlando was unreliable as a witness because she is a drug user and prostitute, and that there would be nothing to tie defendant to Sanchezs murder without Varners and Orlandos testimony. After the court sustained the prosecutors objection to defense counsels argument that Sanchez had drugs, defense counsel argued to the jury, Ill leave it to you folks, and then immediately argued that the prosecution had not carried its burden of proving defendant guilty of killing Sanchez beyond a reasonable doubt. Thus, defense counsel was able to fully and fairly present defendants theory of defense to the jury. We find that, under these circumstances, no constitutional error or violation occurred. (See also People v. Bonin (1988) 46 Cal.3d 659, 695, overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [the constitutional right to have counsel present closing argument is not infringed when the opportunity to participate fully and fairly is not significantly limited].)

Former CALCRIM No. 570

Based on testimony that defendant was upset and angry that Jeanette Lumpkin was having sexual relations with Sanchez, the trial court instructed the jury with former CALCRIM No. 570 as follows: A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or heat of passion. The defendant killed someone in a sudden quarrel or heat of passion if, one, the defendant was provoked; and two, as a result of the provocation, the defendant acted rashly, under the influence of intense emotion and obscured reasoning or judgment; and, three, provocation would have caused a person of average disposition to act rashly or without due deliberation, that is, from passion rather than from judgment. [] Heat of passion does not require anger, rage or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. [] While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provokedand how such a person would have reacted in the same situation knowing the same facts. If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [] The People have the burden of proving beyond a reasonable doubt the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder. [6] (Italics added.)

The prosecutor argued to the jury: The jury decides whether the defendant was provoked and whether the provocation was sufficient. Its a reasonable person test. The defendant cant set up his own standard of provocation. And really the question is, whether a person of average disposition would have been provoked; and how such a person would react in the same situation, knowing the same facts. An average person who thinks their girlfriend might be sleeping with someone else, how would that average person react in that situation? Okay. Not heres the answer: not how the defendant did. Not in planning on murdering Victor Sanchez. Thats why its not voluntary manslaughter.

Defendant did not object to the giving of CALCRIM No. 570. However, he now contends that the italicized language in the courts instruction above constitutes an erroneous statement of law. Provocation is not determined by looking at the resulting homicidal conduct which, by definition, is unreasonable but by the circumstances giving rise to that conduct. Admittedly, the jury found [defendant] guilty of first-degree murder, which requires the jury to find the murder was willful, deliberate, and premeditated. But that implied jury finding is not dispositive given the instructional error here.

The Attorney General argues that the instruction did not come into play here because the jury was also instructed that provocation may reduce a murder from first degree to second degree pursuant to CALCRIM No. 522, but the jury found defendant guilty of first degree murder, and because defendant did not rely on provocation as a theory of his defense.

Where an intentional and unlawful killing occurs upon a sudden quarrel or heat of passion ( 192, subd. (a)), the malice aforethought required for murder is negated, and the offense is reduced to voluntary manslaughtera lesser included offense of murder. [Citation.] Such heat of passion exists only where the killers reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. [Citation.] To satisfy this test, the victim must taunt the defendant or otherwise initiate the provocation. [Citations.]

In a related vein, the existence of provocation which is not adequate to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation an inquiry relevant to determining whether the offense is premeditated murder in the first degree, or unpremeditated murder in the second degree. [Citations.] First degree willful, deliberate, premeditated murder involves a cold, calculated judgment, including one arrived at quickly [citation], and is evidenced by planning activity, a motive to kill, or an exacting manner of death. [Citation.] Such state of mind is manifestly inconsistent with having acted under heat of passioneven if that state of mind was achieved after a considerable period of provocatory conduct. [Citation.] (People v. Carasi (2008) 44 Cal.4th 1263, 1306.)

In this case, defendant argues that a properly instructed jury may have concluded that the killing was in the heat of passion based on evidence of a double betrayal by his best friend and his girlfriend, and [his] mounting rage. However, we question whether the evidence in this case was sufficient to justify voluntary manslaughter instructions because the objective componentthe reasonable person elementof heat of passion was not supported by substantial evidence. People v. Borchers (1958) 50 Cal.2d 321 (Borchers), and People v. Berry (1976) 18 Cal.3d 509 (Berry) are instructive.

In Borchers, the jury found the defendant guilty of second degree murder of his fiance, but the trial court reduced the conviction to voluntary manslaughter. The People appealed. (Borchers, supra, 50 Cal.2d at p. 323.) Our Supreme Court held that the trial courts finding that there was no sufficient showing of malice aforethought was supported by a reasonable view of the evidence. (Id. at p. 330.) From the evidence viewed as a whole the trial judge could well have concluded that [the] defendant was roused to a heat of passion by a series of events over a considerable period of time: [his fiances] infidelity, her statements that she wished she were dead, her attempt to jump from the car on the trip to San Diego, her repeated urging that defendant shoot her, [the child she was raising], and himself on the night of the homicide, and her taunt, are you chicken. (Id. at pp. 328-329.) It may fairly be concluded that the evidence on the issue [of whether the homicide was voluntary manslaughter] supports a finding that defendant killed in wild desperation induced by [the victims] long continued provocatory conduct. (Id. at p. 329.)

