P. v. Esquivel















Filed 9/19/12 P. v. Esquivel CA2/4

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION FOUR




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THE PEOPLE, Plaintiff and Respondent, v. RICARDO DEJESUS ESQUIVEL, Defendant and Appellant.

B237509 (Los Angeles County Super. Ct. No. BA369493)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Frederick N. Wapner, Judge. Affirmed.

Cannon & Harris and Donna L.
Harris, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Seth P. McCutcheon, Deputy Attorneys
General, for Plaintiff and Respondent.



A jury convicted defendant Ricardo
DeJesus Esquivel of second degree murder
with discharging a firearm causing death.
(Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b), (c) & (d).)href="#_ftn1" name="_ftnref1" title="">[1] The trial court sentenced him to a total term
of 40 years to life. He appeals from the
judgment of conviction, contending that the trial court erred by informing the
jury that provocation could negate the premeditation and deliberation required
for first degree murder but failed to explain that provocation could also
negate malice so as to reduce a murder to manslaughter. We disagree and affirm the judgment.



BACKGROUND

Prosecution Evidence

The murder victim was Sandra Marlene
Lopez De Mangandi, known as Marlene. In
March 2010, she and her 16-year-old son Salvador moved into a one-bedroom apartment
with defendant on East 56th Street in Los Angeles.
According to Salvador, Marlene lived with defendant as
friends. Salvador and Marlene slept in separate beds
in the bedroom and defendant slept in the living room.

Marlene worked nights at McDonald’s
and would return to the apartment around 3:00 or 4:00 a.m.
Around 6:00 a.m. on March 23, 2010, Salvador left for school. Marlene said goodbye from her bed. When Salvador returned from school around 4:30 p.m., defendant was lying on his bed in the
living room and told Salvador that Marlene was sleeping. Salvador found Marlene in the bedroom, pale
and unresponsive, and called 911. While Salvador was on the phone, defendant got a
salad from the refrigerator and began to eat.
An autopsy later revealed that Marlene had been shot seven times
(through the cheek, chin, forearm, chest, and abdomen) causing fatal injuries
to her heart, aorta, brain,
and lung.

After being arrested, defendant was
interviewed at the police station by Los Angeles Police Detective Julio
Benavides. The interview was recorded
and defendant later provided a written confession. In the interview, after waiving his rights,
defendant said that he had met Marlene in April 2008 while working as a
security guard at a McDonald’s where Marlene also worked. They began dating and moved in together, but
Marlene soon broke it off and moved in with another boyfriend. Defendant felt betrayed and
heart-broken. Perhaps a year later,
Marlene again moved in with defendant.

Around 6:30 a.m. on the morning of the killing, after
Salvador left, defendant went into Marlene’s
room intending to have sex. Marlene told
him to leave her alone so she could sleep.
Around 9:00 a.m., when defendant again broached the subject of sex, Marlene
again said that she wanted to sleep. She
added that she had people who knew where he worked and lived and they would
follow him and hurt or murder him if he did not leave her alone. Feeling betrayed, defendant retrieved a .40
caliber handgun from his backpack, returned to the foot of Marlene’s bed, and
shot her seven times. He then picked up
the casings, put them with the gun in his backpack, and hid the backpack at his
cousin’s house. He returned to the apartment
and was there when Salvador came home. Defendant directed Detective Benavides to
where the backpack was hidden. The gun
used in the killing was recovered.



Defense Evidence

Alexander De Leon testified that he
met Marlene in 2008; they dated. In
early 2009, he lived with her in an apartment.
The relationship ended when Salvador moved in with them, and eventually
Marlene and Salvador moved out.



DISCUSSION

Defendant contends that notes sent out
by the jury during deliberations reflected confusion about how to evaluate
evidence of provocation, and that the trial court’s responses “left [the jury
to use] provocation only in their determination of whether [defendant]
committed first or second degree murder.
The trial court erred by failing to instruct the jury that adequate
provocation may negate malice to
reduce murder to voluntary manslaughter.” (Italics added.) We disagree.



