P. v. Berumen
P. v. Berumen
Filed 1/27/14 P. v. Berumen
CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAFAEL
BERUMEN,
Defendant and Appellant.
B242701
(Los
Angeles County
Super. Ct. No.
GA080041)
APPEAL from a
judgment of the Superior Court of Los
Angeles County. Janice Claire Croft,
Judge. Affirmed.
Gordon S.
Brownell, 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, Senior Assistant Attorney
General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for
Plaintiff and Respondent.
______________________________
SUMMARY
Defendant
Rafael Berumen appeals from a judgment entered after a jury convicted him of
one count of murder in the first degree (Pen. Code, § 187, subd. (a)),
firearm allegations (§ 12022.53, subds. (b)-(d)). The jury did not reach a finding on the
alleged special circumstance that the murder was committed by means of lying in
wait (§ 190.2, subd. (a)(15)).
Appellant
was sentenced to a total term of 50 years to life in state prison based on a
term of 25 years to life for his murder conviction and a consecutive term of 25
years to life for the section 12022.53, subdivision (d), firearm enhancement.
Appellant
contends that the trial court prejudicially erred when it instructed the jury
that, as a matter of law, smirking or grinning is inadequate provocation to
reduce murder to manslaughter under a
any error was not prejudicial. We
affirm.
FACTS AND PROCEEDINGS BELOW
A.
Prosecution Evidence
Appellant dated
Maria Cristina Uribe Vargas (“Uribe Vargasâ€) for approximately four years prior to December 2009. Both had children from other partners, but
did not have children together. Uribe
Vargas had four children
of her own (two of whom were adults), and appellant had two adult children of
his own. All four of Uribe Vargas’s
children lived with her on the second floor of a two-story apartment building. Uribe Vargas’s brother, Francisco Uribe
(“Franciscoâ€), lived on the first floor in the same building. Uribe Vargas worked at Primo Foods in Monterey Park.
Uribe Vargas
testified that, in mid-2009, Uribe Vargas and appellant briefly broke up when
Uribe Vargas discovered that appellant was cheating on her with his coworker
Rosa. They reconciled, then broke up
again on December
24, 2009.
In the five months after their December 2009 break up, they both tried
to reconcile, but they never actually did. During this time, appellant continued to visit
Uribe Vargas’s home and family, with her permission, because he had developed a
close relationship with Uribe Vargas’s children and her daughter in particular.
Sometime after
December 2009 and before May 2010, appellant went to Primo Foods while Uribe
Vargas was working without Uribe Vargas having invited him. Uribe Vargas was surprised to see him there
and asked why he was spying on her.
Appellant said it was because Uribe Vargas was being unfaithful to him. Uribe Vargas told appellant that she was not
cheating on him because they were no longer in a relationship. She said that she could date someone else if
she wanted.
In April 2010,
Uribe Vargas met Jose Aguirre, who worked with her at Primo Foods. Uribe Vargas hosted an event at her apartment in
mid-April 2010 and both appellant and Aguirre attended. Uribe Vargas was not yet dating Aguirre at
that time, and she introduced him to appellant as a coworker.
In early May
2010, Uribe Vargas and Aguirre began dating.
Uribe Vargas did not tell appellant about the relationship because she
was fearful of how he would react.
On the evening
of May 13,
2010, appellant returned from a trip to San Antonio and
went to Uribe Vargas’s home. Appellant
brought information about apartments in San Antonio and
asked Uribe Vargas to move there with him.
They had never previously discussed moving to San Antonio
together, and Uribe Vargas found the conversation odd. Uribe Vargas told appellant that she would not
move with him and reminded him that they were no longer a couple. Uribe Vargas did not tell appellant that she
was dating someone new.
Appellant asked
Uribe Vargas if he could spend the night at her house because it was late and
he was not feeling well enough to drive.
