Filed 10/1/26 P. v. Almeida CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
THE PEOPLE, C102624
Plaintiff and Respondent,
(Super. Ct. No. STK-CR-FE-
v. 2020-0011781)
HELDER BETTENCOURT ALMEIDA,
Defendant and Appellant.
Defendant Helder Bettencourt Almeida and William Pratt were inmates at Deuel
Vocational Institution (Deuel). On June 8, 2020, defendant punched Pratt in the head and
face more than 20 times. Pratt never fought back. He died approximately two months
later from traumatic brain injury, never having regained consciousness. A jury found
defendant guilty of second degree murder, and the trial court sentenced him to 15 years to
life in state prison.
On appeal, defendant argues: (1) the trial court abused its discretion and violated
his constitutional rights in denying his Pitchess motion (see Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess)) seeking the personnel records of the lead investigator,
(2) the trial court violated his constitutional rights by excluding evidence relevant to the
impeachment of the forensic pathologist who performed the autopsy on Pratt, (3) the trial
court erred in refusing his request to instruct the jury with CALCRIM No. 570 on the
provocation/heat of passion theory of voluntary manslaughter, and (4) the trial court’s
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response to a jury note requesting clarification of implied malice was inadequate and
violated his constitutional rights. We will affirm.
BACKGROUND
An information charged defendant in the lone count with the murder of William
Pratt. (Pen. Code, § 187, subd. (a).)1
I
The Prosecution
Sergeant Joseph Valeros worked at Deuel, a level 3 state prison and reception
center. At approximately 11:00 a.m. on June 8, 2020, Sergeant Valeros was working in
the recreation yard with Officers Mariano and Anguzo. As the inmates were being
recalled to their housing units, Valeros observed a one-on-one inmate fight. An officer
from Tower 13 broadcast “Yard down,” directing all inmates to sit on the ground or get
on their knees. Sergeant Valeros and Officers Mariano and Anguzo ran towards the fight,
shouting “Get down.” One of the inmates, Pratt, was on the ground. Defendant was
straddling Pratt, punching him in the face with hook punches using both fists. At the
time, defendant was about 36 years old, Pratt about 61. Pratt was not fighting back.
Defendant did not initially comply with the command that he get down. However,
as the corrections officers approached to within about 25 feet, defendant stood up, threw
his hands in the air, and “let out a Ric[] Flair ‘Woo.’ ” He then got down on the ground
with his hands behind his back.
Officer Mariano approached Pratt, who was unresponsive, and saw that he was
bleeding heavily from his mouth and nose, and his face and eyes were swollen. Mariano
1 Further undesignated section references are to the Penal Code.
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searched Pratt and found only his identification and a small notebook. Officers placed
Pratt on a gurney and transported him from the yard. He remained unconscious.
There was blood and teeth or dentures at the site of the assault. Officers also
discovered a portable CD player approximately 10 feet away. Officer Mariano did not
think the CD player had any relation to the incident because it was so far from where it
occurred, so he placed it in a locker near the yard shack. About a week later, after
reviewing surveillance video, he realized that the CD player may have been involved in
the incident. However, by that time, Deuel was in the process of closing down, the
lockers at the yard shack had been removed, and Mariano did not know what became of
the CD player.
Officer Henry Shamoiel was assigned to the Investigative Services Unit at Deuel
and was lead investigator in this matter. Discussing surveillance video of events
surrounding and including the assault, Shamoiel described seeing an inmate carrying
something in his right hand and approaching Pratt. Defendant could then be seen jogging
towards Pratt’s location. At one point, defendant was directly behind the inmate carrying
an item in his right hand. The inmate carrying the item handed it to Pratt. The inmate
who handed Pratt the item walked away. Defendant then “kind of went to the side,
almost behind Mr. Pratt, and swung or threw a punch with his right hand toward Mr.
Pratt, his upper torso head region.” Pratt went to the ground with defendant’s first punch.
Defendant then got on top of Pratt, straddling him. Shamoiel estimated that defendant
punched Pratt 21 times, alternating hands. At some point, defendant stood up, walked
around Pratt, and then stood above him and continued punching him with his right hand.
Defendant then kicked away what appeared to be the CD player. Pratt never fought back
or took any defensive action.
Dr. Brian Leo testified that Pratt came to the infirmary unconscious after the
assault. Pratt had severe trauma to the head and face, bleeding from the nose, mouth, and
ear, and missing teeth. Dr. Leo believed Pratt’s injuries were severe and life-threatening.
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Infirmary staff called 911, started an IV-line, suctioned blood from Pratt’s mouth, and
applied a neck collar and oxygen mask. Pratt remained unconscious during his time in
the infirmary.
Within five to ten minutes, a team came to transport Pratt to San Joaquin General
Hospital. Medical personnel began working on Pratt immediately upon his arrival at the
hospital. Officer Kong Lor rode in the ambulance and stayed with Pratt at the hospital
until relieved, at approximately 2:00 or 2:30 p.m. Lor did not recall Pratt ever regaining
consciousness.
Dr. Shih-Dun Liu, a surgical intern at San Joaquin General Hospital, treated Pratt.
When Pratt was brought in, they commenced resuscitation. Pratt rated a three, the lowest
level of functioning, on the Glasgow Coma Scale, a scale used to rate consciousness and
brain function. An anesthesiologist managed to place a breathing tube to help Pratt
breathe. A CT scan revealed that Pratt had traumatic bleeding in his head, intracranial
bleeding, blood in the ventricles in his brain, and multiple fractures to his face and the
orbital walls of his eyes. According to Dr. Liu, Pratt sustained a traumatic brain injury.
Neurosurgeons recommended an extra-peritoneal ventricular drain to drain fluids and
control pressure inside the skull. Pratt was then sent to the Intensive Care Unit.
Additionally, a chest x-ray showed some findings of emphysema, and, at some point,
Pratt developed ventilator-associated pneumonia.
Pratt was never taken off the ventilator or breathing tube, and he was never able to
eat or drink on his own, but rather used a feeding tube. On June 18, 2020, Pratt was
transferred to a long-term assisted care facility, as there were no further interventions that
the hospital could provide.
Officer Felipe Duran transported Pratt from the hospital to River Bend Nursing
Center. Pratt had “a bunch of tubes on him” and an oxygen mask, and he was “hooked to
machines” including breathing machines. Officer Chris Chavez participated in five or six
shifts observing Pratt at River Bend Nursing Facility. Chavez never saw Pratt alert,
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talking, or with his eyes open. Pratt “was in like a coma state. He couldn’t move.” On
the occasions when Officer Shamoiel observed Pratt at the hospital and at River Bend
Nursing Center, Pratt was never conscious.
