P. v. Egurrola
Filed 8/24/12 P. v. Egurrola
CA4/1
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
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COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff
and Respondent,
v.
GILBERT EGURROLA,
Defendant
and Appellant.
D060436
(Super. Ct. No.
SCD220411)
APPEAL from a judgment of the Superior
Court of
County, Joan P. Weber, Judge.
Affirmed.
A jury found Gilbert Egurrola guilty of first degree
murder (Pen. Code, § 187, subd. (a)) and kidnapping (Pen. Code, § 207, subd.
(a)). Egurrola challenges the murder
conviction, contending the homicide instructions taken as a whole, and the
standard CALCRIM No. 522 instruction in particular, were unconstitutionally
ambiguous with respect to the ability of provocation to reduce murder from
first to second degree. We reject this
contention and affirm the judgment.
FACTUAL
BACKGROUND
At the time of his death, Ralph Barrera was 81 years old
and lived in a downtown San Diego
residential facility for senior citizens operated by the Salvation Army. Several women visited Barrera from time to
time, and the building's security guard understood Barrera to have a sexual
relationship with those women. One of
the women that occasionally visited Barrera was Yolanda Diaz.
In 2009, Diaz was homeless and had known Barrera for
about 10 years. She kept some of her
belongings at Barrera's apartment and he sometimes gave her money. Though Diaz and Barrera had sex on one
occasion, she considered him a friend and in the past had declined Barrera's
requests to be his girlfriend and to marry him.
By April 23,
2009, Diaz had been dating Egurrola, who was 25 years old and also
homeless, for three to four months.
Egurrola had told Diaz he loved her, and Diaz had said the same to
Egurrola, though she did not actually feel that way. Egurrola had met Barrera twice before while
accompanied by Diaz, but Diaz never told Egurrola that she had sex with
Barrera. On April 23, Diaz and Egurrola
went to Barrera's apartment, planning to stay for two days, then go to
Mexico. While staying with Barrera, Diaz
planned to pick up some of her belongings and get money from him. When they arrived at Barrera's apartment,
Theresa Araiza, a friend of Barrera who was staying with him for a short time,
was also at Barrera's apartment.
The following morning, Barrera went to the bank to get
Diaz some money. When Barrera returned,
he and Egurrola went to a store to buy beer.
On the way back to Barrera's apartment, they ran into a homeless
acquaintance of Egurrola named Salvador Padilla. Barrera invited Padilla back to his
apartment, offering to let him shower there.
Padilla accepted and accompanied the men to Barrera's apartment.
Upon returning to Barrera's apartment, Barrera, Egurrola,
Diaz, and possibly Padilla,
name="_ftnref1" title="">[1]
began drinking. The group drank for a
couple of hours. At one point, Diaz sat
on Barrera's lap. Barrera was
intoxicated and began rubbing Diaz in a sexual manner. Egurrola appeared unhappy about it, but did
not say anything. Araiza left the
apartment because she was uncomfortable with the tension between Barrera, Diaz,
and Egurrola. Araiza planned to return
in a couple days once Diaz and Egurrola were to have departed.
Tension continued to build between Barrera and
Egurrola. At one point, Barrera asked
Diaz, "Are you with him or are you with me?" Egurrola appeared angry and responded,
"She's with you," then pushed Diaz closer to Barrera. Around this time, Padilla left the room to
take a shower.
Padilla was in the bathroom for roughly five to 15
minutes before returning to the living room to ask Barrera if he could use a
certain towel. As Padilla was returning,
he heard Egurrola ask Barrera from the kitchen if Barrera had any coffee. Barrera responded from the living room,
"I told you I don't have any coffee.
I've got tea." Egurrola
asked if he could make some tea and Barrera responded that he could.