Appellant lived 40 to 50 minutes away, so Uribe Vargas allowed him to
spend the night. Appellant slept on the
floor in Uribe Vargas’s bedroom while Uribe Vargas slept in the bed with her
daughter and son. Uribe Vargas and
appellant did not engage in any romantic activity that night.
The following
morning of May
14, 2010 at approximately 6:00 a.m., Uribe Vargas woke up to the sound her cell phone made when she
received a text message. Before Uribe
Vargas could check the message, appellant picked up her phone and looked at the
text message. The message was from
Aguirre and asked for a sign of life, which was a way of checking in on someone,
because Uribe Vargas had not answered her phone the night before when Aguirre
had called. Upon seeing the text
message, appellant started yelling at Uribe Vargas, accusing her of being
unfaithful and calling her a “prostitute.†Uribe Vargas and her children became
frightened. Uribe Vargas told appellant
to stop yelling and said the person who sent the text message was just a friend
and coworker. Appellant continued to
angrily yell at Uribe Vargas for about 20 minutes. Uribe Vargas’s two older sons told appellant
to stop insulting Uribe Vargas, but appellant refused. At one point, appellant began pulling Uribe
Vargas, and her oldest son hit appellant in the face, causing him to
bleed. Francisco, Uribe Vargas’s brother,
came into the apartment and appellant left with Francisco willingly. Appellant took Uribe Vargas’s cell phone with
him when he left.
Francisco testified
that he had been washing his car when he became aware of the altercation and
went upstairs to Uribe Vargas’s apartment.
Francisco did not hear what the argument was about but could hear Uribe
Vargas yelling and appellant talking to her.
Appellant appeared angry and had an injury to his face. Francisco said in a calm voice to appellant
“why don’t you leave†and appellant followed Francisco out of the
apartment.
Francisco
returned to washing his car. While
outside with Francisco, appellant called someone on the phone — Francisco did
not know who he dialed — and said, “‘Do you know who’s talking to you? I’m telling you take care of yourself because
I’m going to kill you.’†Appellant then hung
up. About three minutes later, appellant
again made a phone call and said, “‘Watch out because they’re going to kill
you’†and that “nobody was going to take his woman.†After each call, Francisco told appellant
that what he was doing was not all right, and appellant responded that “‘[n]obody
is going to take my woman.†Appellant’s
voice was a little louder than normal during the calls and threatening, but he
was not screaming. Appellant then got
into his car and drove away.
Appellant
returned to Uribe Vargas’s residence on foot at about 8:00 a.m. Uribe Vargas had a blue
Saturn that she purchased and used in her daily life. The car’s title and registration were in
appellant’s name. They both had keys to
the car. Appellant threw some of Uribe
Vargas’s things out of the blue Saturn, insulted her, and drove away. Appellant retuned about a half hour later in
the Saturn. He sent one of Uribe
Vargas’s sons to see if Uribe Vargas would speak with him, and she
refused. Appellant drove away again in
the Saturn.
At around 10:30 a.m., Francisco saw appellant return in his car to Uribe Vargas’s
apartment building and asked one of Uribe Vargas’s sons to see if she would
speak to appellant, but Uribe Vargas refused and appellant drove away.
Gelma Velazquez,
a manager at a Big 5 Sporting Goods store in Pomona, testified
that, at about 10:50
a.m., appellant was at her store and she assisted
appellant in purchasing shotgun shells.
She informed appellant that boxes of five were on sale and appellant
smirked and said in a joking manner that he only needed one shell. Appellant purchased two of the five-shell
boxes. Velazquez asked appellant if he
was going to use the ammunition on a small animal or a big animal; appellant
smirked and replied, “Well, you could say, you know, big animal.â€
Patricia Silva,
who was working at the reception desk of Primo Foods, testified that sometime
between 10:00 and 11:30
a.m.,
physical appearance came to the reception desk and asked if Aguirre was
there. Silva told the man that Aguirre
was not there and, when the man asked what time Aguirre would arrive at work,
Silva told him she could not give out that information. Silva found the question odd because the man
was not dressed like a vendor and usually a lot of vendors come in.