On August 7, 2020, at approximately 6:45 p.m., Pratt stopped breathing. The
nurses called his time of death at 6:50 p.m.
Dr. Jason Tovar performed the autopsy on Pratt and testified as an expert in
forensic pathology. Internally, Dr. Tovar observed a bruise on the left side of Pratt’s
head above the ear. There was a subdural hemorrhage between the dura and the surface
of the brain, which had started to repair itself over weeks or months. This was evidence
of a traumatic event to the internal structures of Pratt’s head. The time frame of the
attack on Pratt on June 8 and Pratt’s death on August 7 were consistent with Tovar’s
observations. Dr. Tovar did not observe any damage to Pratt’s skull. He testified that, in
some cases, skull fractures could heal in a two-month timeframe. He also testified that
such fractures might escape detection in an autopsy “just because of how the autopsy’s
performed. We’re not getting that detailed.” Dr. Tovar acknowledged viewing a video
of the assault. His findings of bleeding on the brain were consistent with the assault that
Dr. Tovar viewed in the video.
Dr. Tovar concluded Pratt’s cause of death was blunt force injuries to the head.
Although Pratt lived for two months after the assault, and for 10 days after his ventilator
was removed, he was debilitated following the assault, he had a breathing tube and a
feeding tube, and he “never came back from that.” Dr. Tovar acknowledged he did not
send Pratt’s brain to a neurological pathologist because he found doing so unnecessary.
His condition was “incompatible with life … even though he lived for two months.”
Dr. Tovar acknowledged that Pratt had hypertensive cardiovascular disease, which
involves high blood pressure and enlargement of the heart. People can die from
hypertensive cardiovascular disease. Dr. Tovar acknowledged that, when someone dies
from a cardiac event, it can be very difficult to tell through an autopsy that a cardiac
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event was the cause of death. However, Dr. Tovar concluded that this was not a factor
contributing to Pratt’s death. Dr. Tovar did not see any evidence Pratt had experienced a
prior heart attack.
Dr. Tovar also observed lipid streaking, which develops from high cholesterol, and
a 30 percent coronary artery narrowing, “[p]robably not that significant….” This, too,
was not a factor contributing to Pratt’s death.
Pratt also had pulmonary emphysema. However, according to Dr. Tovar, most
people do not die from emphysema until it is in a very late stage “and they actually have
to walk around with an oxygen tank….” Dr. Tovar testified that emphysema was not a
factor contributing to Pratt’s death.
Dr. Tovar also agreed that being on a ventilator for an extended period of time can
cause ventilator-related pneumonia.
Dr. Tovar testified that these other conditions did not “trump that reason that he’s
in the state that he’s in.” It was Dr. Tovar’s opinion that Pratt’s death was caused by
blunt force injury to the head. Dr. Tovar acknowledged Pratt died of respiratory failure,
but he testified that “the underlying condition was the traumatic brain injury or the blunt
force trauma to the head, at which point, end-of-life care.”
II
The Defense
Officer Adam Ege testified that he did a bed move (cell change) for defendant on
June 7, 2020. He could not recall where he moved defendant or why. Ege was not aware
whether Pratt requested the cell change. Pratt seemed confused the night of the move.
Ege did recall that Pratt may have requested more medicine or claimed he did not get his
medicine.
Officer Ege testified that a “dead cell” is one where something does not work. For
example, the toilet or sink might not work, or the cell may have electrical issues.
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Typically, no one is moved into a dead cell. However, “in some cases of overcrowding,”
a dead cell might be used.
Defendant testified on his own behalf. When he arrived at Deuel, he had
approximately four months before his scheduled release. Pratt was his cellmate, and they
were cellmates for approximately two weeks. On a good day, Pratt was “manageable,” if
somewhat erratic. On a bad day, Pratt was temperamental, short-tempered, agitated, and
“hated everything going on.”
Pratt and defendant exchanged paperwork to learn more about each other. Pratt
had violence in his past, and he was in prison for violence. Pratt had been charged with
arson. He was investigated for an arson in which someone died, and “he got away with”
that one. That incident involved a fire in a homeless camp which he started when he
discovered that someone took his possessions. He committed another arson, for which he
was convicted. He was in Deuel because he tried to rob a boat shop employee at
knifepoint. Pratt kept a shank in the cell windowsill. At night, Pratt would stay up all
night, rummaging through the “junk” in his locker. This would keep defendant up.
The first issue that arose between defendant and Pratt occurred when defendant
went to the yard, but Pratt stayed behind. When defendant returned to his cell, he
realized that some of his coffee was gone. Defendant asked Pratt about it, and Pratt told
him he “was getting into [defendant’s] coffee while [he] wasn’t there.” Defendant told
Pratt not to do that, and Pratt apologized.
Late one night, approximately eight hours before the assault, defendant was
moved out of the cell he shared with Pratt. It had been a bad day for Pratt. He was acting
erratic and confused. At some point, Officer Ege pulled Pratt out of the cell. Then Ege
told defendant, “your celly just told me some weird shit. And for your safety and for his,
I got to move you.” Defendant collected his possessions and moved to a “dead cell” with
no running water. Ege told defendant they would figure things out in the morning.
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In the yard the next morning, defendant told Pratt he had forgotten his boots. Pratt
responded that, because defendant had left his boots in Pratt’s cell, they belonged to Pratt,
and he intended to sell them. Defendant warned Pratt that keeping his boots would be
considered thieving. Pratt took the remark as defendant accusing him of being a thief,
and said they would “knuckle up,” or fist fight, at recall, when they returned to their
housing block from the yard.
Viewing the surveillance video, defendant identified himself and an inmate named
Jacob. Yard recall had just been announced. Defendant testified that Jacob handed Pratt
an object. Defendant recalled seeing Jacob hand the object to Pratt at the time. The
object was a CD player with a plexiglass shank “butted up to” it with the headphone
wires wrapped around it. Defendant testified that this observation changed everything.
“That’s no longer a knuckle up”; there was a weapon involved. Defendant thought his
life was in danger. Once he saw the shank, “what he said was off the table. So … I did
what I had to do.”
Defendant punched Pratt and Pratt fell, still holding the CD player and shank.
