People v. Pimentel

Full title: THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO PIMENTEL, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Apr 21, 2017

No. E063608 (Cal. Ct. App. Apr. 21, 2017)

Opinion

E063608

04-21-2017

THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO PIMENTEL, Defendant and Appellant.

Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Theodore M. Cropley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

FIELDS J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB905248) OPINION APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed with directions. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Theodore M. Cropley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant and appellant, Marco Antonio Pimentel, of first degree murder (Pen. Code, §§ 187, subd. (a), 189),¹ possession of a firearm by a felon (§ 29800, subd. (a)(1)), and possession of ammunition by a felon (§ 30305, subd. (a)(1)).² The jury also found defendant had personally and intentionally discharged a firearm, causing death, with respect to the murder count. (§ 12022.53, subd. (d).) The court found true that defendant had suffered a prior strike and prior serious felony conviction and had served two prior prison terms. (§§ 667, subds. (a), (b)-(i), 667.5, subd. (b)(1), 1170.12, subds. (a)-(d).) It sentenced him to a determinate prison term of 16 years plus 75 years to life in prison.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The first amended information charged defendant with the possession offenses under former versions of the statutes—former section 12021, subdivision (a)(1) (possession of a firearm) and former section 12316, subdivision (b)(1) (possession of ammunition).

On appeal, defendant contends there was insufficient evidence of premeditation and deliberation underlying his first degree murder conviction. He also claims the trial court erroneously failed to instruct sua sponte on (1) "subjective" provocation reducing the degree of murder, and (2) "mixed motives" justifiable homicide, in which the defendant killed out of fear but also felt other emotions toward the victim. In the alternative, he argues trial counsel rendered ineffective assistance when she failed to request these instructions. He also raises ineffective assistance of counsel for the failure to request a pinpoint instruction clarifying the type of provocation required for voluntary manslaughter. He maintains that the cumulative effect of these errors requires reversal, even if one alone did not. Lastly, defendant argues the court erroneously imposed two 5-year sentence enhancements for a prior serious felony. We remand the matter to correct sentencing errors but affirm the judgment in all other respects.

II. FACTS

A. Prosecution Evidence

As we shall explain, defendant shot and killed Luis Mendoza on December 2, 2009. Two detectives from the San Bernardino County Sheriff's Department interviewed defendant approximately one week later, at which time he explained the events of December 2 to them. He knew Mendoza "from the streets" and from prison, where they were "neighbors" in lock up. He met Mendoza early in the day on December 2, and they drank and "hung out" throughout the day. That night, they ended up at an apartment belonging to Regina P., defendant's then-girlfriend and current wife. Mendoza was in the living room "texting away on his phone," and Regina P. was in another room. Mendoza's cousin and another individual came to the doorway of the apartment, and the cousin demanded "the bitch's" credit cards and keys. Mendoza's cousin had a handgun in his waistband. Defendant asked Mendoza something along the lines of, "Are you serious, dog?," and Mendoza repeated the demand. Defendant thought Mendoza had set him up to be robbed when Mendoza was texting earlier.

Defendant then went quickly to the bedroom, where Regina P. had retreated, and closed the door. He retrieved a rifle from under the bed and loaded it. He told Regina P. "something [was] going on and . . . he was sorry." He opened the door and fired in Mendoza's direction because he was closest to defendant. Defendant's first shot struck Mendoza in the chest. The other two individuals fled when he shot Mendoza. Defendant went to the doorway to see where they had fled while Mendoza crawled on the ground towards the door of the apartment. Mendoza grabbed at his leg, and defendant turned the rifle down and fired again at Mendoza. Defendant did not describe the second shot as an accident. Moreover, he did not offer that Mendoza had grabbed his leg. One of the detectives suggested this as a possible reason why defendant might have fired the second shot, and defendant agreed with the scenario.

After defendant shot Mendoza the second time, he pulled Mendoza out onto the landing and closed the apartment door because he was concerned about the other two individuals returning. Defendant "felt a little buzzed" at the time of the shooting, but he was not "drunk" or intoxicated.

Defendant never told the detectives that Mendoza's cousin drew his gun or shot it, and he never said he heard the cousin shoot a gun. Defendant did not see a weapon on Mendoza at any point.

Defendant was very quiet, calm, and deliberate during his interview with the detectives. He did not appear to show any remorse or other emotion.

The prosecution played a 911 call received at 6:42 p.m. on December 2, 2009, from a wireless phone. The caller told the dispatcher, "I've just been shot. Please come help me." The dispatcher asked the caller where he was located, and the caller answered, "Right here, right here. On Sterling, on Sterling." The dispatcher asked more questions about his location, but received only silence or moaning in response. Then, approximately 41 seconds into the call, a gunshot rang out. After that, music played in the background until the line went dead.

Within a minute of this call, dispatch received another 911 call from a woman reporting that someone shot a person at her apartment complex. The caller was coming home when she heard a shot and saw someone fall. The person was lying outside the door of an apartment. The caller heard two shots total.

Law enforcement responding to this 911 call found Mendoza's body face down on the landing outside Regina P.'s apartment. But he was shot first inside the apartment and then again around the threshold of the door. Investigators found bloodstains around the coffee table inside. Mendoza had a gunshot wound on the right side of his chest and an exit wound in almost the same spot on the opposite side of his body. The bullet went between two ribs and hit several organs. This shot was not immediately fatal. Investigators recovered a fired cartridge casing in the bedroom of the apartment. They also recovered a fired bullet from the fibers of Mendoza's jacket.

Mendoza had a second gunshot wound on the top of his head. This shot was fatal. The stippling around the wound indicated the shot came from very close to him, as close as two inches or less and up to two or three feet away. He also had a large gaping exit wound at the bottom of his chin. This shot was consistent with Mendoza being on his hands and knees, and the shooter standing over him aiming down. Investigators found a large pool of blood and pieces of teeth and bone at the threshold of the apartment. They collected a fired bullet that had penetrated the carpet and was underneath it. There were shoe impressions in blood outside on the landing. Mendoza's hands tested negative for gunshot residue. He had no drugs or alcohol in his system.

In the apartment's bedroom, investigators found an unfired cartridge and other ammunition. They also discovered a letter from a person named Crystal C. to defendant behind the nightstand. They found no evidence of a third bullet being fired in the apartment, such as bullet holes, bullet strikes, or a third fired bullet. Nor did they find fired cartridge casings on the landing or in the planter area where footprints were found. B. Defense Evidence

Defendant testified in his own defense. He was released from a seven-month prison term on November 30, 2009. Regina P. picked him up and took him to her apartment, where he had lived for a few months before serving his prison term. Around 12:00 a.m. on December 2, 2009, he took Regina P.'s car and went to Crystal C.'s house. He and Crystal C. were "romantically involved." Crystal C. was not home, and defendant drove to another friend's house, where he stayed for a few hours. Mendoza met him there. Mendoza asked if defendant could finish the tattoo on his back that defendant had started when they were neighbors in prison. Defendant agreed, and he and Mendoza picked up defendant's brother, then returned to Crystal C.'s house. When Crystal C. greeted him, she handed him a bundle of approximately $1,100 in cash, which he put in his pocket. He believed Mendoza had seen Crystal C. hand him the cash.