At about 1:30 p.m., Ivan Hernandez was driving into the parking lot next to Primo
Foods, where he worked. He saw Aguirre
driving toward the parking lot in the opposite direction from where Hernandez
was waiting to turn left into the parking lot.
A blue Saturn was tailgating Aguirre’s car as it turned right into the
Primo Foods parking lot. The Saturn continued
to drive straight and pulled over in a red zone in front of the parking lot.
Appellant exited
the Saturn and walked at a “fast pace†to Aguirre’s car. Another Primo Foods employee, Luis Rivera,
arrived at the parking lot and saw appellant “trying to wave [Aguirre] down to
stop the car.†Aguirre was driving
slowly and stopped when appellant reached the car. Appellant and Aguirre argued for about 20 to
30 seconds, with most of the angry words coming from appellant. Hernandez described appellant as appearing
“very agitated†and had “rage in his look†during the encounter while Aguirre “looked
kind of surprised.â€
Aguirre then continued
driving his car in the parking lot,
while appellant walked quickly back to the Saturn, making eye contact with
Rivera, and pulled out a shotgun from the trunk. Appellant put the shotgun to the right side of
his leg and started walking to the driver’s side of Aguirre’s car. Aguirre stopped his car again when appellant
approached this second time. Appellant’s
left side was facing Aguirre and it appeared appellant was carrying the shotgun
so as to hide it from Aguirre’s view.
Appellant and
Aguirre again exchanged words with Aguirre still looking surprised. Appellant took two steps back, raised the
shotgun, placed the barrel through the window and inside Aguirre’s car, and
squeezed the trigger. Aguirre raised his
left arm defensively, but the gun dry fired.
After the dry fire, Hernandez ran toward appellant, hoping he could
tackle him before appellant could fire a round. Hernandez made eye contact with appellant, and
appellant racked a shell into the chamber and fired at Aguirre from a couple of
feet away. Aguirre was struck in the arm
and his “flesh splatter[ed] all over inside the car.†Hernandez ran back behind his car to take cover. A few seconds later, appellant fired a second and immediately a
third shot, placing the barrel on the left side of Aguirre’s torso. Appellant then calmly and casually walked
back to the Saturn, making eye contact with Hernandez, and put the shotgun
through the driver’s side window and into the passenger side of the car.
made eye contact with Hernandez again and “saluted†Hernandez, as well as Rivera,
by raising his hand up to his forehead, then flicking it forward. Appellant got into his car, made a U-turn,
and drove away slowly.
Hernandez and
Rivera approached Aguirre’s car. Rivera
called out Aguirre’s name, and Aguirre looked toward him. Aguirre was having trouble breathing, then
stopped breathing. He still had his
seatbelt on and the engine was still running.
By the time police arrived, within minutes, Aguirre was dead. All three shots were fatal.
Appellant
returned to Uribe Vargas’s residence around 1:40 or 2:00 p.m. Appellant went to Uribe
Vargas’s apartment and knocked on the door. Uribe Vargas answered. Uribe Vargas described appellant as appearing
“tranquil.†He told Uribe Vargas, “I
already did it.†Uribe Vargas asked what
he had done, and appellant replied, “I killed him.†Uribe Vargas asked appellant what he was
talking about, and appellant said, “I shot him three times.†Appellant told Uribe Vargas that he had shot
“your Jose.†Appellant gave Uribe Vargas
the car keys and her cell phone, but told her not go to the car because there
were weapons inside, and said that he was going to surrender himself.
Francisco was
outside when he saw appellant walking up to the apartment building and
appellant showed Francisco a “rifle†in the blue Saturn. When appellant showed Francisco the shotgun,
he told Francisco, “I already did it,†“So what†and placed the shotgun back
into the trunk of the car. He seemed
calm.