Every time defendant hit Pratt, he told him to “Drop the fucking knife.” Defendant
repeatedly insisted he only hit Pratt with his right hand. With his left hand, he was
“watching … the inside of [his] legs” because he knew the inside of the leg is a vital spot
where one does not want to get stabbed. After a while, defendant got up, turned his back
to Pratt, and then went “back to prone over him. He still had it….” Defendant punched
Pratt, perhaps six more times. At some point, Pratt dropped the object and defendant
stopped hitting him, stood up, and kicked the object away. Defendant testified that he
was not trying to kill Pratt, but disarm him. Once Pratt was disarmed, defendant stopped
striking him and complied with officers’ commands that he get down on the ground.
Defendant acknowledged telling his mother on a prison call that “Everything is on
camera; they got us both fighting.” He also told his mother, “If that guy would have
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came back to his cell, … he was gonna get a knife, … so that’s why everything happened
on the yard….”
On redirect, defendant testified that he spoke English, Spanish, and Portuguese.
Sometimes, when speaking with his mother on the phone, he would speak Portuguese.
Defendant testified about one particular phone call in which he told his mother, in
Portuguese, that “he had a knife.” The transcript of the call stated, “speaking suspected
Portuguese.” He also told one of his sisters that “he had a knife,” again in Portuguese,
again the transcript stated, “speaking in Portuguese,” and the transcript then continued, in
English, “in his hand. So that’s going to help me out. I didn’t have one.”
III
The Prosecution’s Rebuttal
Lieutenant Daniel Robinson testified that there is a protocol when an inmate is
transferred out of a cell. A transfer request would have to be approved through the chain
of command. A corrections officer could not unilaterally move an inmate out of a cell
without approval of a sergeant.
In searching the yard after the assault, Lieutenant Robinson saw the CD player.
He did not find any plexiglass or anything that he would consider a weapon.
Officer Shamoiel testified that he listened to several of defendant’s prison calls.
The majority were in English, but about five percent of defendant’s conversations were in
a different language. Shamoiel never heard defendant say that he acted in self-defense.
Other than the portion of a call during which defendant told his mother that if Pratt went
back to his cell, he would get a knife, Shamoiel did not hear defendant talk about Pratt
having a knife. Nor did Shamoiel recall defendant saying that Pratt had a weapon during
the incident.
Brian Corralejo worked as an evidence officer in the Investigative Services Unit
and testified that evidence, evidence logs, and Excel spreadsheets from Deuel were
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transferred to Mule Creek State Prison when Deuel closed. He reviewed the evidence
logs and spreadsheets for evidence booked into Deuel’s evidence room in June 2020. A
June 16, 2020, entry indicated an inmate manufactured weapon located in culinary, not in
the yard, was booked into evidence. An inmate manufactured weapon not found in the
yard was booked into evidence on June 22, 2020. On June 23, 2020, six inmate-
manufactured weapons were booked. On June 27, 2020, an inmate-manufactured
weapon found in the yard was booked into evidence.
IV
Verdict and Sentencing
The jury found defendant not guilty of first degree murder, but guilty of second
degree murder. The trial court sentenced defendant to 15 years to life in state prison.
DISCUSSION
I
Pitchess Motion
A. Additional Background
Before trial, defendant filed a Pitchess motion seeking Officer Shamoiel’s
personnel records. In a memorandum of points and authorities, defendant claimed that
Shamoiel had “engaged in dishonesty.” In the supporting declaration, defendant’s
attorney stated that, as “part of his investigation, [Shamoiel] claims to have identified
four ‘confidential sources,’ which are inmates deemed reliable by Officer [Shamoiel]. In
sum, the confidential sources claim the fight between Mr. Almeida and Mr. Pratt was a
planned attack that had been approved by the internal inmate hierarchy.” The declaration
continued: “According to a confidential source, the statements of all four confidential
sources Officer [Shamoiel] spoke to are false. The defense questions whether there are in
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fact four confidential sources at all.” The declaration further stated that, at “the
preliminary hearing Officer [Shamoiel] admitted to being under investigation for causing
great bodily injury to an inmate, specifically for breaking the inmate’s leg. I believe
Officer [Shamoiel] was also under investigation for lying about that incident.” Defendant
filed a second, consistent, Pitchess motion.
In opposition, the prosecution argued that defendant had failed to show good cause
for the Pitchess discovery. According to the prosecution, defendant offered no factual
allegations to support a finding of good cause for disclosure of Officer Shamoiel’s
personnel records. Specifically, there was no allegation that Shamoiel misreported facts
in his reports. The prosecution emphasized that defendant did not claim that Shamoiel
fabricated his sources or lied in his report.
In oral argument before the trial court, defense counsel stated the defense sought
Officer Shamoiel’s personnel files “specific to acts of dishonesty…. He booked and
reviewed evidence and conducted multiple interviews as well. So that’s the basis of our
motion.” Defense counsel stated that Shamoiel “interviewed a number of witnesses,
some of whom were deemed confidential informants. So in the event that he was called
to testify, potentially, to impeach a CDCR [Department of Corrections and
Rehabilitation] inmate who has given a different version than what he alleged they said
previously, then Investigator Shamoiel’s veracity would become relevant at that point.”
The court sought to clarify, “that’s based on the fact that you have information that the
information he reported getting from inmates was not given to him or not accurate?”
Defense counsel responded, “That it’s falsified, essentially,” “[b]y the officer. It
wouldn’t be relevant if it was just an inmate lied to him, and he wrote it down.”
The prosecution argued that the mere allegation that an officer’s statements and
reports are false is insufficient to establish good cause. Defense counsel replied that “a
source has told me specific reasons why there is reason to doubt the veracity in this case.”
The prosecution then emphasized the information in the declaration supporting the
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Pitchess motion: “the only allegation, really, is that there is a confidential source that all
four confidential sources spoke, all their information was false. Other than that, the
defense questions whether there are confidential sources. But at no point in the
declaration does it specifically say that Officer Shamoiel was lying.” The prosecution
continued, regarding any claim that Shamoiel lied in his report, “he did not argue that in
his declaration, only mentioned that a confidential source informed them that statements
of the confidential sources that the officer spoke to are false, not that the report was
false.” Defense counsel responded, “I specifically state that, I believe, based on
information, that he was placed on administrative leave for lying about this specific
incident. And then at prelim, he had admitted that he was already under investigation by
CDCR.”
The trial court sought to clarify the claim in the declaration, stating, “according to
confidential sources, statements of all four confidential sources Officer Shamoiel spoke
to are false. [¶] So, if I’m reading that carefully, … it’s not a specific allegation that the
officer falsified a statement. It reads that the statements given to the officer by the other
individuals was false. The statements of all four confidential sources Officer Shamoiel
spoke to are false. So the way that the sentence reads, it reads as though the allegation is
the informants’ statements are false, not the officer’s reporting of them.” The court
stated, “to be able to grant it, … it needs to be really specific in saying that he lied about
what people told him, not what people told him is a lie.” The court stated that the way
the declaration read is that what informants told Shamoiel were lies. Defense counsel
agreed that he could “see that interpretation,” but argued that, in the context of the
motion, “the allegation is that the defense doesn’t know, specifically, who is not telling
the truth here.”