1.
The Pattern Instructions

Using the pattern CALCRIM instructions, the trial court instructed the
jury that defendant was charged with murder and the lesser offense of
manslaughter (500); defined murder with malice aforethought (520); defined
premeditated and deliberate first degree murder (521); explained that
provocation may reduce murder from first to second degree, and reduce murder to
manslaughter (522); and explained provocation and heat of passion reducing
murder to voluntary manslaughter (570).

In relevant part, the instructions
informed the jury that “[p]rovocation may reduce a murder from first degree to
second degree and may reduce a murder to manslaughter. . . . If you conclude that the defendant committed
murder but was provoked, consider the provocation in deciding whether the crime
committed was first or second degree murder.
Also, consider the provocation in deciding whether the defendant
committed murder or manslaughter.”

In explaining voluntary manslaughter,
the instructions stated:

“A killing that would otherwise be
murder is reduced to voluntary manslaughter if the defendant killed someone
because of a sudden quarrel or in the heat of passion. [¶]
The defendant killed someone because of a sudden quarrel or in the heat
of passion if: [¶] 1. The
defendant was provoked; [¶] 2. As
a result of the provocation, the defendant acted rashly and under the influence
of intense emotion that obscured his reasoning or judgment; AND [¶]
3. The provocation would have
caused a person of average disposition to act rashly and 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. . . . [¶] 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, in the same situation and knowing the same facts, would have
reacted from passion rather than from judgment.
[¶] 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.”



2.
Note Concerning the Difference
Between First and Second Degree Murder

On the second day of deliberations, after
asking to listen to the cassette recording of defendant’s interview with
Detective Benavides, the jury sent out a second note: “We would like to know if there is additional
explanation re: the difference between
1st and 2nd degree murder.” After consulting
with counsel, the court submitted a written response, which stated: “First degree murder is defined in
instruction 521. The defendant must act
willfully, deliberately, and with premeditation. Those words are further defined in that
instruction. The People have the burden
of proving beyond a reasonable doubt that the killing was first degree murder
rather than some lesser crime, including second degree murder. If the People have not met this burden, you
must find the defendant not guilty of first degree murder. Second degree murder is defined in
instruction 520. It is a killing that
was done with either express or implied malice as they are defined in that
instruction.” Defense counsel did not
object to the court’s response.href="#_ftn2"
name="_ftnref2" title="">[2]



3.
Note Concerning Provocation Reducing
First Degree Murder to Second Degree

Approximately 55 minutes later, just
before the evening recess, the jury informed the court that there was another
question. That inquiry stated: “Instruction No. 522 states that ‘provocation
may reduce a murder from first degree to second degree.’ We’re uncertain how to read this section or
when ‘provocation’ should be considered.”

The next day, after consulting with
counsel (who did not object; see fn. 2, supra),
the court gave the following response:
“Provocation may be sufficient to reduce murder to voluntary
manslaughter. Please see instruction 570
for the requirements. Provocation that
is not sufficient to reduce murder to voluntary manslaughter, may reduce first
degree murder to second degree murder.
Provocation should be considered on the question of whether the
defendant acted deliberately and with premeditation as those terms are defined
in instruction 521.”



4.
Note Concerning Jury Split on
Consideration of Provocation

In the afternoon session that same
day, the jury sent out another note. It
stated: “Our group is split on how to
interpret the jury instructions and we’d like clarification please. Part of our group is reading instruction 521
. . . the following way: Murder one requires
that we believe the defendant acted ‘willfully, deliberately and with
premeditation.’ Provocation may reduce
murder one to murder two, but we still must find that the defendant acted
‘willfully, deliberately, and with premeditation.’ If the defendant acted in a way that wasn’t
willful, deliberated and premeditated, then we must conclude that he is
not guilty of murder one or murder two, and we must then consider
manslaughter. [¶] The other part of the group is
questioning: if we do not believe the
defendant acted willfully, deliberately and with premeditation (all
three) but with provocation, can it be murder two, or must we find him not
guilty of murder and then only consider manslaughter?”