Police arrived
at Uribe Vargas’s building while appellant was showing Francisco the shotgun. Appellant initially did not comply with
officers’ directions to put his hands up, instead pulling a handgun from his
waistband and telling police to shoot him because he did not want to go to
jail. Appellant ultimately placed his
gun on the ground and was arrested.
Three shotgun
shells were found in the Primo Foods parking lot. Each shotgun shell held nine pellets and each
pellet was bigger than the type of bullet loaded in appellant’s handgun and
would have been fired from the shotgun with more velocity than bullets would
have from the handgun; thus, a single fire from the shotgun was capable of
causing much more damage than a single fire from the handgun.
B. Defense Evidence
Tess Alexia
Nicole Cardenas had known appellant for about three years prior to May
2010. Cardenas and appellant worked
together at Walgreens, as well as socializing outside of work. Cardenas had never known appellant to be violent and believed he was kind,
helpful, and generous.
On January 31, 2011, Silva (the Primo Foods receptionist) was shown a photographic
lineup including a photograph of appellant but she was unable to identify the
person who visited Primo Foods and asked for Aguirre, stating that another
person in the lineup resembled the person who asked for Aguirre but that it had
been so long she could not remember.
Appellant
testified in his defense as follows: Appellant ran a security service for about 25
years and because of this owned numerous guns.
Appellant knew that a shotgun would cause more damage than a handgun.
Prior to May
2010, appellant and Uribe Vargas dated for about four years, the first three
and half years of which were “nothing but honeymoon.†They saw or spoke to each other every day,
and appellant took an active role in Uribe Vargas’s children’s lives. Possibly in June 2009, Uribe Vargas
misinterpreted a text message appellant received from a coworker named Rosa but appellant had not
cheated on Uribe Vargas with Rosa. After appellant and Uribe
Vargas had been together for about three and a half years, they began having
arguments about money, including an argument on Christmas Eve 2009 but did not
break up. According to appellant, Uribe
Vargas gave appellant a ride home, they had intercourse, and the relationship
continued.
In February
2010, appellant purchased the blue Saturn for Uribe Vargas after previously
purchasing a white car for her, but that car had recurring mechanical problems.
At the end of February and beginning of
March 2010, appellant had surgery and Uribe Vargas took appellant to the hospital,
visited him there, and allowed him to stay in her home for over two weeks after
his discharge. During that time,
appellant and Uribe Vargas argued about Uribe Vargas’s children and appellant
left Uribe Vargas’s home, at her request, around April 10. According to appellant, he continued to visit
Uribe Vargas and stay at her house for days at a time the two of them never
broke up and never agreed to date other people.
On April 24, 2010, appellant helped Uribe Vargas set up her home to host an event
where appellant met Aguirre. Aguirre
appeared to be trying to impress someone, and he and Uribe Vargas kept looking
at each other. Appellant became
suspicious that something was going on between Aguirre and Uribe Vargas. After Aguirre left, when appellant asked
about him, Uribe Vargas said he was just her coworker; appellant asked if
Aguirre was the coworker who had tried to date Uribe Vargas, and she said he
was. About a week later, after appellant
and Uribe Vargas had intercourse, appellant asked if Aguirre had asked Uribe
Vargas out again and she said he had not.
On May 7, 2010, after staying at Uribe Vargas’s house for three days, appellant
drove to San Antonio to visit his sister. They
never discussed breaking up. The day
before he left, he visited Uribe Vargas at Primo Foods during her lunch and
afternoon breaks, said goodbye and left flowers for Uribe Vargas in her car. While in San Antonio, appellant
spoke with Uribe Vargas on the phone every day.