The trial court denied defendant’s Pitchess motion. The court stated that it did not
see any specific allegation of falsity that would satisfy the good cause standard, and that
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such an allegation would have to appear in the declaration for the court to grant the
motion.
B. Pitchess Motions and Standard of Review
Pitchess motions seek the “screening [of] law enforcement personnel files in
camera for evidence that may be relevant to a criminal defendant’s defense.” (People v.
Mooc (2001) 26 Cal.4th 1216, 1225, fn. omitted; see Pitchess, supra, 11 Cal.3d 531.) A
defendant seeking discovery of a peace officer’s confidential personnel record must file a
written motion describing the type of records or information sought (Evid. Code, § 1043,
subds. (a), (b)(2)), and include with the motion an affidavit demonstrating “good cause”
for the discovery and the materiality of such evidence relative to the defense (Evid. Code,
§ 1043, subd. (b)(3); Mooc, at p. 1226). “Good cause for discovery exists when the
defendant shows both ‘ “materiality” to the subject matter of the pending litigation and a
“reasonable belief” that the agency has the type of information sought.’ [Citation.] A
showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure
the production’ for trial court review of ‘all potentially relevant documents.’ ”
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) “A trial court’s
ruling on a motion for access to law enforcement personnel records is subject to review
for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.) A ruling
subject to the abuse of discretion standard of review “ ‘ “will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Aguirre
(2025) 18 Cal.5th 629, 687.)
C. Analysis
Defendant argues the trial court abused its discretion and violated his
constitutional rights in denying his Pitchess motion. He claims that he offered a
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“ ‘plausible scenario’ ” of officer misconduct that may have occurred, and he met the
relatively low threshold for a showing of good cause. We disagree.
Defendant’s Pitchess motion sought Officer Shamoiel’s personnel records,
alleging he engaged in dishonesty. Defense counsel’s declaration alleged, in part:
“According to a confidential source, the statements of all four confidential sources
Officer [Shamoiel] spoke to are false.” This is not an allegation that Shamoiel was
dishonest. On the contrary, as the trial court concluded, it is the statements of the
confidential sources that are claimed to be false. This is insufficient to demonstrate good
cause for Pitchess discovery.
The declaration also stated: “The defense questions whether there are in fact four
confidential sources at all.” This too is insufficient to demonstrate good cause for the
discovery based on a claim that Officer Shamoiel was dishonest. It does not constitute a
“plausible factual foundation” for the allegation that Shamoiel fabricated the confidential
sources. (Warrick, supra, 35 Cal.4th at pp. 1024-1026.)
Lastly, the declaration alleged: “I believe Officer [Shamoiel] was also under
investigation for lying about” an incident where he allegedly caused great bodily injury to
an inmate. This allegation, however, does not actually allege that Officer Shamoiel lied
about anything, and does not constitute a “plausible factual foundation” for any claim that
he did. (Warrick, supra, 35 Cal.4th at pp. 1024-1026.)
Defendant argues that, “ ‘[d]epending on the circumstances of the case,’ a
sufficient factual allegation in a Pitchess motion ‘may consist of a denial of the facts
asserted in the police report.’ ” (Uybungco v. Superior Court (2008) 163 Cal.App.4th
1043, 1049, quoting Warrick, supra, 35 Cal.4th at pp. 1024-1025.) But defendant’s
denial here related to the truthfulness of statements made by confidential sources, not
Officer Shamoiel. And the unsupported and equivocal statement that the “defense
questions whether there are in fact four confidential sources at all” does not expressly
allege Shamoiel was dishonest; it only questions the existence of the sources, and does
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not amount to a plausible factual foundation allowing us to conclude that denial of the
facts in Shamoiel’s report is sufficient to establish good cause.
Ultimately, the declaration does not contain any clear allegation that Officer
Shamoiel was dishonest or lied. Moreover, to the extent that it did, to hold that a “bare
‘the officer lied and will do so again’ allegation constitutes a plausible factual scenario of
officer misconduct warranting review of confidential personnel records would abrogate
the strong ring of protection the Legislature and courts have erected around peace officer
personnel records.” (Eulloqui v. Superior Court (2010) 181 Cal.App.4th 1055, 1069.)
Defendant is correct that corroboration of the occurrence of officer misconduct is not
required. (Warrick, supra, 35 Cal.4th at p. 1025.) However, what a “defendant must
present is a specific factual scenario of officer misconduct that is plausible when read in
light of the pertinent documents.” (Ibid.) Defendant did not do so here.
We conclude the trial court did not abuse its discretion or violate defendant’s
constitutional rights in denying defendant’s Pitchess motion based on his failure to satisfy
the good cause requirement.
II
Exclusion of Impeachment Evidence
A. Additional Background
Before trial, the prosecution moved to exclude impeachment evidence in the form
of Dr. Tovar’s testimony in an unrelated federal civil action. The case “involved
allegations of excessive force by the Elk Grove Police Department following the death
of” a decedent in custody. The prosecution described the circumstances of Dr. Tovar’s
testimony in that federal civil action as follows: “Dr. Tovar performed the autopsy on
Decedent and testified that Decedent died of cardiac arrest resulting from
methamphetamine intoxication…. At the start of his direct examination, Dr. Tovar
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testified that he viewed himself as independent, impartial, and unaffiliated with the
defense, plaintiffs, or Elk Grove Police Department. He also stated that he had met
defense counsel for the first time that morning and was testifying pursuant to subpoena.