After consulting with counsel the next
morning, the court proposed to respond as follows:

“Second degree murder does NOT require
deliberation and premeditation. A person
may be guilty of second degree murder if the provocation is sufficient to
negate deliberation and premeditation as they are defined in instruction 521,
but not sufficient to reduce the offense to voluntary manslaughter as defined
in instruction 570.

“PART I

“1. Only first degree
murder requires deliberation and premeditation.
Second degree murder does not.

“2. If you find the
defendant acted without deliberation or premeditation, but the provocation was
not sufficient to reduce the killing to voluntary manslaughter, then he is
guilty of second degree murder.

“PART II

“If you do not believe the defendant acted with deliberation
and premeditation, then he may be guilty of either second degree murder or
voluntary manslaughter, depending on your view of the sufficiency of the
provocation. Please see instructions 521
and 570 and the answer to question # 3.”

“[T]he answer to question # 3” to
which the court referred, quoted above in section 3 of our discussion,
stated: “Provocation may be sufficient
to reduce murder to voluntary manslaughter.
Please see instruction 570 for the requirements. Provocation that is not sufficient to reduce
murder to voluntary manslaughter, may reduce first degree murder to second
degree murder. Provocation should be
considered on the question of whether the defendant acted deliberately and with
premeditation as those terms are defined in instruction 521.”

Defendant’s attorney did not
specifically object to the court’s proposal.
He suggested that “the court should add jury instruction[s] CALJIC 8.71
and 8.72.” Those instructions state, in
substance, that if the jury unanimously agrees beyond a reasonable doubt that
the defendant committed murder, but has a reasonable doubt whether the murder
is of the first or second degree, it must return a verdict of second degree,
and that if the jury unanimously agrees beyond a reasonable doubt that the
killing was unlawful, but has a reasonable doubt whether the killing is murder
or manslaughter, then it must return a verdict of manslaughter.

In the alternative, defense counsel
orally suggested supplementing the court’s response with the following
italicized language: “If you find the
defendant acted without deliberation or premeditation, but the provocation was
not sufficient to reduce the killing to voluntary manslaughter, then he is
guilty of second degree murder. If the provocation was sufficient to reduce
the killing to voluntary manslaughter, then he is not guilty of second degree
murder.”

The court elected to give its
suggested response without change. It
read the response to the jury, and also provided the response in writing. The court also informed the jury that if the
response “still doesn’t help, then you’ve got to let me know. . . . I have yet another possible alternative
way of doing this.”

The jurors retired to deliberate. Eleven minutes later, they returned with a
guilty verdict for second degree murder.




5.
Defendant Forfeited the Claim of
Error Made on Appeal

Defendant contends that the court’s
final explanation was erroneous because “[b]y telling the jurors provocation
should be considered on the issues of premeditation and deliberation, the trial
court also implicitly told the jury that provocation did not apply to the
evaluation of malice. The trial court
erred by failing to instruct the jury that provocation may negate malice to
reduce an unlawful killing to manslaughter.”


Defendant has forfeited the
contention. “A defendant may forfeit an
objection to the court’s response to a jury inquiry through counsel’s consent,
or invitation or tacit approval of, that response. [Citations.]
. . . ‘Tacit approval’ of the
court’s response, or lack of response, may be found where the court makes clear
its intended response and defense counsel, with ample opportunity to object,
fails to do so. [Citation.] At its furthest reach the rule has been held
to justify a forfeiture where defense counsel sat mute while the court provided
a response later challenged on appeal.
[Citation.] . . . Waiver has also been found where the court
responds to an inquiry with a correct and germane statement of the law, and the
defense proposes no further clarification.
[Citation.]” (>People v. Ross (2007) 155 Cal.App.4th 1033, 1048.)