Defendant and Crystal C. went to a casino and left the others at Crystal C.'s house. After the casino, they went to Crystal C.'s mother's house, where they smoked methamphetamine. They returned to Crystal C.'s house after buying food and beer. Mendoza was still there and asked if he could go with defendant, who had to return Regina P.'s car. Defendant agreed, and when they arrived at Regina P.'s apartment, she was upset and yelled at him for taking the car. She was hungry, so defendant drove the three of them to buy food and to the liquor store. She was still angry and took her food to her bedroom. Defendant was "wired" and jumpy from the methamphetamine and was drinking and smoking marijuana to calm down. Mendoza was listening to music and texting on his phone.

Defendant went to the bedroom to talk to Regina P., and when he came out, Mendoza's cousin was at the apartment door, and another man was on the landing outside. Mendoza told him, "I'm taking everything, dog. Go get them bitch's keys." The cousin had a gun in his waistband. Defendant was shocked and asked Mendoza, "Are you serious, dog? Are you serious, fool?" He thought they were going to kill him and Regina P. He turned and ran into the bedroom, and someone fired a shot.³ He grabbed a gun from under the bed, turned and pointed it towards Mendoza from the bedroom, and fired. He shot at Mendoza because he was closest to defendant. There was not "any type of thought" when he shot. Defendant reloaded and hid by the dresser, then felt the vibration of running on the stairs outside. He came out of the bedroom and Mendoza was face down on the floor by the couch. Defendant went to the doorway to look for the other men. He could hear music playing softly and Mendoza moaning, and Mendoza was trying to crawl towards defendant. As defendant was looking outside, Mendoza grabbed him, and defendant reacted immediately by pointing the gun and firing another shot. He was nervous and jumpy when Mendoza grabbed him. Regina P. ran out of the apartment screaming. Defendant moved Mendoza to the landing outside and then followed Regina P. to her car. He instructed her to drive to Crystal C.'s house, where he left the gun and ran off. Defendant considered Mendoza a friend and felt bad that he was dead.

3 Defendant could not remember whether he told the detectives anything about Mendoza's cousin shooting as he was running to the bedroom. He agreed that was a "pretty important detail" of the story.

Regina P. also testified in defendant's case. According to her, defendant took her car against her wishes in the early morning hours of December 2, 2009. She called around that day trying to find him because she needed the car to get to work at 3:00 p.m. He returned after 3:00 p.m. with Mendoza, who Regina P. had never met, but she had already called in absent for work. She and defendant quarreled about his taking the car and letters from Crystal C. that Regina P. had found in his belongings. Defendant, Regina P., and Mendoza took her car to buy food, alcoholic beverages, and "blunts" for smoking marijuana. She went to her bedroom alone when they returned to the apartment. The few times she came out, she saw Mendoza texting on his phone and defendant "was just sitting there." They had music playing, and she smelled marijuana. Defendant was more quiet than usual that day and seemed unlike himself. She thought he might be under the influence of some drug.

While in her bedroom, Regina P. heard a knock on the front door and someone say, "Who is it?" or "There's somebody at the door," and then more talking. Defendant "barged into" her bedroom and ran for a gun under the bed. She heard a shot as he was barging in. Defendant looked scared and pale. She asked what was happening, and he told her they were being robbed. She hid next to her dresser and heard two more shots close together in time.⁴ She then ran out and saw Mendoza lying on the floor near the couch. Defendant was at the arm of the couch with his rifle at his side pointed down. Regina P. ran to her car, and defendant followed awhile after. She was upset and yelled at him to get out of her car. He told her to "'shut the fuck up,'" and instructed her to go to Crystal C.'s house, where he got out still holding the rifle.

4 The officer who interviewed Regina P. said she was "kind of all over the place with respect to when different shots were fired."

III. DISCUSSION

A. Substantial Evidence of Premeditation and Deliberation Existed

Defendant contends he shot Mendoza as a "rash reaction" following an argument and attempted robbery, while under the influence of methamphetamine, alcohol, and marijuana. He argues the evidence was insufficient to establish premeditation and deliberation. We disagree. The evidence establishing premeditation and deliberation was substantial.

The standard of review is well settled. "On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.) We "'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.) We do not resolve credibility issues or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The trier of fact resolves such issues or conflicts. (Ibid.) Unless testimony is "physically impossible or inherently improbable," the testimony of a single witness suffices to support a conviction. (Ibid.) "Even if we might have made contrary factual findings or drawn different inferences, we are not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126.)

First degree murder is a "willful, deliberate, and premeditated killing." (§ 189.) "To prove the killing was 'deliberate and premeditated,'" it is not "necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act." (Ibid.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]'" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

Defendant focuses on the factors discussed in People v. Anderson (1968) 70 Cal.2d 15, pages 26 to 27. "Courts often use the three factors set forth in [Anderson] as a guide to analyzing whether there is substantial evidence of premeditation and deliberation. [Citation.] Those three factors are (1) planning activity (i.e., facts about what the defendant did prior to the killing that show he was engaged in activity directed toward killing); (2) motive (i.e., facts about the defendant's prior relationship with the victim from which the jury could reasonably infer a motive to kill the victim); and (3) method (i.e., facts about the manner of the killing from which the jury could reasonably infer that the defendant had a preconceived design to take the victim's life in a particular way)." (People v. Shamblin (2015) 236 Cal.App.4th 1, 10.) Anderson did not, however, purport "to define the elements of first degree murder" or "establish an exhaustive list that would exclude all other types and combinations of evidence . . . ." (People v. Perez, supra, 2 Cal.4th at p. 1125.) "The Anderson guidelines are descriptive, not normative." (Ibid.) "[W]hile helpful for purposes of review, [they] are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (Ibid.) Furthermore, they need not be present in some special combination. (People v. Shamblin, supra, at p. 10, fn. 16.)

Here, the record reveals substantial evidence of premeditation and deliberation. Mendoza and his cousin attempted to rob defendant and Regina P. Defendant felt that Mendoza, someone he considered a friend, had set him up. He responded by retrieving a hidden rifle, loading it, and deliberately aiming at Mendoza. Even if this first shot did not evidence premeditation and deliberation, after the first shot, defendant reloaded the rifle and shot Mendoza again, after he had already seen Mendoza lying on the floor. He did so despite the fact that Mendoza was unarmed, seriously injured, and on his hands and knees. Furthermore, the evidence belies defendant's claim that Mendoza took him by surprise. Mendoza had called 911 and was talking to the dispatcher and moaning, not silently sneaking up on defendant. Forty seconds into the call, a gunshot rang out. Defendant had a considerable amount of time between the shots to weigh the considerations and decide to shoot Mendoza in the head at a very close range. "The act of planning—involving deliberation and premeditation—requires nothing more than a 'successive thought[ ] of the mind.'" (People v. San Nicolas (2004) 34 Cal.4th 614, 658.) We have no doubt a reasonable jury could infer from the deliberate, calculated manner of killing (standing over a moaning person who is on his hands and knees, calling 911 for help) and the motive provided by the robbery set-up that defendant weighed the decision to kill in advance and quickly arrived at the decision to do so. Defendant asks this court to credit other inferences the jury could have made showing the killing was a rash reaction to a traumatic event, but it is not our role on review to second-guess reasonable inferences. (People v. Perez, supra, 2 Cal.4th at p. 1126.)