Defense counsel emphasized Dr. Tovar’s impartiality in his opening statement and
closing argument, telling the jury that he and Dr. Tovar had never met. The jury
ultimately returned a verdict in favor of the defendants…. [P]laintiffs moved for a new
trial, arguing that defense counsel hired Dr. Tovar as a retained expert and intentionally
withheld this information, precluding plaintiffs from eliciting specific testimony and/or
making certain arguments regarding Dr. Tovar’s bias and credibility…. During this
hearing, Dr. Tovar testified that when he is contacted on the Sacramento County
telephone line regarding providing a deposition or trial testimony in certain types of cases
(i.e. civil) about an autopsy he has performed, he transfers the call or requests a call back
on his personal line where he then offers to consult and testify for a fee of $400 per hour
paid directly to him rather than to the County. Dr. Tovar stated that he provides
testimony in civil cases on his personal time and that this practice has been approved by
his superiors. He explained that the County bills a slightly lower amount for his work in
civil cases when done during regular business hours. Dr. Tovar further advised that he
would have charged the same $400 fee to plaintiffs’ counsel as well as any other litigant
requesting his testimony. Defense counsel confirmed that he signed an agreement
acknowledging Dr. Tovar’s customary fee in 2020. He advised the court that he did not
intend to utilize Dr. Tovar as a retained expert (and, in fact, disclosed him as a non-
retained expert); that he told Dr. Tovar that he was a non-retained expert; that he was
unaware that he could pay the County a lesser amount for Dr. Tovar’s services than what
he paid Dr. Tovar directly (and did not become aware of the lesser county rate until after
the trial); that he and Dr. Tovar had limited conversations prior to trial; that he directed
Dr. Tovar to rely solely on his own observations and findings and to not review any of
the reports generated by the retained experts in the case; and that Dr. Tovar was not
16
compensated until after he testified at trial. Additionally, while defense counsel had
apparently deposed Dr. Tovar in a prior case approximately four years prior to the …
trial, defense counsel did not recall doing so. The court denied plaintiffs’ motion for new
trial … , finding that Dr. Tovar was properly disclosed as a non-retained expert and that
there was not any materially false or misleading evidence in that regard presented during
trial. [¶] Plaintiffs appealed the denial of a new trial to the Ninth Circuit Court of
Appeals…. [I]n an unpublished memorandum, the Ninth Circuit opined that Dr. Tovar’s
testimony about his independence was false and misleading, citing the fee
acknowledgement, the limited communications between defense counsel and Dr. Tovar,
and payment of the fee by the City of Elk Grove following the trial. The Ninth Circuit
reversed the district court and remanded the case for a new trial.”
The prosecution argued this evidence was irrelevant, should be excluded under
Evidence Code section 352, and should be excluded because the Ninth Circuit Court of
Appeals’ determination concerning Dr. Tovar’s credibility was improper lay opinion. In
supplemental motions in limine, defendant moved to impeach Dr. Tovar’s credibility
with the Ninth Circuit’s decision.
In argument before the trial court, the prosecution first argued that a trial transcript
made clear Dr. Tovar was not untruthful in his testimony. Next, the prosecution argued
that the issue with Dr. Tovar’s testimony in the federal case had nothing to do with his
opinions in this case or his expertise and medical knowledge, but rather about whether he
was forthcoming about being paid in that case. Thus, Dr. Tovar’s testimony in the civil
case was not relevant, and its prejudicial effect would far outweigh any probative value.
Defense counsel responded that Dr. Tovar testified untruthfully in the federal case, which
is relevant to his credibility, and his credibility as an expert would be at issue here.
The trial court concluded that allowing this evidence would result in “a trial within
a trial.” The court continued: “There’s an argument both ways about whether Dr. Tovar
may have misled the jury; what the Court of Appeals thinks, … that’s not going to come
17
in; it’s not an issue that has to do with his actual expertise on a ruling about cause of
death. So I see it as an undue consumption of court time. It may be minimally probative,
at best. And, again, we’re going to get into a trial within a trial. So I’m not going to
allow the parties to impeach Dr. Tovar with that.”
Defense counsel then asked about questioning Dr. Tovar about the circumstances
of his resignation from his position in Sacramento County. Following a brief discussion,
the trial court stated: “My ruling remains the same.”
B. The Admission of Evidence and Standard of Review
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) “ ‘Relevant
evidence’ means evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.” (Evid. Code, § 210.)
“The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.)
An appellate court reviews the trial court’s admission of evidence under the abuse
of discretion standard. (People v. Helzer (2024) 15 Cal.5th 622, 667.)
C. Analysis
Defendant argues that the trial court erred by excluding this evidence, which was
directly relevant to Dr. Tovar’s credibility. We disagree.
In the unreported Ninth Circuit Court of Appeals opinion, that court concluded
that false testimony prevented the plaintiffs from fully presenting their case, and that Dr.
Tovar made statements at trial about his independence from the defendant that were false
or misleading. (Landeros v. Schafer (9th Cir., Apr. 19, 2024, No. 22-16866) 2024 WL
1693356; 2024 U.S. App. LEXIS 9483.) This could have some tendency in reason to
18
prove or disprove a disputed fact that is of consequence to the determination of the action
here, specifically Dr. Tovar’s credibility. (See Evid. Code, § 210; see also Evid. Code,
§ 780; People v. Contreras (2013) 58 Cal.4th 123, 152 [to “be relevant, evidence must
have some ‘tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action’ ”; this “includes evidence ‘relevant to the
credibility of a witness’ ”].) However, we note that, while this evidence might have some
bearing on Dr. Tovar’s credibility generally, as the prosecution argued, it would not be
relevant to Dr. Tovar’s medical expertise or medical opinions. And, contrary to
defendant’s contention, the Ninth Circuit did not find that Dr. Tovar “provided false and
misleading testimony regarding the cause of death,” but rather “about his
independence….” (Italics added.)
Although we conclude this evidence had some relevance, we further conclude that
the trial court did not abuse its discretion in determining that the probative value of this
evidence would be substantially outweighed by the probability that its admission would
necessitate undue consumption of time. (Evid. Code, § 352, subd. (a).) We also
conclude the probative value of this evidence was substantially outweighed by the
probability that its admission would create a substantial danger of confusing the issues or
of misleading the jury. (Evid. Code, § 352, subd. (b).)
The admission of this evidence would result in the parties delving into Dr. Tovar’s
federal trial testimony, his characterization of himself as independent and impartial and
the factual matters underlying that issue, and the Ninth Circuit Court of Appeals’
determination that Dr. Tovar’s testimony was false or misleading. Contrary to
defendant’s contention to the contrary, a reading of the People’s description of the
evidence in the trial court reproduced above, as well as the parties’ arguments about this
evidence in their appellate briefing, makes plain that the parties would have explored
several collateral issues in litigating this evidence. This would necessitate undue
consumption of time, giving rise to a trial within a trial, and would also create a
19
substantial danger of confusing the issues or of misleading the jury. (See Evid. Code,
§ 352; see also People v. Fuiava (2012) 53 Cal.4th 622, 723 [in excluding evidence of
civil lawsuit, the trial court acted within its discretion in concluding that “the trials within
a trial that would have resulted from the introduction of evidence concerning the merits
of the lawsuit or other supposed instances of misconduct by sheriff’s deputies would have
entailed an undue investment of time and might have unreasonably distracted the jury”].)