After Egurrola and Barrera's
exchange about coffee and tea, Padilla asked Barrera, who was sitting on the
couch, if he could use the towel. As
soon as Barrera responded, Egurrola came from the kitchen and lunged at Barrera
with a kitchen knife. Egurrola jumped on
top of Barrera and repeatedly swung the knife at and around Barrera's
neck. Barrera plead for Egurrola to
stop, but Egurrola continued. Diaz
became hysterical and started to cry.
Padilla was scared and did not know what to do, eventually running to
the bathroom to put his clothes back on before returning to the living room
where Egurrola was still attacking Barrera with the knife.
Egurrola ordered Padilla to help him move Barrera to the
bathroom, but Padilla refused. This
upset Egurrola who then threatened to kill Padilla if he moved. Egurrola moved Barrera to the bathroom
himself, dragging Barrera by the arms.
At this point, Barrera was still protesting but had mostly stopped
struggling against Egurrola. Egurrola put
Barrera in the bathtub and ordered Padilla and Diaz into the bedroom adjacent
to the bathroom so he could watch them.
Egurrola claimed he had a gun and would shoot either Padilla or Diaz if
they tried to do anything. Once Barrera
was in the bathtub, Egurrola resumed his attack with the knife.
Egurrola subsequently confronted Padilla and Diaz in the
bedroom. Egurrola swung the knife at
both Padilla and Diaz, but it did not touch either of them. At that time, Barrera tried to get out of the
bathtub, and Egurrola returned to the bathroom.
Barrera pleaded to Egurrola, "Please let me die in peace. Let me talk to my kids." Egurrola responded, "Why don't you just
shut the fuck up and die in peace."
Egurrola then stabbed Barrera more, again focusing around the neck.
Soon thereafter, Egurrola took
Barrera's wallet, money, and cards, cut the phone line, and told Padilla and
Diaz to gather their possessions.
Egurrola then led Padilla and Diaz out the back of the building,
threatening that if they did not go with him, he would kill them.
The next day, a friend of Barrera's entered the
apartment, found Barrera dead in the bathtub, and reported it to the
police. Barrera had suffered numerous
cuts to his neck, including two deep incised wounds and one stab wound that cut
his carotid artery, almost severing it completely. Barrera also suffered cuts to his hands,
wrists, and forearm consistent with defensive wounds.
The prosecution's theory of the case was that Egurrola
committed first degree, premeditated murder.
The defense theory was that Egurrola was not the killer, but even if he
was, he committed voluntary manslaughter, reduced from murder by
provocation. From the instructions, the
jury also had the option to convict Egurrola of second degree murder in the
event it found imperfect provocation. A
conviction of voluntary manslaughter in this case would be based on provocation
that would cause a reasonable person to act rashly and without due
deliberation. A conviction of second
degree murder in this case would be based on provocation that caused Egurrola
to act rashly and without due deliberation, but would not cause a person of
average disposition to act that way. The
jury found Egurrola guilty of first degree murder. Egurrola filed a timely appeal.
DISCUSSION
The court instructed the jury on homicide generally, the
requirements for first degree and second degree murder, the potential
mitigating effect of provocation, and the lesser charge of
passion homicide. On appeal, Egurrola
contends the instructions on provocation as related to first versus second
degree murder were ambiguous and it is reasonably likely those instructions led
the jury to believe (1) it must apply an objective standard or a standard of
its own creation to assess whether provocation was sufficient to negate
premeditation and deliberation, and (2) it could disregard evidence of
provocation entirely.
name="_ftnref2" title="">[2]
I
Following a claim of ambiguous jury instructions, we
assess "whether there is a reasonable likelihood that the jury
misunderstood and misapplied the instruction." (People
v. Smithey (1999) 20 Cal.4th 936, 963.)