Defendant relies heavily on People v. Boatman (2013) 221 Cal.App.4th 1253, a case that is factually dissimilar. The defendant in Boatman shot his girlfriend in the face with a single bullet. (Id. at p. 1257.) There was some evidence the two had a verbal fight just before the shooting, but the defendant consistently maintained the shooting was an accident. (Id. at pp. 1258-1260.) Immediately after the shooting, a witness heard a commotion "'like someone was panicking . . . or screaming like out of fear'" (id. at p. 1259), and the defendant told another witness to call the police (id. at p. 1261). He also tried to give the victim mouth-to-mouth resuscitation. (Ibid.) In the recording of the 911 call, the jury could hear the defendant "crying and repeatedly saying things like, '[n]oooo,' '[b]aby,' and '[b]aby are you alive, baby . . . .'" (Ibid.) When the police arrived, the defendant told the officers to call an ambulance. (Id. at p. 1258.) On the way to the police station, the defendant cried and asked an officer if he knew whether the victim was okay, and said, "'I can't lose her. I would do anything for her. How is someone supposed to go on with their life when they see something like that? We were just going to watch a movie.'" (Id. at p. 1259.)

The Boatman court determined that, although there was substantial evidence of a killing with malice aforethought, the evidence was insufficient to show premeditation and deliberation. (People v. Boatman, supra, 221 Cal.App.4th at p. 1262.) It held there was no evidence of planning, little or no evidence of motive, and a shooting that could not be described as "execution style" and so did not support premeditation. (Id. at pp. 1267-1269.) Moreover, the court noted the "[d]efendant's behavior following the shooting is of someone horrified and distraught about what he had done, not someone who had just fulfilled a preconceived plan." (Id. at p. 1267.) In fact, his behavior "strongly suggest[ed] a lack of a plan to kill." (Ibid.)

The behavior of the Boatman defendant stands in stark contrast to defendant's behavior here. No evidence in Boatman showed a plan or considered thought, such as the defendant leaving the room to retrieve and load a gun, or the defendant administering a second fatal shot to the head while the unarmed victim crawled on his hands and knees and posed no threat. Defendant's behavior immediately afterward also was not that of someone "horrified and distraught about what he had done." (People v. Boatman, supra, 221 Cal.App.4th at p. 1267.) Defendant did not display remorse and concern for his victim's state, which might suggest surprise and therefore a lack of thought and planning. Instead, he cut off Mendoza's call with 911, ensured that his victim was dead, and then fled the scene. In short, Boatman does not offer an apt analogy for this case.

A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the judgment. (People v. Bolin (1998) 18 Cal.4th 297, 331.) That is manifestly not the case here. B. There Was No Error or Ineffective Assistance of Counsel in Failing to Define Provocation Beyond the Pattern Jury Instructions

For several reasons, defendant contends the court had a duty to instruct the jurors sua sponte with a further definition of provocation, after it had already given the pattern instruction on provocation and its effect on the degree of murder. (CALCRIM No. 522.) In the alternative, he asserts trial counsel committed ineffective assistance of counsel when she failed to request further instruction. We reject these claims of error and ineffective assistance.

1. Procedural Background

As relevant here, the court instructed the jury with CALCRIM Nos. 520, 521, 522, and 570. CALCRIM No. 520 defined murder with malice aforethought. CALCRIM No. 521 defined first degree murder and explained the meaning of "willfully, deliberately, and with premeditation." It also explained that the "requirements for second degree murder based on express or implied malice" were explained in CALCRIM No. 520, and if the People had not proven first degree murder beyond a reasonable doubt, the murder was of the second degree.

CALCRIM No. 522 explained: "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 defined voluntary manslaughter based on a "sudden quarrel" or "heat of passion" killing. Among other things, it explained: "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. [¶] . . . [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. 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."

After these and other instructions, the parties made their closing arguments, and the jurors started deliberations late in the day, at approximately 4:00 p.m. The jurors deliberated for the remainder of that day and the following full court day. The following day after that, the jurors deliberated for half the day, until approximately 1:15 p.m. On the fourth day of deliberations, the jury reassembled at approximately 1:40 p.m., and at approximately 2:00 p.m., the court received a note from the jury stating: "We would like a definition on second degree murder. The jury instructions packet does not define it. It is addressed on page 29 when provocation is mentioned.⁵ Is it 2nd degree murder if we conclude there was provocation and its weight is significant enough to reduce count 1 to second degree? If possible, can we also have further clarification on provocation?"

5 Page 29 of the jury instructions contained CALCRIM No. 522 (Provocation: Effect on Degree of Murder), which we set forth above.

Counsel and the court apparently conferred off the record about a response. On the record, the court stated: "After having a chambers conference with counsel, we have agreed to allow some additional argument from both sides to attempt to give the jury some response to this question. So the proposal is ten minutes to each side with two minutes of rebuttal for the People." The court asked both the prosecutor and defense counsel if they agreed with this course of action, and they both replied, "Yes." The jury reassembled in the courtroom, and the court explained that it and counsel had determined "the best option to address" the jury's question was further argument.

The prosecutor argued the jury should consider CALCRIM No. 520 as the instruction for second degree murder, because that instruction defined all murders, both first and second degree. CALCRIM No. 521, he argued, "pulls out some of those murders and says these are first-degree murders." He further argued: "And then you go to this next instruction, [CALCRIM No.] 522, which is even more confusing because it tells you about provocation and it tells you you can consider provocation in deciding if a murder is first or second-degree or a voluntary. [¶] And then you go one more page and it tells you how to do that for voluntary, but there's no explanation of how to use provocation in considering first versus second. [¶] This instruction is just giving you permission to think about provocation in deciding if a killing was willful, deliberate, and premeditated. So in deciding if you think the killing in this case was done with—was done after a moment of reflection, having considered the consequences, making a decision and killing, in deciding if you think the defendant did those things, it's fair to consider provocation because maybe provocation prevents you from doing that."

During her turn, defense counsel argued: "And what do the instructions tell—what do the instructions say in regards to provocation and its effect? [¶] Well, first of all, it is totally quiet—the instructions are totally quiet about how you get from murder one to murder two through provocation. But they are very clear in how you get to voluntary manslaughter. [¶] Provocation is something that is very—it's—it's important in that it has an effect. And if that provocation is of such a severity, has an effect upon the person such that that person kills for a reason other than what is a murder one or murder two, then you're talking about voluntary manslaughter." Defense counsel went on to discuss the provocation required for voluntary manslaughter and argued that type of provocation existed in this case. She also noted: "Now, it's—it's kind of weird that in this—in these instructions provocation is only dealt with in the voluntary manslaughter. That tells you that when you consider provocation and you considered it for purposes of murder two, it's very unclear. But it has to be—it has to be less provocation than what is being talked about here. And I would submit to you that what we have here is provocation, such that, murder one has been reduced to murder two and murder two is reduced to voluntary manslaughter. [¶] You do not have any circumstances that tell you that this was a person who did something with an abandoned heart and isn't paying attention to the consequences. This is not what happened here. The provocation was such that it took you to a different state of mind, one where you're not acting rashly, rationally. [¶] And basically what that means, if a reasonable person would have acted the same way, then this instruction applies. I would ask you to apply it."