Defendant argues that he was “completely unable to challenge Dr. Tovar’s expert
opinion based on a prior court’s finding that he falsified his testimony and misled the jury
in the case.” While this may be true to an extent, Dr. Tovar’s opinion here pertained to
Pratt’s cause of death. Dr. Tovar was firmly of the opinion that Pratt died as a direct
result of defendant’s assault and the blunt force injury to Pratt’s head. Defendant was
able to, and did, challenge Dr. Tovar’s expert testimony concerning Pratt’s cause of
death, raising numerous other health issues including hypertensive cardiovascular
disease, lipid streaking from high cholesterol, emphysema, and pneumonia. Defendant
was not prohibited from challenging Dr. Tovar’s opinion on Pratt’s cause of death, only
from presenting impeachment evidence on Dr. Tovar’s testimony about his
independence, impartiality, and veracity in an unrelated federal action.
We conclude that the trial court did not abuse its discretion in excluding this
evidence. We further conclude that the trial court’s exclusion of this evidence, seeking to
impeach Dr. Tovar on a collateral, unrelated matter, constituted a “routine application of
state evidentiary law [that] [did] not implicate defendant’s constitutional rights.”
(People v. Brown (2003) 31 Cal.4th 518, 545, fn. omitted.)
20
III
CALCRIM No. 570
A. Additional Background
Defendant requested the jury be instructed with CALCRIM No. 570 on the
provocation/heat of passion theory of voluntary manslaughter, and the trial court agreed
to research the issue. In a subsequent appearance, defense counsel argued that defendant
witnessing the handoff of an item from another inmate to Pratt in the yard was a
provocative act causing defendant to act rashly and under the influence of intense
emotion. The prosecutor countered that this was not consistent with defendant’s
testimony. Rather, defendant testified he sought to disarm Pratt; there was no
provocation. The trial court declined to instruct the jury with CALCRIM No. 570,
concluding that substantial evidence did not support the instruction.
B. Instructing on Lesser Included Offenses and Standard of Review
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] …. ” [Citation.] That obligation has been held to include giving
instructions on lesser included offenses when the evidence raises a question as to whether
all of the elements of the charged offense were present [citation], but not when there is no
evidence that the offense was less than that charged.’ ” (People v. Breverman (1998)
19 Cal.4th 142, 154, disapproved on another ground in People v. Schuller (2023)
15 Cal.5th 237, 260, fn. 7.) The trial court is required to instruct on a lesser included
offense “whenever evidence that the defendant is guilty only of the lesser offense is
‘substantial enough to merit consideration’ by the jury.” (Breverman, at p. 162.)
“ ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of
reasonable [persons] could … conclude[]” ’ that the lesser offense, but not the greater,
21
was committed.” (Ibid.) An appellate court reviews “independently the question whether
the trial court improperly failed to instruct on a lesser included offense.” (People v.
Souza (2012) 54 Cal.4th 90, 113.) In doing so, we consider “the evidence in the light
most favorable to the defendant.” (People v. Campbell (2020) 51 Cal.App.5th 463, 501.)
C. Voluntary Manslaughter and Provocation/Heat of Passion
“ ‘Murder is the unlawful killing of a human being with malice aforethought.
[Citation.] A defendant who commits an intentional and unlawful killing but who lacks
malice is guilty of … voluntary manslaughter.” (People v. Breverman, supra, 19 Cal.4th
at p. 153.)
“Voluntary manslaughter is a lesser included offense of murder.” (People v. Cole
(2004) 33 Cal.4th 1158, 1215.) Voluntary manslaughter is the unlawful killing of another
without malice “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “ ‘A
murder … may be reduced to voluntary manslaughter if the victim engaged in
provocative conduct that would cause an ordinary person with an average disposition to
act rashly or without due deliberation and reflection.’ [Citation.] [¶] Heat of passion has
both objective and subjective components. Objectively, the victim’s conduct must have
been sufficiently provocative to cause an ordinary person of average disposition to act
rashly or without due deliberation and reflection. [Citation.] … [¶] Subjectively, ‘the
accused must be shown to have killed while under “the actual influence of a strong
passion” induced by such provocation. [Citation.] “Heat of passion arises when ‘at the
time of the killing, the reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of average disposition to
act rashly and without deliberation and reflection, and from such passion rather than from
judgment.’ ” ’ ” (People v. Enraca (2012) 53 Cal.4th 735, 758-759.) For “voluntary
manslaughter, ‘provocation and heat of passion must be affirmatively demonstrated.’ ”
(People v. Steele (2002) 27 Cal.4th 1230, 1252.)
22
D. Analysis
Defendant argues the trial court erred and violated his constitutional rights by
refusing to instruct the jury with CALCRIM No. 570. We disagree.
Defendant’s contends Pratt’s behavior in the two weeks leading up to the assault,
as well as in the moments immediately preceding the assault, cumulatively caused him to
be provoked and, as a result, act in the heat of passion. As a general matter, defendant is
correct that provocation for purposes of heat of passion may be caused by a series of
incidents over time. (See People v. Wharton (1991) 53 Cal.3d 522, 571 [trial court erred
in refusing to instruct the jury that provocation “could occur over a considerable period of
time”; the defense theory was that the defendant killed “after enduring provocatory
conduct by the victim over a period of weeks”]; CALCRIM No. 570 [“Sufficient
provocation may occur over a short or long period of time”]; see also People v. Ramirez
(2019) 40 Cal.App.5th 305, 308 [trial court properly rejected the defendant’s proposed
instruction that “ ‘Provocation sufficient to reduce murder to voluntary manslaughter may
accumulate over a period of time and may be based upon a series of acts’ ” because the
proposed instruction duplicated, but was less concise than, CALCRIM No. 570].)
The trial evidence established that defendant and Pratt were cellmates for
approximately two weeks. According to defendant’s testimony, defendant knew Pratt
had engaged in violence in the past. He knew Pratt kept a shank in the windowsill. Pratt
stole coffee from defendant. Pratt was acting erratic and confused the night before the
assault. According to defendant, Officer Ege transferred him to a different cell that night
for everyone’s safety after Pratt told Ege “some weird shit.” The next morning, Pratt
refused to give defendant his boots back and told defendant that they were going to
“knuckle up,” or fist fight, at yard recall.
As for the assault itself, after yard recall was announced, defendant saw another
inmate hand an object to Pratt. The object was a CD player with a plexiglass shank
“butted up to” it. Defendant testified he realized he was not just going to engage in a
23
fistfight. Rather, now there was a weapon involved. Defendant thought his life was in
danger.