In this assessment, we consider the instructions as a whole rather than
analyze each instruction or any part of an instruction individually. (Ibid.) We assume the jurors are intelligent persons
capable of integrating the instructions and understanding each in the context
of the others. (Hernandez, supra, 163 Cal.App.4th at p. 1332.) To assess the likely interpretation of the
instructions by the jury, we also consider the arguments of counsel relevant to
the instructions and charges at issue. (
1202.) A court that adequately instructs
the jury on the law has no duty to give clarifying or amplifying instructions
absent a request from counsel. (
To evaluate Egurrola's claim of instructional error, we
first summarize the law regarding the three grades of homicide applicable to
this case. We then consider the
instructions given to the jury from the court and counsel's statements to the
jury regarding the charges at issue to determine how a reasonable jury would
likely interpret the law. Finally, we
determine whether the instructions, as likely understood by a reasonable juror,
correctly state the law.
II
"First degree murder is an
unlawful killing with malice aforethought, premeditation, and
deliberation. [Citation.] Malice may be express (intent to kill) or
implied (intentional commission of life-threatening act with conscious
disregard for life). [Citation.] Second degree murder is an unlawful killing
with malice, but without the elements of premeditation and deliberation which
elevate the killing to first degree murder.
[Citation.] To reduce a murder to
second degree murder, premeditation and deliberation may be negated by heat of
passion arising from provocation.
[Citation.] If the provocation
would not cause an average person to experience deadly passion but it precludes
the defendant from subjectively deliberating or premeditating, the crime is
second degree murder. [Citation.] If the provocation would cause a reasonable
person to react with deadly passion, the defendant is deemed to have acted
without malice so as to further reduce the crime to voluntary
manslaughter. [Citation.]" (Hernandez,
supra, 163 Cal.App.4th at p. 1332.)
III
A
Here, the jury was instructed that murder and
manslaughter are homicides, murder being the crime charged and manslaughter being
a lesser offense. (See CALCRIM No.
500.) The jury was then instructed with
CALCRIM No. 520 that first and second degree murder both require malice
aforethought, that malice could be express or implied, and that if the jury
decided the defendant committed murder, it must decide whether it was in the
first or second degree. Next, the jury
was instructed that the defendant was guilty of first degree murder only if he
acted willfully, deliberately, and with premeditation, and that all other
murders are second degree murders.
(CALCRIM No. 521.)
name="_ftnref3" title="">[3] The court continued instructing with CALCRIM
No. 521, specifying that willfully means the defendant intended to kill,
deliberately means the defendant weighed the considerations for and against his
choice and acted knowing the consequences of his decision, with premeditation
means the defendant decided to kill before completing the act which caused
death, and a "decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated."
The jury was subsequently instructed with CALCRIM No.
522, an instruction titled "Provocation:
Effect on Degree of Murder," as follows:
"Provocation may reduce a murder from first degree
to second degree and may reduce a murder to manslaughter. The weight and significance of the
provocation, if any, are for you to decide.
[¶] If you conclude that the defendant committed murder but was
provoked, consider the provocation in deciding whether the crime was first or
second degree murder. Also, consider the
provocation in deciding whether the defendant committed murder or
manslaughter."
Finally, the jury was instructed on voluntary
manslaughter in the language of CALCRIM No. 570 that a homicide that would
otherwise be murder is reduced to voluntary manslaughter if it was committed
because of a sudden quarrel or in the heat of passion. The instruction stated that a homicide
resulted because of a sudden quarrel or in the heat of passion if "(1)
[t]he defendant was provoked; [¶] (2) [a]s a result of the provocation, the
defendant acted rashly and under the influence of intense emotion that obscured
his reasoning or judgment; [¶] [and] [¶] (3) [t]he provocation would have
caused a person of average disposition to act rashly and without due deliberation,
that is, from passion rather than from judgment." The instruction continued, specifying that
the provocation was to be judged from the objective standard of a person of
average disposition and should take into account whether the amount of time
between the provocation and the killing would have allowed a person of average
disposition to " 'cool off' and regain his or her clear reasoning and
judgment . . . . ' " (CALCRIM
No. 570.)
B
After the court instructed the jury,
counsel had the opportunity to give closing remarks. During its closing statement, the prosecution
differentiated first degree murder from second
degree, and murder from manslaughter.