The prosecutor's rebuttal argument also brought the focus back to voluntary manslaughter. He argued the voluntary manslaughter instruction imposed an "average person standard," discussed the cooling down period, and asserted the evidence showed clear thinking and planning, not a heat of passion killing. (Italics omitted.)

The jury then resumed deliberations, and approximately 30 minutes later returned the verdict.

2. The Court's Instructions on Provocation Were Correct, and Defendant Did Not Request Further Pinpoint Instructions

"[A] subjective test applies to provocation as a basis to reduce malice murder from the first to the second degree: it inquires whether the defendant in fact committed the act because he was provoked. The rationale is that provocation may negate the elements of premeditation, deliberateness and willfulness that are required for that degree of the crime. [Citation.] But more is required to reduce malice murder to voluntary manslaughter. For that, an objective test also applies: the provocation must be so great that, in the words of CALCRIM No. 570, it 'would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.'" (People v. Jones (2014) 223 Cal.App.4th 995, 1000-1001 (Jones).)

Defendant asserts CALCRIM Nos. 522 and 570, in combination, erroneously suggested the jurors should apply the objective standard of reasonableness to provocation reducing murder to second degree, because the court had not instructed them on the subjective test that should apply. He concedes that CALCRIM No. 522, explaining provocation's effect on the degree of murder, is a pinpoint instruction that need be given only on request. (People v. Nelson (2016) 1 Cal.5th 513, 541-542.) But he argues that, "[e]ven if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) According to defendant, the court had a sua sponte duty to further delineate provocation-based second degree murder from voluntary manslaughter so that the instructions would be correct. Reviewing this claim of instructional error de novo (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378), we disagree. The instructions were correct as given, and the court had no duty to provide further pinpoint instructions absent a request.

In Jones, our colleagues in the Second District rejected an identical challenge. (Jones, supra, 223 Cal.App.4th at p. 1001.) The jury in Jones received the same instructions at issue here—CALCRIM Nos. 520, 521, 522, and 570. (Id. at p. 999.) The defendant in that case "argue[d] that these pattern instructions were likely to have misled the jury into concluding that the objective test applies both for reduction of first to second degree murder as well as from murder to manslaughter." (Id. at p. 1001.) First, the court rejected this argument because "the instructions are correct. . . . CALCRIM Nos. 521 and 522, taken together, informed jurors that 'provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.' [Citation.] As the jury also was instructed, a reduction of murder to voluntary manslaughter requires more. It is here, and only here, that the jury is instructed that provocation alone is not enough for the reduction; the provocation must be sufficient to cause a person of average disposition in the same situation, knowing the same facts, to have reacted from passion rather than judgment." (Ibid.)

Second, the court noted the defendant actually was arguing for a pinpoint instruction "informing the jury that the objective test did not apply to reduction of the degree of murder." (Jones, supra, 223 Cal.App.4th at p. 1001.) "A pinpoint instruction 'relate[s] particular facts to a legal issue in the case or "pinpoint[s]" the crux of a defendant's case . . . .'" (People v. Ward (2005) 36 Cal.4th 186, 214.) But defense counsel did not request the pinpoint instruction, and the failure to request a pinpoint instruction forfeits the related claim of error on appeal. (Jones, supra, at p. 1001; accord, People v. Rogers (2006) 39 Cal.4th 826, 878-879 [an instruction relating provocation to the degree of murder is a pinpoint instruction, and courts need not give pinpoint instructions sua sponte].)

We agree with the reasoning of Jones. CALCRIM Nos. 521, 522, and 570 correctly set forth the law. Having instructed correctly, the court had no sua sponte duty to instruct further. If defendant wanted a pinpoint instruction on how a subjective standard for provocation could negate the elements of premeditation and deliberation, he could have requested it, but he did not. (See also People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331 ["Once the trial court adequately instructs the jury on the law, it has no duty to give clarifying or amplifying instructions absent a request."].) There was no error in failing to give a pinpoint instruction that defendant did not request.

Defendant argues Jones is distinguishable because the court rejected the defendant's argument for a third reason not applicable here—the Jones defendant "scarcely mentioned [provocation] at all" at trial. (Jones, supra, 223 Cal.App.4th at p. 1001.) It is true defense counsel discussed provocation in her closing arguments here. But this is a distinction without significance. The Jones defendant's argument "fail[ed] on several levels" (ibid.), and the first and second reasons articulated in the opinion were sufficient to invalidate defendant's argument alone.

3. Provocation Did Not Have a Technical Meaning Requiring Sua Sponte Instructions

Defendant additionally argues the court had a duty to further instruct on provocation because the term had a technical meaning peculiar to the law in context of second degree murder. Defendant asserts: "This technical meaning relates not to the nature of the provocation, but rather to its effect. The relevant effect is the impact of the provocation on the defendant's subjective state of mind." This contention also fails.

"A court has no sua sponte duty to define terms that are commonly understood by those familiar with the English language, but it does have a duty to define terms that have a technical meaning peculiar to the law." (People v. Bland (2002) 28 Cal.4th 313, 334.) A word has a technical legal meaning requiring clarification when its definition differs from its nonlegal meaning. (People v. Cross (2008) 45 Cal.4th 58, 68.)

CALCRIM No. 522 uses provocation not in a technical, peculiar sense, but in its common and ordinary sense, as in "'something that provokes, arouses, or stimulates.'" (People v. Hernandez, supra, 183 Cal.App.4th at p. 1334.) Our Supreme Court has said as much in a similar context. (People v. Cole (2004) 33 Cal.4th 1158, 1217-1218 ["provocation" as used in CALJIC No. 8.73, the predecessor to CALCRIM No. 522, bore its common meaning and "required no further explanation in the absence of a specific request."].)⁶ Defendant's claim that a technical meaning of provocation exists when determining its effect on his subjective state of mind is unavailing. He is merely insisting on an instruction that relates particular facts (evidence of provocation) to elements of the charged crime (premeditation and deliberation). This is the textbook definition of a pinpoint instruction. (People v. Nelson, supra, 1 Cal.5th at p. 542 [pinpoint instructions "relate particular facts to an element of the charged offense and highlight or explain a theory of the defense . . . ."].) And as we have already discussed, the court has no sua sponte duty to give pinpoint instructions.

6 The version of CALJIC No. 8.73 at issue in People v. Cole, supra, 33 Cal.4th at page 1217, stated: "When the evidence shows the existence of provocation that played a part in inducing the unlawful killing of a human being, but also shows that such provocation was not such as to reduce the homicide to manslaughter, and you find that the killing was murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree." (CALJIC No. 8.73 (5th ed. 1988).)

4. Defendant Has Forfeited the Claim That the Court Erred in Responding to the Jury's Note, But the Court Did Not Err Regardless

Defendant alternatively contends the court violated his constitutional rights, as well as section 1138, when it failed "to answer the jury's question in any form." This argument is forfeited, and even if that were not the case, we would find no error.