After seeing Pratt receive the object, defendant “did what [he] had to do.” He hit
Pratt once or twice before Pratt fell. Defendant then got on top of Pratt and punched him
repeatedly. “[E]very time” defendant hit Pratt, defendant told Pratt to “[d]rop the fucking
knife.” According to defendant, while he struck Pratt with his right hand, he guarded his
thigh area with his left hand. Defendant then got up, turned his back to Pratt, and then
went “back to prone over him. He still had it….” Defendant punched Pratt, perhaps six
more times. At some point, Pratt dropped the object, and defendant kicked it away.
Defendant stopped striking Pratt and complied with officers’ commands that he get down
on the ground.
Focusing on the subjective component of heat of passion, defendant’s account
reflects a deliberate, reasoned, and considered course of conduct. It is not consistent with
defendant acting under “ ‘ “the actual influence of a strong passion” ’ ” or acting
“ ‘ “ ‘rashly and without deliberation and reflection, and from such passion rather than
from judgment.’ ” ’ ” (People v. Enraca, supra, 53 Cal.4th at p. 759.)
In People v. Moye (2009) 47 Cal.4th 537, the defendant bludgeoned the victim to
death with a baseball bat. (Id. at p. 540.) According to the defendant’s trial testimony, he
came upon the victim, whom the defendant initially mistook for the victim’s brother with
whom he had an ongoing conflict, the victim turned around, and the defendant noticed
the victim had a baseball bat. (Id. at p. 545.) The victim attacked the defendant with the
bat, hitting him several times, until the defendant managed to grab the bat. (Id. at
pp. 545-546.) The victim rushed the defendant to attack him, and the defendant struck
the victim with the bat. (Id. at p. 546.) The victim repeatedly came at the defendant, and
the defendant repeatedly hit the victim with the bat. (Ibid.) The defendant, who stated
that he was not “in the right state of mind,” continued hitting the victim with the bat until
the victim fell. (Ibid.) After the victim fell, the defendant stopped hitting him. (Ibid.)
24
The Supreme Court concluded: “no principle of law required the trial judge below to
disregard the evidence in order to find that the jury should consider whether defendant
subjectively killed in the heat of passion, when no substantial evidence supported that
theory of manslaughter, and the evidence actually introduced on the point—the
defendant’s own testimony—was to the contrary.” (Id. at p. 554.)
Here, as in Moye, “the thrust of defendant’s testimony below was self-defense—
both reasonable self-defense … , and unreasonable or imperfect self-defense….”
(People v. Moye, supra, 47 Cal.4th at p. 554.) As in Moye, here there “was insubstantial
evidence… to establish that defendant ‘actually, subjectively, kill[ed] under the heat of
passion.’ ” (Ibid.) In Moye, the defendant’s “only claim was that he acted out of self-
defense in using the bat to thwart [the victim’s] continuing advances. He provided a
blow-by-blow recounting of events in which he characterized every swing he took with
the bat as a defensive response to each of [the victim’s] successive advances.” (Ibid.)
Here, defendant recounted observing an object being handed to Pratt, and then
immediately striking Pratt, causing him to fall to the ground. Defendant testified that he
then repeatedly struck Pratt with his fist in an effort to disarm him. With each strike,
defendant ordered Pratt to “Drop the fucking knife.” Simultaneously, defendant used his
left hand to protect his thigh from attack. As in Moye, here, there is not substantial
evidence that defendant actually, subjectively, acted in the heat of passion. The case for
heat of passion would appear to be stronger in Moye, where the victim actually attacked
the defendant and struck him several times with a baseball bat (id. at pp. 545-546), and
where the defendant testified he was not “in the right state of mind” (id. at p. 546).
Defendant claims that he “responded in a rage and assaulted Pratt in a fit of anger”
when he discovered Pratt had and intended to use an object rather than just fistfight him.
However, we find in the record no evidence, let alone substantial evidence, to support
this characterization. Defendant emphasizes that, according to Sergeant Valeros, at the
end of the assault, as officers approached, defendant stood up, threw his hands in the air,
25
and “let out a Ric[] Flair ‘Woo.’ ” This is not substantial evidence that defendant acted in
the heat of passion.
As noted above, successive incidents over time can give rise to provocation for
purposes of heat of passion. However, leaving aside the issue of a “cooling off” period
(see People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139 [if “ ‘sufficient time has
elapsed for one’s passions to “cool off” and for judgment to be restored,’ malice is not
negated”]; see also CALCRIM No. 570 [including bracketed language on a “cool off”
period]), nothing in defendant’s account of the two weeks preceding the attack, including
his knowledge that Pratt had committed violent acts, Pratt acting erratically, Pratt stealing
his coffee, and Pratt refusing to return defendant’s boots and stating they were going to
“knuckle up,” constitutes substantial evidence that defendant acted in the heat of passion
as a result of Pratt’s alleged provocation.
We conclude the trial court did not err in declining to instruct the jury with
CALCRIM No. 570. In light of this conclusion, the court did not violate defendant’s
constitutional rights in refusing to give the jury this instruction.
IV
Response to a Jury Request for Clarification
A. Additional Background
On September 19, 2024, at 11:42 a.m., the jury submitted a note stating: “We…
have done our due deliberations. We are currently divided as eight for voluntary
manslaughter, two undecided and two for 2nd degree murder. [¶] How should we
proceed?” (Some capitalization omitted.) The trial court instructed the jury with
CALCRIM No. 3551, encouraging jurors to continue deliberations.
Later, at 2:08 p.m., the jury requested “clarification of implied malice in layman’s
terms.” (Capitalization omitted.) The trial court was unaware of the note until 3:30 p.m.,
26
and did not discuss it with the attorneys until the following morning. The court proposed
re-instructing the jurors with CALCRIM No. 520 on murder and malice aforethought, as
well as a paragraph from CALCRIM No. 200. The court also proposed allowing
additional argument before the jury. Both attorneys agreed with the court’s proposed
actions.
The trial court re-read CALCRIM No. 520, which, insofar as relevant to malice
aforethought, instructed the jurors: “the defendant is charged with murder. [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶] The defendant
committed an act that caused the death of another person; [¶] When the defendant acted,
he had a state of mind called malice aforethought; [¶] And he killed without lawful
excuse or justification. [¶] There are two kinds of malice aforethought: Express malice
and implied malice. Proof of either is sufficient to establish the state of mind required for
murder. [¶] The defendant had express malice if he unlawfully intended to kill. [¶] The
defendant had implied malice if: [¶] He intentionally committed the act; [¶] The natural
and probable consequences of the act were dangerous to human life in that the act
involved a high degree of probability that it would result in death; [¶] At the time he
acted, he knew his act was dangerous to human life; [¶] And he deliberately acted with
conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill
will toward the victim. It is a mental state that must be formed before the act that causes
death is committed. It does not require deliberation or the passage of any particular
period of time.”