After discussing how the evidence fit the first degree murder
requirements of being willful, premeditated, and with deliberation, the
prosecution specified that the defendant's decision was not rash or impulsive,
noting that a "decision made rashly, impulsively or without careful
consideration is not premeditation and deliberation." The prosecution then discussed the
requirements for voluntary manslaughter before giving the following argument of
why voluntary manslaughter does not fit this case:
"There's no provocation in this case. [¶]
Maybe there's a couple things that made the defendant jealous, and that
was his motive for doing it. [¶] His motive, you don't have to understand that
or think it's reasonable. It's his
motive. [¶] But for provocation, a person of average
disposition would have had to have reacted rashly, as well. [¶] So
what happened that would have made the defendant's deliberate attack under the
direct and immediate influence of provocation?
[¶] Look at the evidence and
you'll see nothing. [¶] Is that how a person of average disposition
would react? Is there anything about
this evidence that would suggest to you that a person of average disposition
would have killed Mr. Barrera in the way that the defendant killed him? [¶]
You'll find nothing."
Egurrola contends that CALCRIM No. 522, the only
instruction given explicitly addressing the relationship between provocation
and the degrees of murder, was improperly ambiguous regarding whether an
objective or subjective standard should be used to assess whether the
provocation was sufficient to reduce murder from first to second degree. Further, because outside of CALCRIM No. 522
provocation was addressed only by CALCRIM No. 570 and the prosecutor, and then
only as an objective test to reduce murder to voluntary manslaughter, Egurrola
claims a reasonable jury would likely infer an objective test is also to be
used when determining whether provocation reduces a murder from first to second
degree.
IV
A
Preliminarily, we note that in People v. Rogers (2006) 39 Cal.4th 826, 877-880, our Supreme Court
specifically rejected the contention that a trial court must sua sponte
instruct the jury that provocation insufficient to reduce murder to
manslaughter may still be sufficient to reduce first degree murder to second
degree. The court reasoned that such an
instruction would be a "pinpoint instruction" as it relates
particular facts to a specific legal issue (here, whether provocation prevented
Egurrola from premeditating and deliberating) to "pinpoint" a
potential defense theory. (
provocation instruction specifically relating to reducing first degree murder
to second degree did not mislead the jury "because the jury is told that
premeditation and deliberation is the factor distinguishing first and second
degree murder." (
giving manslaughter instructions on provocation without second degree murder
instructions on provocation, the Rogers
court stated that "the manslaughter instruction does not preclude . . .
the jury from giving weight to any evidence of provocation in determining
whether premeditation existed." (
In Hernandez,
supra, 183 Cal.App.4th at pages 1333 to 1334, we determined that a
reasonable jury instructed with CALCRIM No. 521 and CALCRIM No. 522 would
interpret those instructions together to mean that provocation can cause a
person to make a rash and impulsive decision to kill. As the jury was instructed that a rash and
impulsive decision to kill was not first degree murder because it was not made
with premeditation and deliberation, a jury could not logically apply those
instructions, find provocation, and then convict a defendant of first degree
murder. If it found provocation, the
jury's only remaining question would be whether the homicide was second degree
murder or voluntary manslaughter.
CALCRIM No. 570 serves to clarify that question.
CALCRIM No. 570 emphasizes that provocation only reduces
murder to voluntary manslaughter if it would cause a person of average
disposition to act rashly and without deliberation. CALCRIM No. 522, however, instructs the jury
to consider provocation both in reducing murder to voluntary manslaughter and
in reducing first degree murder to second degree. A reasonable jury would not infer that the
same objective standard should apply in both cases. Such an inference would not allow for
provocation to reduce a first degree murder to second degree without further
reducing it to voluntary manslaughter, an interpretation in direct conflict
with the plain direction of CALCRIM No. 522.