Section 1138 states, in part: "After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." We review the trial court's response to a jury question for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)

The court has a duty under section 1138 "to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky." (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).) "Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination." (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) "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." (Beardslee, supra, at p. 97.)

A defendant's agreement to the court's handling of a jury question forfeits the claim of error on appeal. (People v. Harris (2008) 43 Cal.4th 1269, 1317.) Similarly, upon being informed of the court's proposed response to a jury note, the defendant's silence or failure to object also forfeits the claim of error. (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

As a threshold matter, defendant's agreement to the court's response forfeits his claim of error. When the court asked counsel on the record whether they agreed with responding to the jury question with additional argument, defense counsel replied in the affirmative. Defendant cannot now claim reversible error.

Defendant asserts that, even if he agreed to the response, there was no forfeiture because the court still had a sua sponte duty to correct misstatements of the law in counsel's additional arguments. We do not agree counsel misstated the law in their arguments. Defendant maintains defense counsel misstated the law because she told the jury that what provocation means in CACLRIM No. 522 is that, "if a reasonable person would have acted the same way, then this instruction applies." But if one reads her argument in context, she was referring to the instruction on voluntary manslaughter (CALCRIM No. 570), not the instruction on provocation reducing the degree of murder (CALCRIM No. 522), when she told the jury about the "reasonable person" standard. She argued: "And I would submit to you that what we have here is provocation, such that, murder one has been reduced to murder two and murder two is reduced to voluntary manslaughter. [¶] You do not have any circumstances that tell you that this was a person who did something with an abandoned heart and isn't paying attention to the consequences. This is not what happened here. The provocation was such that it took you to a different state of mind, one where you're not acting rashly, rationally. [¶] And basically what that means, if a reasonable person would have acted the same way, then this instruction applies." (Italics added.) Considering her argument as a whole, she was imploring the jury to find provocation reducing the offense to voluntary manslaughter. The reasonable person standard was not a misstatement in this context. The prosecutor's rebuttal argument was even clearer that he was referring to the voluntary manslaughter instruction when he invoked the "average person standard," and he therefore did not misstate the law: "We already talked about the voluntary manslaughter instruction and heat of passion. The problems with this instruction are there's that average person standard. You're held to what an average person would do. . . ."

In any event, assuming defendant had not forfeited this claim of error, his contention would fail on the merits. The court did not abuse its discretion in responding to the jury question. The court did not refuse "to answer the jury's question in any form," as defendant asserts. The jurors asked for a definition of second degree murder, and "[i]f possible, . . . further clarification on provocation." The court discussed with counsel how to respond and provided a response in the form of further argument. It is well established the court had no absolute obligation to elaborate on full and complete instructions in response to a jury question, much less craft a pinpoint instruction that no party requested. The court had already given the jury all the pattern instructions that define first and second degree murder, provocation effecting the degree of murder, and heat of passion voluntary manslaughter. Rather than repeat those instructions, the parties and the court apparently decided to let further argument focus the jury on the definitions in the instructions. Thus, the prosecutor told the jurors to consider CALCRIM No. 520 as defining murder, and CALCRIM No. 521 as "pull[ing] out some of those murders" to define first degree murder. He then argued the instruction on provocation was "just giving you permission to think about provocation in deciding if a killing was willful, deliberate, and premeditated. So in deciding if you think the killing in this case was done with—was done after a moment of reflection, having considered the consequences, making a decision and killing, in deciding if you think the defendant did those things, it's fair to consider provocation because maybe provocation prevents you from doing that." The court was not required to elaborate on the full and complete pattern jury instructions already given, under these circumstances. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1213 [no error in responding to the jurors' request to clarify the legal definition of malice by urging them to reread the pattern instructions already furnished], superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 692.)

This is not a case like Beardslee, in which the court refused to "at least consider how it [could] best aid the jury" and "figuratively [threw] up its hands and [told] the jury it [could not] help." (Beardslee, supra, 53 Cal.3d at p. 97.) The Beardslee jury's note asked "'whether "the first degree murder" constitutes the act as a whole or the defendant's participation in said act.'" (Id. at p. 96.) The court told counsel it was "'not going to explain any instructions. They either get it figured out for themselves or not. [¶] Every time a judge opens his big mouth and tries to explain what an instruction means, he puts his foot in it and the Appellate Court promptly bites it off.'" (Ibid.) Consistent with these statements, the court told the jury: "'[T]here is and can be no explanation of the instructions. You have to just work with them as they are printed. [¶] This is one of the reasons we do not send, ordinarily, instructions into the jury room, because people start . . . picking them apart. [¶] You are going to have to consider the instructions as a whole as one of those instructions will . . . advise you, some of the instructions will apply, some of the instructions will not. [¶] All of those instructions have to be considered as a whole. Do the best you can with them.'" (Id. at pp. 96-97.) In our case, it is clear the court actually considered how to respond to the jury's note and consulted with counsel on it. It did not simply tell counsel and the jury that it would do nothing. Defendant has not convinced us the court had no discretion to allow counsel further arguments after considering the jury's note.

Defendant also relies on People v. Miller (1981) 120 Cal.App.3d 233, an assault case in which the jury asked the court for a definition of "great bodily injury," at a time when the pattern jury instructions did not define the term. (Id. at pp. 235-236, & fn. 2.) The trial court replied only "that it was a fact question to be determined by the jury." (Id. at p. 236, fn. 2.) The appellate court held this response was error and explained: "[W]here the jury during its deliberations indicates confusion over the meaning of the term and specifically requests a definition of the term, we believe the court must honor the request. When the jury asks for clarification, it no longer can be presumed that the jury understands the meaning of the term. Only by answering the jury request does the court fulfill its duty to instruct on those elements of the case necessary for the jury to reach an informed decision . . . ." (Id. at p. 236, fn. omitted.)

Miller does not persuade us the trial court abused its discretion. The case must be read together with our Supreme Court's direction that a court need not always elaborate on standard instructions, where the original instructions are full and complete. (Beardslee, supra, 53 Cal.3d at p. 97.) The original instructions in Miller did not define the term at all or provide any guidance. In contrast, the original instructions here were full and complete and already provided guidance for the jury on its question. CALCRIM No. 521 instructed the jurors that first degree murder required willfulness, premeditation, and deliberation, and CALCRIM No. 522 told them to consider provocation in deciding whether first or second degree murder was committed. In addition, counsel's additional argument told them it was fair to consider whether provocation prevented defendant from killing with premeditation and deliberation. There was no indication the jury was still confused after this.

