Opinion
E051760 Super.Ct.No. FVI023973
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN ESCOBAR, Defendant and Appellant.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb, and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed with directions.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb, and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code.
Defendant Joaquin Escobar shot and killed Richard Avelar (Avelar), who was the former boyfriend of defendant's former girlfriend, Christina Pinto (Pinto). A jury convicted defendant of second degree murder with a firearm. (§§ 189, 12022.52, subd. (d).) The court sentenced defendant to a term 15 years to life, plus a consecutive term of 25 years to life for the use of a firearm.
Defendant argues on appeal that the court failed to instruct the jury correctly on the meaning of the term "provocation." We conclude there was no prejudicial error and affirm the judgment.
II
FACTUAL BACKGROUND
Pinto had known Avelar, the victim, for about 10 years. They were boyfriend and girlfriend beginning in the eighth year of their acquaintance. After Pinto and Avelar broke up, Pinto dated defendant for about eight months.
Pinto was a drug user and her relationship with defendant was volatile. Defendant had hit Pinto about 10 times, most recently about four weeks before the shooting, when he blackened her eye. Although Pinto and defendant had separated, she still loved him.
Pinto and Avelar continued spending time together. The night before the shooting, Pinto smoked drugs. She met Avelar at a bar and they both spent the night at Delia Aguayo's (Aguayo) house, which was a known drug den, in the company of a number of other people.
On the morning of March 27, 2006, everyone had been using methamphetamine except Avelar. Juan Carlos Larios-Oliva was asleep on the couch when defendant awakened him and kicked him. Pinto came out of a bedroom and was surprised to see defendant sitting on the couch. Defendant tried to talk to Pinto but she resisted. Defendant noticed Avelar and asked Pinto if he was her ex-boyfriend. Pinto responded, "Yeah, but it's not like you think. It's not what it looks like. Defendant became upset and tried to drag Pinto by the arm out of the room.
Avelar blocked the doorway and told defendant he could not leave with Pinto. Defendant responded, "What are you going to do about it, Dog?" Two witnesses said Avelar started to remove his shirt as if preparing to fight.
Suddenly, Pinto heard three or four shots and jumped on the couch. Other witnesses saw or heard defendant fire four shots at Avelar.
Defendant grabbed Pinto and walked her out of the house, keeping a gun pointed at Avelar who lay on the floor. As they walked to a car, defendant admitted to Pinto that he had shot Avelar so people would show him more respect.
Avelar died in the emergency room. He was shot in several places. The fatal injury was a gunshot wound to the right side of his chest.
Defendant testified he was Pinto's boyfriend. They had a volatile relationship and defendant had blackened Pinto's eye. Pinto had other boyfriends previously, including Avelar and a person called "Dreamer." Defendant had gone to Aguaya's house to buy methamphetamine. He carried the gun for protection, particularly against Dreamer.
Defendant was angry and jealous and wanted to talk to Pinto, who denied she was involved with Avelar. When defendant grabbed Pinto's arm, Avelar told defendant he was not going anywhere. Defendant thought Avelar was lifting his shirt to get a weapon. Defendant shot Avelar and saw him fall but defendant did not see any blood. Because defendant thought he had missed, defendant fired more shots, aiming toward the victim's feet.
Defendant denied forcing Pinto to leave. He also denied kidnapping her. Defendant fled to Mexico the next day.
III
DISCUSSION
The court gave the jury two instructions bearing on the meaning of "provocation." CALCRIM No. 522 applies to second degree murder or manslaughter:
"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."
CALCRIM No. 570 concerns the lesser included offense of voluntary manslaughter due to heat of passion (§ 192, subd. (a)) and provides:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.
"The defendant killed someone because of a sudden quarrel or in the heat of passion if:
"1. The defendant was provoked;
"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; "AND
"3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
"In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.
"If enough time passed between the provocation and the killing for a person of average disposition to 'cool off and regain his clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
The phrase "the defendant must have acted under the direct and immediate influence of provocation as I have defined it" refers back to the earlier conditions that "the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment" and "the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment."
The jury deliberated for about an hour on the first day. On the second day, at 2:10 p.m. the jury submitted a request for the "[d]efinition of the word 'provocation' other than what's on page 53." Page 53 of the jury instructions refers to CALCRIM No. 3150, concerning personal use of a firearm, and does not mention the word "provocation." The court recognized the jury's error and observed "they handed my bailiff . . . [CALCRIM No.] 522, provocation effect on degree of murder. And that is what I was going to instruct them on and tell them to look at, but it's apparent that 522 they don't understand." The court and the lawyers discussed what to do and everyone agreed the court would ask the jurors to clarify what they did not understand about the meaning of provocation. At 2:25 p.m. the court returned the jury's question with a notation, "Can you explain what it is about the word 'provocation' that needs defining?" The jury continued deliberating without any further inquiry about provocation. The jury reached a verdict at 10:33 a.m. on the third day.
Defendant argues on appeal that the court did not give the jury a definition of "provocation" which might have allowed the jury to find defendant guilty of voluntary manslaughter instead of second degree murder. This is demonstrably incorrect because the record shows the jury was instructed about provocation in CALCRIM Nos. 522 and 570. Provocation for voluntary manslaughter means acting rashly and under the influence of intense emotion obscuring reasoning or judgment and that which "would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.) The foregoing is consonant with other definitions, such as the one proposed by defendant: "'Provocation may be anything that arouses great fear, anger or jealousy. Webster's Dictionary defines it as follows: "To cause anger, resentment, or deep feeling in; to cause to take action; to stir action."'" (People v. Le (2007) 158 Cal.App.4th 516, 525.)
Defense counsel at trial acquiesced in the manner in which the court handled the jury's query, thereby waiving any issue on appeal. (People v. Marks (2003) 31 Cal.4th 197, 236-237.) Furthermore, the court did not fail in its mandatory duty under section 1138 to instruct the jury on legal principles, especially a pinpoint instruction on provocation. (People v. Rogers (2006) 39 Cal.4th 826, 866, 878-879.) The court did not "'figuratively throw up its hands and tell the jury it cannot help.'" (People v. Solis (2001) 90 Cal.App.4th 1002, 1015, citing People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court properly sought clarification from the jury but, in the meantime, the jury apparently resolved its confusion before reaching a verdict by finding defendant guilty of the lesser included offense of second degree murder.
Furthermore, there was no prejudice. (People v. Solis, supra, 90 Cal.App.4th at p. 1015.) The jury reached a verdict in less than two days, convicting defendant of the lesser offense of second degree murder, meaning the jury may have found the killing was not willful, deliberate, or premeditated or may have found some provocation occurred to mitigate the charge from first degree murder. But it was not reasonably probable the jury would have reached a verdict of voluntary manslaughter in view of defendant's admissions to Pinto and his testimony at trial that he was angry and jealous and he intentionally shot the victim multiple times. His subjective and irrational reaction to Avelar could not provide substantial evidence for a conviction for voluntary manslaughter instead of second degree murder. (People v. Moye (2009) 47 Cal.4th 537, 549-554.) Additionally, no state or federal constitutional error occurred where the trial court gave complete instructions, including the meaning of provocation, for murder and lesser offenses. (People v. Rios (2000) 23 Cal.4th 450, 461-470.)
IV
DISPOSITION
The court properly instructed the jury on the meaning of provocation. We affirm defendant's conviction for second degree murder. We order the abstract of judgment to be corrected to show the court imposed a term of 15 years to life, not a term of nine years for the second degree murder. The 25-year term for the enhancement remains unchanged.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
Ramirez
P.J.
Richli
J.