In Berry, the defendant was found guilty by a jury of the first degree murder of his wife. (Berry, supra, 18 Cal.3d at p. 509.) On appeal, the defendant contended that the trial court erred in not instructing on voluntary manslaughter based upon a sudden quarrel or heat of passion. (Id. at p. 514.) Our Supreme Court agreed with the defendant: Defendants testimony chronicles a two-week period of provocatory conduct by his wife Rachel that could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly from this passion. (Id. at p. 515.) The defendant had testified that his wife announced to him that, during a trip to her homeland, she had fallen in love with another man, that she had enjoyed his sexual favors, that he was coming to this country to claim her, and that she wanted a divorce. Then, for the next two weeks, his wife alternately taunted defendant with her involvement with the other man and at the same time participated in sexual conduct with defendant. The defendant choked his wife into unconsciousness once. On the day of the homicide, the defendants wife found him at their home after she returned from being out all night. She said, I suppose you have come here to kill me, and she screamed at him. He tried to stop her screaming. They struggled and defendant finally strangled her with a telephone cord. (Id. at pp. 513-514.)

In this case, unlike in Borchers and Berry, defendant did not kill Jeanette Lumpkin, the woman he thought had been unfaithful to him, but killed Sanchez, the man defendant suspected Lumpkin was involved with. Although the prosecutor presented evidence that defendant suspected Lumpkin of infidelity, the evidence was presented to show a motive for murder and was not sufficient evidence of provocation. There was no evidence of verbal taunting or urging by Sanchez for defendant to kill him and no other evidence of any other provocatory conduct by Sanchez either on the day of the homicide or in the days before. In addition, there was substantial evidence of malice aforethought, deliberation and premeditation. Shortly before Sanchezs death, defendant told David Sendejas that he wanted to stop whoever was trying to break up his relationship with Lumpkin, and acted as though he was stabbing somebody. Defendant said that he would just walk in and . . . do it. Defendant made comments to both Karl Matthews and Jeoffrey Varner that he wanted them to take care of his children if he did anything to take him away from his family. Also, around the time of Sanchezs death, defendant told Matthews that he finally did it, and got it off [his] chest, and that Sanchez was gone now. In addition, defendant did not rely on provocation as a theory of his defense. Rather, he claimed that he was not the killer and that the prosecution had not proved beyond a reasonable doubt that he was.

On this record, we find that no rational juror could have concluded that the evidence in this case would have caused an ordinary person to become so inflamed that he lost reason and judgment and would have reacted from passion rather than from judgment. Consequently, any instructional error regarding former CALCRIM No. 570 could not have prejudiced defendant. Furthermore, after reviewing the entire record, which included the evidence above as well as evidence that defendants DNA was found on the knife sheath next to Sanchezs body but Varners was not, we find that it is not reasonably probable the jury would have reached a more favorable result had the current version of CALCRIM No. 570 been given. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Custody Credits

The probation report states that defendant was arrested on April 14, 2007, and was entitled to 508 days of custody credits. At the October 10, 2008 sentencing hearing, the trial court found that defendant was entitled to 538 days of custody credits. The abstract of judgment lists defendants total custody credits as 530.

Defendant contends that he is entitled to 546 days of custody credits, and the Attorney General concedes the issue. We agree with the concession, and will order the judgment modified to include the correct number of days of custody credits.

DISPOSITION

The judgment is modified by correcting defendants custody credits to 546 actual and total credits. As so modified, the judgment is affirmed. The clerk of the superior court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

MIHARA, J.

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MCADAMS, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] David Sendejas testified that he has a 2005 conviction for petty theft, and that he had recently been on probation for using drugs. Karl Matthews testified that he has a 2001 conviction for petty theft, a 2002 conviction for taking a vehicle, and a 2003 conviction for selling drugs. At the time he testified, he was in custody for contempt of court, but the jury was not informed of this. Joshua Hamilton testified that he was on probation for misdemeanor battery. Janelle Orlando testified that she has a 1992 conviction for passing a bad check, and that she was on probation for a drug offense. All of the witnesses testified that they were using methamphetamine in April 2007.

[3] Linda Zendejas testified that she was on probation for a drug offense. She is not related to David Sendejas.

[4] Trina Rowden testified that she was on probation for misdemeanor giving a false name to a police officer. She also has a 2005 conviction for receiving stolen property; 2006 convictions for petty theft with a prior, taking a vehicle without permission, receiving stolen property, and giving false identification to a police officer; and 2007 convictions for petty theft and giving false identification to a police officer.

[5] Jeoffrey Varner testified that he was on felony probation for receiving stolen property. He also has prior convictions for misdemeanor receiving stolen property, for petty theft, and for giving false information to a police officer.

[6] CALCRIM No. 570 was amended after defendants trial and now provides: In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.