Here, before responding to each jury
question, the court provided defense counsel and the prosecutor with its
proposed response. Defense counsel never
objected to any of the responses. As to
the final response, defense counsel proposed two alternative suggestions: adding CALJIC Nos. 871 and 872, or adding to
the court’s response a statement that defendant was not guilty of second degree
murder if the provocation was sufficient to reduce the killing to voluntary
manslaughter. Neither of these
suggestions involved the defect claimed on appeal – the purported need to state
that adequate provocation may negate
malice to reduce murder to voluntary manslaughter. Therefore, defense counsel tacitly approved
the court’s response to the extent it did not include such an advisement, and
the issue is forfeited on appeal.



6.
The Claim Fails on the Merits

In any event, we are not persuaded by
defendant’s contention. The crux of
defendant’s argument is that a reasonable juror would have been confused into
believing that provocation could only be used to negate premeditation and
deliberation so as to reduce murder from the first to second degree, and would
not have understood how provocation could reduce murder to voluntary
manslaughter. Defendant specifically
faults the trial court for not expressly telling the jury that “adequate
provocation may negate malice to
reduce murder to voluntary manslaughter.”
(Italics added.)

Of course, in determining how a
reasonable juror would understand the court’s instructions and responses
regarding provocation and manslaughter, “‘“we consider the specific language
under challenge and, if necessary, the charge in its entirety. [Citation.]
Finally, we determine whether the instruction, so understood, states the
applicable law correctly.”
[Citation.]’ [Citation.]” (People
v. Yarbrough (2008) 169 Cal.App.4th 303, 317.) Moreover, “[t]he jury’s request for further
clarification triggered section 1138.
The statute provides in part:
‘After the jury have retired for deliberation, . . . if they desire to
be informed on any point of law arising in the case, they must require the
officer to conduct them into court. Upon
being brought into court, the information required must be given. . . .’ (§ 1138.) ‘This means the trial “court has a primary
duty to help the jury understand the legal principles it is asked to apply. [Citation.]
This does not mean the court must always elaborate on the standard
instructions. Where the original
instructions are themselves full and complete, the court has discretion under
section 1138 to determine what additional explanations are sufficient to
satisfy the jury’s request for information.
[Citation.] Indeed, comments
diverging from the standard are often risky.
[Citation.]” [Citation.]’” (People
v. Montero (2007) 155 Cal.App.4th
1170, 1179.)

Here, no reasonable juror could have
been confused by the court’s responses.
The responses were legally correct, and defendant does not contend
otherwise. The specific language used by
the court consistently informed the jury that provocation could reduce murder
to manslaughter, depending on the jury’s evaluation of the sufficiency of the
evidence of provocation. Moreover, in
its response to the jury’s final note, the court referred to the jury to
CALCRIM No. 570 to determine whether defendant was guilty of murder or
manslaughter (“Provocation may be sufficient to reduce murder to voluntary
manslaughter. Please see instruction 570
for the requirements”). CALCRIM 570 is a
clear, common sense explanation of how provocation reduces murder to
manslaughter (e.g., “[a]s a result of provocation, the defendant acted rashly
and under the influence of intense emotion that obscured his reasoning or
judgment” and “[t]he provocation would have caused a person of average
disposition to act rashly and without deliberation, that is, from passion
rather than from judgment”). We fail to
see how an instruction in the legalistic terms advocated by defendant –
“adequate provocation may negate malice to reduce murder to voluntary
manslaughter” – would have provided any clearer guidance on how to evaluate
evidence of provocation in relation to reducing murder to manslaughter than the
guidance provided by the court in CALCRIM No. 570 and its responses to the
jury’s notes. In short, the court’s
responses to the jury’s inquires, including its referring the jury back to
CALCRIM No. 570, were perfectly proper.

>DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





WILLHITE,
J.



We concur:



EPSTEIN, P. J.



MANELLA, J.