Appellant
returned from San Antonio the evening of May 13, 2010 and called Uribe
Vargas, who was expecting him, when he was about an hour from her house. He arrived at Uribe Vargas’s house around 6:00 p.m. and they had dinner. He
brought his dirty laundry and gifts for the children, intending to spend the
night at Uribe Vargas’s house. Appellant
told Uribe Vargas that he had looked at apartments and job opportunities in San Antonio and
that he wanted her to move there with him. Uribe Vargas said it seemed like a good idea,
but she wanted to separate from appellant for 10 to 15 days to see if she
really loved him. Appellant was
surprised, but he agreed to a temporary separation on the condition that he and
Uribe Vargas would not date other people during the separation. Uribe Vargas told appellant that she had not
been dating anyone else yet, and she would not date anyone else during the
separation. After this agreement,
appellant and Uribe Vargas discussed taking Uribe Vargas’s children to San Antonio for a
vacation over the summer. They also
kissed and hugged.
Appellant spent
that night in bed with Uribe Vargas and began getting physically intimate
before hearing Uribe Vargas’s son wakeup, and then just kissed and hugged
instead. At about 6:00 a.m. the next morning, appellant heard Uribe Vargas’s cell phone ringing,
but Uribe Vargas did not wake up so appellant retrieved her phone and saw the
text message from Aguirre. Due to the
personal nature of Aguirre’s message and the early morning hour, appellant
became suspicious and woke up Uribe Vargas and asked if she was cheating on
him. Uribe Vargas said Aguirre was just
a coworker and she was not cheating on appellant, but appellant could tell she
was lying. Appellant stated that he was
really angry, but he did not say anything insulting to Uribe Vargas. Appellant began walking around the house,
picking up his belongings, while arguing with Uribe Vargas. He did not tell Uribe Vargas that he was
going to kill Aguirre, only saying to her, “You betrayed me. You’ve been cheating on me.†Appellant told Uribe Vargas’s son that he was
leaving, the son would have to start being the man of the house, and Uribe
Vargas was physically ill and should be hospitalized, angering Uribe Vargas. Her son struck appellant. Uribe Vargas repeatedly yelled at appellant
to leave and Francisco came into the house and also told appellant to leave. Appellant gathered the rest of his belongings
and left with Francisco.
Once he was
outside, appellant called Aguirre on Uribe Vargas’s phone. Appellant asked Aguirre if he knew who he
was, Aguirre said he did, and appellant told Aguirre he was going to kill him. Appellant testified that he did not actually
intend to kill Aguirre and made the statement because he was “very upset.†Appellant put his belongings into the car,
then called Aguirre again because he was so upset that Uribe Vargas had cheated
on him. Appellant again asked if Aguirre
knew who he was and repeated that he was going to kill Aguirre. After this second phone call, Francisco
offered appellant some water to wash the blood from his face, and appellant
washed his face and entered the white car, intending to find Aguirre. Appellant stated that he did not intend to
kill Aguirre; he just wanted to talk to him.
Appellant drove
to Primo Foods hoping Aguirre would be there, but after asking a man in the
parking lot if Aguirre was there, was told Aguirre was not. As appellant drove away, the car broke down
so he walked back to Uribe Vargas’s house. He ran into Uribe Vargas leaving and asked to
talk to her. Uribe Vargas said she would
talk to appellant after she took her daughter to school. When Uribe Vargas returned, appellant asked
her about Aguirre again. Uribe Vargas
again denied that anything was going on with Aguirre, but appellant could tell
she was lying.
Appellant then drove
the blue Saturn to the white car to make sure he had locked it and to transfer
his belongings to the Saturn. He did not
go back to Primo Foods and ask for Aguirre and never spoke with Silva. Instead, he drove to Big 5 Sporting Goods in Pomona, which was
on the way to his home, to purchase shotgun shells to go to a shooting range to
distract himself from Uribe Vargas’s betrayal.
Appellant’s only conversation with Velazquez was about the prices of
different boxes of shells and he did not tell Velazquez that he was going to
hunt a big animal or joke with her about only needing one shotgun shell. Appellant left the store and drove to his
house, loaded the shotgun and packed it and a handgun into the car because he
was going to use both at the shooting range.