The trial court also re-read a portion of CALCRIM No. 200: “Some words or
phrases used during this trial have legal meanings that are different from their meanings
in everyday use. These words and phrases will be specifically defined in these
instructions. Please be sure to listen carefully and follow the definitions that I give you.
[¶] Words and phrases not specifically defined in these instructions are to be applied
using their ordinary, everyday meanings.” The trial court then permitted each attorney
27
additional argument. Several hours later, at 1:42 p.m., the jury indicated it had reached a
verdict.
B. Forfeiture and Section 1259
A defendant forfeits a challenge to the manner in which a trial court responds to a
jury question by failing to request a different response or by agreeing with the response
proposed by the court. (People v. Davis (2009) 46 Cal.4th 539, 616-617; see also
People v. Dykes (2009) 46 Cal.4th 731, 802.) Here, defendant agreed with the trial
court’s proposed response. However, defendant argues that an objection was not required
where an instruction affected his substantial rights. (§ 1259.) In the alternative, he
argues that his trial attorney’s failure to object constituted ineffective assistance of
counsel. In light of his contention under section 1259 (see generally People v. Kopp
(2019) 38 Cal.App.5th 47, 66, fn. 12 [discussing applicability of § 1259 to a claim based
on the trial court’s response to a jury question concerning a jury instruction], affd. in part,
revd. in part on other grounds in People v. Kopp (2025) 19 Cal.5th 1; see People v.
Ramos (2008) 163 Cal.App.4th 1082, 1087 [“ ‘Ascertaining whether claimed
instructional error affected the substantial rights of the defendant necessarily requires an
examination of the merits of the claim—at least to the extent of ascertaining whether the
asserted error would result in prejudice if error it was’ ”]), and to forestall his ineffective
assistance claim, we address defendant’s argument on its merits.
C. Section 1138 and Standard of Review
“[S]ection 1138 imposes on the trial court a mandatory ‘duty to clear up any
instructional confusion expressed by the jury’ ” (People v. Lua (2017) 10 Cal.App.5th
1004, 1016). “ ‘When a jury asks a question after retiring for deliberation, “ … [s]ection
1138 imposes upon the court a duty to provide the jury with information the jury desires
on points of law.” [Citation.] But “[t]his does not mean the court must always elaborate
on the standard instructions. Where the original instructions are themselves full and
28
complete, the court has discretion under … section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for information.” ’ ” (Ibid.)
“[C]omments diverging from the standard are often risky. [Citation.] … But a court
must do more than figuratively throw up its hands and tell the jury it cannot help. It must
at least consider how it can best aid the jury. It should decide as to each jury question
whether further explanation is desirable, or whether it should merely reiterate the
instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
“An appellate court applies the abuse of discretion standard of review to any
decision by a trial court to instruct, or not to instruct, in its exercise of its supervision
over a deliberating jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
D. Analysis
Defendant argues the trial court’s response to the jury’s note requesting
clarification of implied malice was inadequate and violated his constitutional rights. We
disagree.
The record shows the trial court did “consider how it can best aid the jury.”
(People v. Beardslee, supra, 53 Cal.3d at p. 97.) It informed the attorneys that its
“inclination” was to re-read CALCRIM No. 520, as well as language from CALCRIM
No. 200, and then allow each counsel to present 10 more minutes of argument to the jury,
to be used as counsel saw fit. Both attorneys assented.
Contrary to defendant’s suggestion, the trial court did not effectively “throw up its
hands” or tell the jury that it could not help. (People v. Beardslee, supra, 53 Cal.3d at
p. 97.) The “trial court does not abuse its discretion when it determines the best way to
aid the jury is by directing the jury to reread the applicable jury instructions that ‘are
themselves full and complete.’ ” (People v. Lua, supra, 10 Cal.App.5th at p. 1017.) The
court determined this was the proper course here. While defendant emphasizes that the
jury appeared to be confused by the definition of malice, he does not argue that
29
CALCRIM No. 520 was not full and complete on the subject, or that it constituted an
incorrect statement of law. Additionally, the jury did not request further guidance, and it
reached a verdict hours after the court re-read CALCRIM No. 520 and portions of
CALCRIM No. 200, suggesting no further guidance was needed.
Defendant relies on People v. Loza (2012) 207 Cal.App.4th 332. There, the jury
inquired whether it should consider the state of mind of an aider and abettor whom the
jury may have believed was less culpable than the direct perpetrator. (Id. at p. 352.)
Specifically, the jury asked, “ ‘Concerning aiding + abetting does the state of mind of the
aider and abettor need/should be considered? If the person aids and abets because they
are worried about an attack from the perp[e]trator does tha[t] make a difference when
considering the degrees of murder[?]’ ” (Id. at p. 349.) The trial court responded,
“ ‘ “You must apply the evidence to the law as you have been instructed.” ’ ” (Ibid.) The
Court of Appeal concluded that the trial court failed to properly instruct the jury. (Id. at
p. 354.) “Although generally ‘[j]urors are presumed able to understand and correlate
instructions and are further presumed to have followed the court’s instructions’ [citation],
the jury’s questions demonstrate that the jury did not understand that the prosecution had
to prove [the aider and abettor’s] intent as an aider and abettor.” (Id. at pp. 354-355.)
The trial court did nothing to resolve the jurors’ confusion beyond telling them to “return
to the instructions that the court had previously given, and to apply the law to those
instructions.” (Id. at p. 355.)
The circumstances here are unlike those in Loza. Unlike the trial court in Loza,
the trial court here did not simply respond to the jury’s question by telling it to apply the
law to the evidence. It re-read CALCRIM NO. 520, which properly defined malice. It
re-read portions of CALCRIM No. 200 on interpreting words, both those with legal
meanings as defined in the instructions and those not specifically defined in the
instructions. The court permitted additional argument by the attorneys. And, unlike in
30
Loza, the jury’s note here did not affirmatively demonstrate a potential misinterpretation
or incorrect understanding of the controlling instruction; it merely sought clarification.
We conclude the trial court did not abuse its discretion or violate defendant’s
constitutional rights in its response to the jury’s request.
DISPOSITION
The judgment is affirmed.
\s\
KRAUSE, J.
We concur:
\s\
RENNER, Acting P. J.
\s\
MESIWALA, J.
31