Finally, assuming defendant had not forfeited this argument, we would reject his claim that the court violated his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process. More specifically, he asserts the court's failure to provide further jury instructions deprived him of the right to present a defense and relieved the prosecution of the burden of proving premeditation and deliberation beyond a reasonable doubt. He cites to cases in which the defendants argued the court failed to instruct altogether on theories or defenses warranted by the evidence (People v. Thomas (2013) 218 Cal.App.4th 630, 642-643; Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1099; Davis v. Strack (2d Cir. 2001) 270 F.3d 111, 116, 131-132; Tyson v. Trigg (7th Cir. 1995) 50 F.3d 436, 448), the defendants argued the court misstated the law in its instructions (People v. Woodward (2004) 116 Cal.App.4th 821, 832; Barker v. Yukins (6th Cir. 1999) 199 F.3d 867, 876), or cases that had nothing to do with instructional error and merely stated general principles regarding a criminal defendant's federal constitutional rights (Crane v. Kentucky (1986) 476 U.S. 683, 690; Faretta v. California (1975) 422 U.S. 806, 818-819; California v. Trombetta (1984) 467 U.S. 479, 485). None of these cases stand for the proposition that the court violated defendant's constitutional rights, when it fully and correctly instructed on the pertinent theories: first and second degree murder; provocation reducing the degree of murder; heat of passion voluntary manslaughter; the prosecution's burden of proving willfulness, premeditation, and deliberation; and the prosecution's burden of proving defendant had not killed in the heat of passion or as the result of a sudden quarrel. The court's failure to give an unrequested pinpoint instruction was not federal constitutional error.

5. Defendant Has Not Demonstrated Ineffective Assistance of Counsel

In the alternative, defendant argues his trial counsel rendered ineffective assistance when she failed to request a pinpoint instruction further explaining how provocation may reduce a murder to second degree. This argument is also unavailing.

"To establish ineffective assistance of counsel, '"'a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms."'"' [Citation.] '"[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'"'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1051 (Nguyen).) "'[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.'" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

A defendant's "burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" (Harrington v. Richter (2011) 562 U.S. 86, 104.) Overcoming this "'high bar is never an easy task.'" (Id. at p. 105.) "It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' [Citations]. The question is whether an attorney's representation amounted to incompetence under ' prevailing professional norms,' not whether it deviated from best practices or most common custom." (Ibid.) "[A] defendant, while entitled to reasonably competent representation, is not guaranteed a successful defense or even a letter-perfect defense." (People v. Wallin (1981) 124 Cal.App.3d 479, 484-485.) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver, supra, 26 Cal.4th at p. 926.)

Here, defendant fails to show there could be no conceivable reason for defense counsel's actions. Counsel's primary argument was that "[t]his is a case of justifiable homicide, defending against harm to person within your home or on the property," based on a fear of death. During the later phase of her argument, she argued defendant was "not guilty of murder one. He's not guilty of murder two. He's not guilty of manslaughter. However, I need to go through this in order to look at the idea of first-degree murder and why he's not guilty of that." When she reached provocation in particular, she argued she was "not proposing this," but provocation was "something that you may think about," in that provocation could reduce first degree murder to second degree, and could reduce murder to manslaughter.

The obvious reason for not requesting further instructions on provocation is that the standard instructions adequately addressed the issue. As we have discussed at length, the court had already instructed the jurors on the state of mind required for first degree murder and provocation's role in determining whether a murder was first or second degree. Counsel could have reasonably believed further instructions were unnecessary, especially given that she wanted the jury to focus on justifiable homicide and reject murder or lesser offenses.

Defendant contends that, even if counsel's actions were initially reasonable, it was "patently unreasonable" once the jury asked its question to "wholly ignore the jury's question and ensure that [defendant] was convicted of second degree murder and not first degree murder." Even after the jury's note, we cannot characterize counsel's actions as unreasonable. The jury's note revealed it was considering second degree murder based on provocation, in spite of counsel's argument for acquittal. Counsel could have reasonably believed that her best strategy, if the jury was weighing provocation, was to direct the jurors toward heat of passion voluntary manslaughter, the lesser offense involving provocation. We can infer from the focus on voluntary manslaughter in her additional argument that this was the case. Emphasizing the second degree murder theory with a special instruction might have detracted from the alternate theory she wanted to advance. It was conceivable counsel made a reasonable tactical decision to request additional argument and not propose a special instruction. C. There Was No Error or Ineffective Assistance of Counsel in Failing to Instruct on Defendant's Claimed "Mixed Motives"

As we have discussed, defendant's primary defense was that he committed a justifiable homicide in defending against harm to himself or another in his home. The court instructed the jury with CALCRIM No. 506, which provided in part that defendant must have reasonably believed "there was imminent danger of violence to himself or someone else" and "he must have acted only because of that belief."⁷ (Italics added.) Defendant contends the court should have sua sponte instructed the jury that "acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill." Applying the de novo standard of review to this claim of instructional error (People v. Fiore, supra, 227 Cal.App.4th at p. 1378), we reject this contention. We also decline to find ineffective assistance of counsel.

7 CALCRIM No. 506 instructed the jury in full: "The defendant is not guilty of murder or manslaughter if he killed to defend himself or any other person in the defendant's home. Such a killing is justified, and therefore not unlawful, if: [¶] 1. The defendant reasonably believed that he was defending a home against Luis Michael Mendoza, who intended to or tried to commit robbery; [¶] 2. The defendant reasonably believed that the danger was imminent; [¶] 3. The defendant reasonably believed that the use of deadly force was necessary to defend against the danger; [¶] AND [¶] 4. The defendant used no more force than was reasonably necessary to defend against the danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself or someone else. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, then the killing was not justified. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶] A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death, great bodily injury, or robbery has passed. This is so even if safety could have been achieved by retreating. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter."

1. The Origins of Defendant's Proposed Mixed Motives Instruction

We begin with the standard rule embodied in CALCRIM No. 506. CALCRIM No. 506 is based on section 197, clause (2), and section 198. (Bench Note to CALCRIM No. 506, p. 222.) Section 197, clause (2) provides that a homicide is justifiable "[w]hen committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony . . . ." Section 198 adds that "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (Italics added.)

Despite section 198's directive that the party killing must have acted on fear alone, defendant argues the presence of other motives do not necessarily foreclose a finding of justifiable homicide. He relies on two cases for his proposed mixed motives instruction, Nguyen, supra, 61 Cal.4th 1015 and People v. Trevino (1988) 200 Cal.App.3d 874 (Trevino).

In Trevino, the defendant claimed the court erroneously instructed the jury with CALJIC No. 5.12 on justifiable homicide in self-defense. (Trevino, supra, 200 Cal.App.3d at p. 877.) CALJIC No. 5.12 stated a killing was justified when the circumstances were "'sufficient to excite the fears of a reasonable person that there was imminent danger of death or great bodily injury,'" and the defendant "'acted under the influence of such fears alone.'" (Trevino, supra, at p. 877, fn. 6, italics added.) The defendant asserted there was evidence he acted out of both reasonable fear and ill will toward his victim. (Id. at p. 877.) He argued that when a danger was real and imminent, a defendant's actions need not be motivated by fear alone, and the "'reasonable fears alone' rule" should apply only when a defendant mistakenly perceives a danger. (Ibid.) The court rejected this argument. (Id. at pp. 877-878.) No case authority had recognized the distinction the defendant wanted to draw, and the law of justifiable homicide based on self-defense was settled. (Id. at p. 878.) "'[O]ne must have an honest and reasonable belief in the need to defend,'" and further, "'"the party killing must have acted under the influence of such fears alone." [Citation.]' [Citations.] Hence, an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law." (Id. at pp. 878-879.)