As appellant
drove toward the shooting range, he could not stop thinking about Uribe Vargas
cheating on him, so he got on the freeway and headed back to Los Angeles to
speak with Aguirre. Appellant wanted to
know how serious Uribe Vargas and Aguirre’s relationship was and whether appellant
would have a chance to repair his relationship with Uribe Vargas. He drove to Los Angeles to
speak with Aguirre even though he knew Aguirre would not be working for a few
hours and did not call Aguirre because he did not think to do so or because he
believed it would be too easy for Aguirre to lie over the phone. Appellant stated he was very upset and had
forgotten about the guns in the trunk of the car.
Appellant drove
by the Primo Foods parking lot, seeing that Aguirre’s car was not there, and returned
to his white car, which was parked three or four blocks from Primo Foods, but still
was unable to start it. He intended to
return to Uribe Vargas’s house and talk with her again, hoping she would have
calmed down and would tell him the truth.
As appellant returned to the Saturn, he saw Aguirre drive by. Appellant followed Aguirre to the Primo Foods
parking lot and parked in front of the lot.
Appellant walked
into the parking lot toward Aguirre’s car and Aguirre got out of his car and
walked toward appellant. Aguirre was
grinning. Appellant “lost it†and became
very upset. A “brown dark circleâ€
suddenly appeared over Aguirre’s face. The
circle was the result of a disorder appellant suffered related to his diabetes.
Appellant was
too upset to say anything to Aguirre. He
went back to his car to leave, when he saw the trunk and remembered the guns
and thought “You’re not going to take my family away from me.†Appellant opened the trunk, took out the
shotgun and, without thinking of the consequences, walked toward Aguirre’s car
and fired the first shot. He fired
because Aguirre was going to take away his family and because appellant “wasn’t
thinking.†Appellant was going to shoot
Aguirre a fourth time, but he heard a voice ask him what he was doing and looked
to the right and saw someone hiding between some cars. Appellant began walking away toward his car
and started realizing what he had done and thinking over and over “what have I
done?†He did not wave at or salute the
witnesses in the parking lot. As he
realized what he had done, he wanted to die because it was the biggest mistake
of his life.
Appellant got
into the car and put the shotgun in the front seat and drove to Uribe Vargas’s
house. He told Uribe Vargas that he was
going to allow the police to kill him because he did not want to go to
jail. Appellant walked down the street
and sat on a bench, wondering how he had done what he did and felt like he was
in a trance. Appellant walked back to
the Saturn and took the handgun out of the trunk, planning to walk away with
the gun. He heard an officer tell him to
step away from the car and walked toward the middle of the street with the
gun. He believed one of the officers
would shoot him. Appellant did not
remember dropping the gun, only someone holding him on the ground before he
passed out and awoke in a patrol car.
C.
Conviction and Sentence
The jury convicted
appellant of first degree murder (§ 187, subd. (a)), finding to be true the
firearm allegations (§ 12022.53, subds. (b)-(d)). The jury was unable to reach a decision on
the alleged special circumstance that the murder was committed by means of
lying in wait (§ 190.2, subd. (a)(15)).
Appellant
was sentenced to a total term of 50 years to life in state prison based on a
term of 25 years to life for his murder conviction and a consecutive term of 25
years to life for the section 12022.53, subdivision (d), firearm enhancement.
DISCUSSION
Appellant
contends on appeal that the trial court committed prejudicial error when it
gave an instruction that, as a matter of law, smirking or grinning is
inadequate provocation for purposes of heat of passion theory. Appellant contends this error violated his
federal constitutional rights. While we
agree that the instruction was in error, we do not find it to be
prejudicial. Accordingly, we affirm.