Given the objective standard used to reduce murder to manslaughter and
the instruction that the difference between first and second degree murder is
whether the defendant acted with premeditation and deliberation, the logical
conclusion is the correct one: that
reducing first degree murder to second degree depends on provocation of the
specific defendant and whether it caused him to act without due premeditation
and deliberation.
B
Egurrola's contention that the prosecutor's closing
remarks conflated the two acceptable uses for provocation also fails. Egurrola's argument is essentially that the
prosecutor emphasized that there was no provocation because a person of average
disposition would not have been provoked to kill Barrera, and by doing so led
the jury to believe provocation should only be judged from the objective
standpoint of a person of average disposition.
Taken in context, however, those remarks were directed solely at whether
the jury should return a verdict of voluntary manslaughter. The prosecutor had already discussed the
difference between first and second degree murder, doing so in the same
language as the jury instructions, i.e., emphasizing that since Egurrola did
not act rashly, but rather acted with premeditation and deliberation, the jury
should find him guilty of first degree murder.
In short, nothing in the prosecutor's argument misstated the law or
implied that provocation insufficient to reduce murder to voluntary manslaughter
could still have prevented Egurrola from acting without premeditation and
deliberation, thereby reducing first degree murder to second degree. As there is no requirement for the court to
provide pinpoint instructions highlighting a defense theory, there is certainly
no obligation on the prosecutor to do so.
C
Egurrola further contends that the language of CALCRIM
No. 522 allows the jury to elect its own standard for applying provocation, or
to disregard evidence of provocation entirely.
Specifically, Egurrola notes that the instruction states provocation
"may reduce" the degree of murder and it is up to the jury to decide
the "significance of the provocation, if any." We considered and rejected a similar claim in
Hernandez, determining that the most
likely interpretation of the instruction to decide the "significance of
provocation" was whether the provocation was sufficient "to create a
doubt as to whether the offense was deliberate, premeditated first degree
murder rather than a rash, impulsive second degree murder." (Hernandez,
supra, 183 Cal.App.4th at pp. 1334-1335.)
Here, the significance of the provocation was also relevant to whether
the jury should find second degree murder or voluntary manslaughter. Similarly, the modifiers "may reduce"
and "if any" do not give the jury complete discretion on whether and
how to apply evidence of provocation once the jury finds it. Rather, they instruct that it is for the jury
to determine whether the evidence shows provocation at all and, if so, whether
it was sufficient to cause either a person of average disposition or the
defendant to act rashly as opposed to deliberately and with premeditation.
The trial court did not err in instructing the jury
regarding the potential role of provocation.
A reasonable jury was not likely to infer that the jury instructions,
read as a whole and in light of counsel's arguments, required provocation to be
considered only from the perspective of a person of average disposition or that
evidence of provocation could be ignored in its entirety.
V
Egurrola also brought a tentative claim for ineffective
assistance of counsel in the event we declined review of the instructional
issue. Because we have evaluated the
merits of Egurrola's instructional claim, we assume he does not submit the
ineffective assistance of counsel claim.
However, even if Egurrola still wishes to pursue that claim, we are
presented with an insufficient record to evaluate it on the merits. The record does not shed light on counsel's
reasons, if any, for the arguments made or not made in Egurrola's defense. For that reason, if Egurrola wishes to pursue
a claim of ineffective assistance of counsel, he should bring it by writ of
habeas corpus in the superior court.
(See People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.)
DISPOSITION
The judgment is affirmed.
HUFFMAN,
Acting P. J.
WE CONCUR:
McDONALD, J.
IRION, J.
Padilla testified that he did not
drink that day, but other witnesses testified that he drank with the others.
Although during trial defense
counsel did not object to the instructions as given, we decline to find
forfeiture of the instructional issue on appeal because if the trial court did
provide misleading instructions to the jury, that error would affect the
defendant's substantial rights. (
1315, fn. 43; People v. Hernandez
(2010) 183 Cal.App.4th 1327, 1331, fn. 2 (Hernandez).)