The court clarified that it did not "mean to imply that a person who feels anger or even hatred toward the person killed . . . may never justifiably use deadly force in self- defense." (Trevino, supra, 200 Cal.App.3d at p. 879.) For instance, when the victim of a simple assault suddenly engages in a deadly counterassault, the original aggressor may reasonably use necessary force in self-defense. (Ibid.) In such a case, "it would be unreasonable to require an absence of any feeling other than fear, before the homicide could be considered justifiable. . . . The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his decision to use deadly force. If they are, the homicide cannot be justified on a theory of self-defense." (Ibid.) In short, the challenged jury instruction did not "eliminate a feeling of anger or any other emotion so long as that emotion was not part of the cause of the use of deadly force." (Id. at p. 880.) The instruction therefore correctly stated the law. (Ibid.) The defendant "could have requested additional instructions with regard to his feeling anger toward [the victim] as well as fear, or with regard to a situation where anger and fear were both causal factors. He did not do so." (Ibid.)

Accordingly, Trevino teaches, by way of analogy to CALJIC No. 5.12, that CALCRIM No. 506 correctly states the law when it says a defendant "must have acted only because of a reasonable belief in imminent danger. The case merely suggested a defendant could request additional instructions regarding the presence of emotions besides fear.

Nguyen did not establish that a mixed motives instruction was proper. There, the court concluded the evidence had not established self-defense as a matter of law. (Nguyen, supra, 61 Cal.4th at p. 1044.) Self-defense was not available if the defendant acted out of both reasonable fear and a desire to kill his victim (a rival gang member), and the jury could have reasonably concluded the defendant acted out of both. (Id. at pp. 1044-1045.) The court cited section 198's directive that a party engaging in justifiable homicide must act under the influence of reasonable fear alone. (Nguyen, supra, at p. 1045.) It also noted Trevino's statement that the defendant may harbor other feelings, such as anger or hatred, toward the victim, but such feelings cannot be causal factors in the decision to act, if the homicide is going to be justified as self-defense. (Nguyen, supra, at p. 1045.) The court explained the "defendant did not argue in the trial court, nor has he argued on appeal, that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill. We therefore have no occasion to consider whether such a rule would be consistent with section 198 as interpreted in Trevino or other cases." (Id. at p. 1046.)

Nguyen therefore reaffirms the correctness of CALCRIM No. 506 when it declares the defendant must have acted only because of a reasonable belief in imminent danger. But the opinion expressly declined to decide whether a mixed motives instruction would be consistent with the law. Defendant contends "[t]his case demands an answer to that question," and the answer is "yes."

He proposes an instruction, "consistent with traditional principles of causation, that an otherwise meritorious self-defense claim is only defeated by the presence of another motive when: 1) the killing would not have occurred but-for [sic] the existence of some motive besides reasonable fear; and 2) that other motive was a substantial factor in the killing." He draws this definition of causation from case law interpreting the phrase "because of" in two "hate crime" statutes. (In re M.S. (1995) 10 Cal.4th 698, 706, 718-719.)

2. The Court Was Not Required to Instruct Sua Sponte on Mixed Motives, an Unestablished Rule in the Realm of Justifiable Homicide

We need not decide whether defendant's proposed instruction states a rule consistent with the law of self-defense. Even assuming it does, such a rule was not well established at the time of trial, and consequently, the court had no duty to give the instruction on its own motion.

In criminal cases, the court must instruct sua sponte "'on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. "The most rational interpretation of the phrase 'general principles of law governing the case' would seem to be . . . those principles of law commonly or closely and openly connected with the facts of the case before the court."'" (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)

In contrast, courts need not instruct sua sponte on a rule or concept that is not commonly known and established by authority. (People v. Michaels, supra, 28 Cal.4th at pp. 529-530 [no duty to instruct sua sponte on imperfect defense of others, which was not well established at the time]; People v. Bacigalupo (1991) 1 Cal.4th 103, 126 [no duty to instruct sua sponte that an unreasonable belief one is acting under duress constituted a defense to robbery, a concept that was not established], judg. vacated on other grounds and cause remanded sub nom. Bacigalupo v. California (1992) 506 U.S. 802, reaffd. (1993) 6 Cal.4th 457; People. Flannel (1979) 25 Cal.3d 668, 681 ["[g]iven the unique nature" of the imperfect self-defense doctrine, which was "obfuscated by infrequent reference and inadequate elucidation" at the time, there was no duty to instruct on it sua sponte], superseded by statute on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768, 773-774.)

This reasoning makes perfect sense. "'[T]he trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.'" (People v. Flannel, supra, 25 Cal.3d at p. 683.) Especially when dealing with an undeveloped or unsettled rule, we cannot inflict on trial courts "so formidable a duty as to conceive and concoct an instruction embodying that rule. 'The duty of the trial court involves percipience not omniscience.'" (Ibid.)

These principles govern here. The novel instruction defendant proposes is not based on a well-established rule, such that we should expect trial courts to recognize it as commonly connected to the facts of cases before them. As defendant acknowledges, it is an "open question whether, if the defendant's reasonable fear is the but-for cause of the killing, the existence of another motive will defeat a self-defense claim." (Italics added, capitalization & underlining omitted.) Defendant cites only one reported case that suggests the instruction may be consistent with the law, Trevino. One intermediate appellate opinion's evaluation and acceptance of a legal concept does not transform it into a general principle of law on which courts must sua sponte instruct. (People v. Bacigalupo, supra, 1 Cal.4th at p. 126, fn. 4.) Nguyen recognized but did not resolve the issue, and it did so more than a year after defendant's trial. The jury rendered its verdict in July 2014, and our Supreme Court issued the Nguyen opinion in August 2015. (Nguyen, supra, 61 Cal.4th 1015.) We refuse to impose a duty on the trial court to have identified defendant's mixed-motives justifiable homicide rule, a concept that has been referred to infrequently, at best.

3. Defendant Has Not Demonstrated Ineffective Assistance of Counsel

We similarly reject defendant's claim that defense counsel was ineffective for failing to propose a mixed motives instruction.

As we have discussed, defendant must overcome a high bar to show counsel's performance fell below an objective standard of reasonableness, and we will not find ineffective assistance unless there could be no conceivable reason for counsel's actions. (Harrington v. Richter, supra, 562 U.S. at p. 105; People v. Weaver, supra, 26 Cal.4th at p. 926.) Moreover, besides deficient performance, defendant must also demonstrate prejudice flowing from counsel's deficiencies. (People v. Weaver, supra, at p. 925.) "Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (Ibid.) "The likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter, supra, at p. 112.)

We will assume for argument's sake that (1) competent counsel would have spotted the mixed motives issue in Trevino even without the benefit of Nguyen, which was decided after trial in this matter, and (2) there was no conceivable reason for failing to request a mixed motives instruction.

Even so, defendant has not demonstrated a substantial likelihood that he would have realized a better result, absent counsel's omission. He suggests it was reasonably probable a mixed motives instruction would have resulted in an acquittal or hung jury on the murder charge. The instruction he proposes would have permitted the jurors to believe he felt angry or betrayed by Mendoza, so long as these emotions were not the but-for cause or proximate cause of his actions. But his defense did not rise and fall solely on the cause of his decision to act. Justifiable homicide required a host of other findings not related to his motives for the killing.