A. The
Instruction on Provocation
During a
discussion on jury instructions after both parties had rested, the trial court raised
CALCRIM No. 570, the instruction on voluntary manslaughter. The following discussion then occurred:
“[PROSECUTOR]: Your Honor, I wanted to discuss that in light
of the testimony that we’ve heard.
“THE COURT: Sure.
“[PROSECUTOR]: Based on [appellant’s] testimony, it appears
that he testifies that he wasn’t provoked as a result of the text because he
says, look, I just want -- although I made these phone calls, he says he didn’t
really mean he wasn’t [sic] going to
kill Jose Aguirre. He’s not acting
rationally is what he tells the court.
“He says he went
to go look for Jose Aguirre just to talk to him, not to attack him. Not only once in the morning but that was his
purpose in the afternoon. And, really,
he says that when he decided that he wanted to kill Jose Aguirre was when Jose
Aguirre was standing face-to-face with him and grinned.
“And if the
court looks at the -- I think it’s -- let me have a moment here to flip through
that. I think it says in the bench notes
there’s case law that says grinning is not enough of a provocation. In the bench notes it reads in the following cases:
“Provocation has been found inadequate
as a matter of law. Evidence of
name-calling, smirking, or staring or looking stonefaced,†People vs. Lucas,
1997, 55 Cal.App.4th 739.
“And, certainly,
[appellant] testified that that moment when he decided he wanted to kill Jose
was when Jose Aguirre grinned at him. And so based on the case law, that would not
be sufficient provocation to elicit heat of passion.
“So I would
submit to the court.â€
The trial court
asked defense counsel for input and defense counsel responded, “Submitted, you
honor.†The court then stated that it
seemed that appellant had “testified to about being very upset†and defense
counsel agreed, saying “Right. That’s
the issue.†The court then explained:
“THE
COURT: He says -- he said from -- he
talked to [Aguirre]. He says I’m going
to kill you. I was really mad. I really wasn’t going to kill him. I called him a second time. I just couldn’t take it. I was really upset. I went to look for him. He talked some more. I wanted to go shoot him because I was really
upset.
“Somehow
shooting helps him get over his being upset.
I wanted to find out how long this affair was going on. I was very upset. He does say he had a grin on his face. I was really upset. I remember I had a shotgun. I walked to the car. I couldn’t see his face. I wasn’t thinking. I heard a voice. What are you doing? I’m sure that was somebody shouting at him.
“It just seems
that he was -- whether or not a jury finds that it was sufficient conduct to
rise to the level of voluntary manslaughter, I believed [sic] that he’s raised enough.
I believe it would be error not to give it.â€
The prosecutor then asked the court to give
a pinpoint instruction basically stating smirking or grinning is not sufficient
provocation and the court said it would do so if the prosecutor drafted such an
instruction. Later in the jury
instruction discussions, the court states to the prosecutor it was “going to
give that extra one about smirking, whatever the phrase you had,†and the court
will “put that under provocation, the definition.â€
Later that day,
the trial court instructed the jury on voluntary manslaughter based on heat of
passion using CALCRIM No. 570 with a pinpoint instruction drafted by the
prosecutor added (and indicated by italics):
“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.
inadequate provocation
for
purpose of heat of passion.â€
B. Analysis
On appeal, we apply a de novo standard
of review for claims of instructional error.
(People v. Manriquez (2005) 37
Cal.4th 547, 581; People v. Alvarez
(1996) 14 Cal.4th 155, 217.)
The Penal Code
defines murder as “the unlawful killing of a human being . . . with malice
aforethought.†(§ 187.) As relevant here, murder is in the first
degree if the killing was willful, deliberate and premeditated. (§ 189.)
Otherwise, it is in the second degree.
(§ 189.) Manslaughter is
defined as “the unlawful killing of a human being without malice.†(§ 192.)
Although generally the intent to unlawfully kill constitutes malice,
malice is presumptively absent when the defendant acts upon a sudden quarrel or
heat of passion on sufficient provocation.