For instance, defendant must have "used no more force than was reasonably necessary to defend against the danger." (CALCRIM No. 506.) If he used more force than was reasonable, the killing was not justified. (Ibid.) The prosecutor picked up on these issues in his argument: "[W]hat the defendant told you wasn't that [Mendoza] was threatening to kill anybody. Wasn't that [Mendoza] had a gun. Wasn't that [Mendoza] drew a gun. That's not even what he said. Then to try and argue that you can know [Mendoza] was going to try and kill anybody, that's a huge jump. But they're making that jump because they want you to think it's reasonable and justifiable for the defendant to shoot him again and again. That's why they're making that leap, because there is no distance between what the defendant is saying and what would be okay, what would be a killing and we as a society would say is okay, give him permission to end Luis Mendoza's life. [¶] Those aren't the circumstances in this case. Not the circumstances where we would give him permission to kill someone."

There was no evidence Mendoza was armed when defendant used deadly force against him, and he certainly was not a danger after defendant shot him once in the chest and he was crawling on the ground. Regardless of whether the jury was instructed on mixed motives, there was compelling evidence that defendant unreasonably used deadly force against an unarmed victim, particularly in delivering the ultimately fatal shot to the head. In light of the other significant problems with his justifiable homicide theory, defendant fails to show the omission of a mixed motives instruction prejudiced his case. D. Defendant Has Not Shown Ineffective Assistance of Counsel in Failing to Request an Additional Instruction Relating to Voluntary Manslaughter

The court instructed the jury on voluntary manslaughter that provocation must "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.) Defendant maintains trial counsel should have requested a pinpoint instruction that "the jury . . . need not find a provocation sufficient to rouse a reasonable person to kill, but only provocation sufficient to trigger actions out of passion rather than judgment," and he urges us to find ineffective assistance of counsel based on the omission. (Bolding omitted.) Defendant's proposed instruction "accurately reflect[s] the law relating to provocation and heat of passion." (People v. Trinh (2014) 59 Cal.4th 216, 232.) Our high court has repudiated the notion "that provocation must be such as would move an ordinary person to kill." (Id. at p. 233.) Be that as it may, defendant fails to show counsel's omission was prejudicial.

He asserts the proposed instruction "is a significant defense pinpoint instruction that could sway a jury in a heat-of-passion case." But the only case-specific fact he offers as evidence of prejudice is that the instruction would have combated this argument of the prosecutor: "We're just saying if you're provoked and because of that provocation you don't deliberate, that may make a first—that may make a killing a second-degree murder rather than a first. [¶] But if you had that moment of—that moment you hear on that 911 call, that quiet moment where you have a chance to think about it where you consider what you're doing and you decide to kill and you do kill, that's a first degree murder. Because if you accept the defendant's story that [Mendoza] said he was gonna rob him, sure that's provocation. That will make you mad. That's gonna do all kinds of things to you, but it's not an excuse for deciding to kill someone after you thought about what you're doing. That's a first-degree murder."

It is clear the prosecutor was discussing provocation and its effect on the degree of murder, not provocation that underlies heat of passion voluntary manslaughter. He did not tell the jury that provocation had to make a reasonable person kill to find voluntary manslaughter. Instead, he suggested Mendoza's purported provocation did not reduce the killing to second degree murder, if defendant actually thought about what he was doing. As such, he did not mislead the jury. Defendant has not convinced us there was a substantial likelihood of a better result (Harrington v. Richter, supra, 562 U.S. at p. 112), had counsel requested his proposed pinpoint instruction. E. No Cumulative Errors Denied Defendant a Fair Trial

Defendant contends "[a]ll of the errors here combined to wholly eviscerate [his] defense" case and deprive him of a fair trial under California law and federal due process principles. (Taylor v. Kentucky (1978) 436 U.S. 478, 487-488; People v. Hill (1998) 17 Cal.4th 800, 844-848.) We reject this contention because, for the reasons already discussed, we do not have numerous errors to cumulate. (People v. Koontz, supra, 27 Cal.4th at p. 1094.) The court's error in sentencing, which we discuss in the following part, did not deprive him of a fair trial on his guilt or innocence. We may correct the sentencing error without disturbing the jury's verdict. F. The Court Erred Regarding Sentence Enhancements

Defendant asserts the court erred in imposing two 5-year enhancements under section 667, subdivision (a) for a prior serious felony conviction. He contends the court had the authority to impose only one 5-year enhancement. We agree and also order a correction relating to prior prison term enhancements.

As to the murder count, the first amended information alleged defendant had suffered a prior serious felony conviction for criminal threats (§ 422), within the meaning of section 667, subdivision (a)(1). As to all counts, the first amended information alleged defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b). One prison term related to the criminal threats conviction alleged as a prior serious felony. The second prison term was allegedly served for a second degree burglary conviction. (§ 459.) The court found all these allegations to be true.

When the court announced defendant's sentence on the murder count, it imposed a five-year prison term for the prior serious felony, pursuant to section 667, subdivision (a)(1). When it announced his sentence on count 3 for possession of ammunition by a felon, it also imposed a five-year term for the prior serious felony, pursuant to section 667, subdivision (a)(1). The court did not discuss the prior prison term enhancements at all.

If a defendant is convicted in the present case of a "serious felony," section 667, subdivision (a)(1) authorizes a five-year enhancement for each prior serious felony conviction the defendant has suffered. In the present case, defendant was convicted of only one serious felony—murder—within the meaning of this enhancement provision. (§§ 667, subd. (a)(4), 1192.7, subd. (c)(1).) The People pled and proved only one prior serious felony—criminal threats. (§§ 667, subd. (a)(4), 1192.7, subd. (c)(38).) Thus, it was error in this case to impose more than one 5-year enhancement under section 667, subdivision (a)(1). We will therefore direct the trial court to strike the five-year enhancement on count 3.

The People contend they pled and proved two prior serious felony convictions— criminal threats and second degree burglary—and the court was required to impose five-year enhancements for each. First, they did not plead that second degree burglary was a prior serious felony conviction. As noted, they pled it was a prior conviction for which defendant had served a prior prison term. Second, even if they had pled it as a prior serious felony, second degree burglary does not qualify as a serious felony for purposes of this enhancement. (§§ 667, subd. (a)(4), 1192.7, subd. (c)(18).)

With respect to the prior prison term allegations, the court found them to be true within the meaning of section 667.5, subdivision (b). Once the fact finder concludes such allegations are true, the one-year enhancement is mandatory unless stricken. (§ 667.5, subd. (b) ["[T]he court shall impose a one-year term for each prior separate prison term or county jail term . . . ."], italics added; People v. Langston (2004) 33 Cal.4th 1237, 1241.) Here, the trial court did not mention the prior prison term enhancements at defendant's sentencing. We shall direct the court to deal with these enhancements on remand.

IV. DISPOSITION

The matter is remanded to the trial court with directions to strike the five-year enhancement imposed on count 3 pursuant to section 667, subdivision (a)(1). The court shall also determine whether to impose or strike the prior prison term enhancements on all counts pursuant to section 667.5, subdivision (b). The court shall amend the abstract of judgment accordingly and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J. We concur: RAMIREZ

P. J. MILLER

J.