(People v. Breverman (1998) 19
Cal.4th 142, 153-154; Manriquez, supra,
37 Cal.4th at pp. 583-584; see § 192, subd. (a).)
The heat of
passion requirement for manslaughter has both an objective and subjective
component. (Manriquez, supra,
307, 326-327.) “The defendant must actually, subjectively,
kill under the heat of passion.†Plus,
objectively, “‘“this heat of passion must be such a passion as would naturally
be aroused in the mind of an ordinarily reasonable person under the given facts
and circumstances.â€â€™â€ (
584.)
As the Supreme
Court has explained, “‘Although section 192, subdivision (a), refers to “sudden
quarrel or heat of passion,†the factor which distinguishes the “heat of passionâ€
form of voluntary manslaughter from murder is provocation.’†(Manriquez,
supra, 37 Cal.4th at p. 583.) Moreover,
as the Supreme Court has repeatedly stated, the provocative conduct may be
physical or verbal; no specific type of provocation is required. (People
v. Valentine (1946) 28 Cal.2d 121, 140 [resolving a split in authority as
to whether words of abuse, insult or reproach are of themselves sufficient to
incite the heat of passion by concluding it is a question of fact for the jury
to decide]; Manriquez,
supra, 19 Cal.4th at p. 163;
In certain circumstances, insults may be sufficient provocation under
section 192 and “the question is whether they would, either alone or combined
with other provocative circumstances, arouse a heat of passion in a reasonable
person.†(1 Witkin & Epstein, Cal. Criminal Law
(4th ed. 2012) Crimes Against the Person, § 236, p. 1081.) Nonetheless, the use of words commonly
employed to taunt another, however grievous, does not ordinarily drive a
reasonable person to such passion as would reduce an unlawful killing to
manslaughter. (Ibid.) Thus, courts have
held that gestures and words under the circumstances of a particular case are
not, as a matter of law, adequate provocation to support giving a heat of
passion instruction. (See, e.g.,
586; Lucas, supra, 55 Cal.App.4th at p. 739.)
Here, the
pinpoint instruction stated that, “[a]s a matter of law, smirking or grinning
is inadequate provocation for purpose of heat of passion.†The Attorney General argues that this
instruction is correct because “[g]rinning or smirking alone is necessarily insufficient provocative conduct†and although
the trial court did not explicitly state that it was grinning or smirking alone
that was insufficient, “that is the only way the jury could have interpreted
the pinpoint instruction.†The given
instruction, however, did not inform the jury that grinning or smirking “aloneâ€
or “by itself†was insufficient as a matter of law; rather it stated without
qualification that “[a]s a matter of law, smirking or grinning is inadequate
provocation for purpose of heat of passion.â€
However, even if
the pinpoint instruction was in error, defendant suffered no prejudice. Under People
v. Watson (1956) 46 Cal.2d 818, the verdict must be upheld unless it
appears “reasonably probable†the defendant would have obtained a more
favorable outcome had the error not occurred.
(Id. at p. 836.) By finding the appellant guilty of first
degree murder rather than second degree murder, the jury necessarily found
beyond a reasonable doubt all the elements of first degree murder, including
that appellant’s killing of Aguirre was deliberate and premeditated.
deliberate action, is manifestly inconsistent with having acted under the heat
of passion . . . .†(
572; People v. Carasi (2008) 44
Cal.4th 1263, 1306.) Accordingly, it is
not reasonably probable that appellant would have obtained a more favorable
outcome had the pinpoint instruction not been given and, therefore, appellant
was not prejudiced by the instruction.
For the same reason, to extent appellant raises federal constitutional
claims, we conclude that any error did not violate appellant’s rights.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
CHANEY,
Acting P. J.
We concur:
JOHNSON, J.
MILLER, J.
name="_ftn1" title=""> [1]
All subsequent statutory references are to the Penal Code.
Silva did not remember if the man came in the day of the shooting or the prior
day.
