Opinion
E065316
08-23-2017
THE PEOPLE, Plaintiff and Respondent, v. MANUEL E. QUINANOLA, Defendant and Appellant.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1301721) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed. Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Manuel E. Quinanola hit Mary Bungato in the head and on her body with a baseball bat, killing her, and then left her body to decompose on his property for one week. The jury found defendant guilty of the willful, premeditated and deliberate first degree murder of Bungato (Pen. Code, § 187, subd. (a)) with the special allegation that he personally used a deadly and dangerous weapon during the commission of the crime (§ 12022, subd. (b)(1)). Defendant was sentenced to 26 years to life to be served in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant claims on appeal as follows: (1) Insufficient evidence was presented to support that he committed the murder of Bungato willfully, deliberately and with premeditation to support his first degree murder conviction; and (2) he received ineffective assistance of counsel for his counsel failing to request the pinpoint instruction CALCRIM No. 522 regarding provocation to reduce first degree murder to second degree murder. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY
1. PEOPLE'S CASE-IN-CHIEF
a) Discovery of Bungato's Body
Annaliza Fornatora was Bungato's sister. Near the time of Bungato's death, Fornatora was living in Maryland and Bungato was living in Delaware with their parents. Defendant was their uncle and lived near Temecula. Defendant's wife passed away from cancer in 2008.
Bungato was going through a rough time around the time of her murder. Her husband of 20 years had left her, she had a hard time holding a job and she was very depressed. Bungato started helping defendant take care of his house and other matters. Defendant paid for her to fly from Maryland to California every four to six months. She would stay for two to three days. Defendant also helped Bungato by buying her a car, paying for her attorney fees in connection with her divorce, and with paying her rent.
On June 14, 2013, Fornatora spoke with one of her cousins who stated she had received a phone call from defendant. Defendant told the cousin that he had done something very bad and that he needed to turn himself in. Fornatora was very worried about Bungato. Fornatora called defendant. Defendant told Fornatora that Bungato had been visiting and they decided to go to Sea World. He began to feel ill and wanted to return home. Bungato wanted to stay. Bungato asked him for his PIN number to his ATM card. Defendant told Fornatora that when they eventually got home, Bungato was disrespecting him. He grabbed his baseball bat and hit Bungato in the head. He called an ambulance. He assured Fornatora they went to a hospital in Murrieta and she died at the hospital. Defendant told her his life was over. Fornatora called every hospital in Murrieta but none had any information about Bungato.
On June 14, at around 12:45 p.m., Riverside County Sheriff's Lieutenant Matthew Aveling was advised that a patrol officer was sent to defendant's home located at 36120 Fox Hollow in Temecula to do a welfare check. Lieutenant Aveling responded to the location when it was reported a deceased person was found at the location. The home was a double-wide mobile home. The property was large and covered with animal pens and sheds. The closest home to defendant's was approximately 100 yards away.
Lieutenant Aveling and other deputies surrounded the property. Defendant's son, Gary Quinanola arrived at the residence. On that day, Gary, his girlfriend and their son were going to the beach in Oceanside. While en route to the beach, he received a phone call from defendant. Defendant sounded "excited." He told him that he was in trouble and might be going to jail. Defendant asked Gary to come to his house. Defendant told Gary he had "hit" Bungato two or three times with a bat and that she was sitting in the front yard under a tree. Gary arrived at the residence talking on his cellular telephone to defendant and assisted Lieutenant Aveling in getting defendant to exit the home; defendant was taken into custody.
Lieutenant Aveling and the other deputies searched the property. They discovered a deceased body covered by a sheet. There was what appeared to be body fluid and blood on the sheet. The body smelled and was covered with flies. They glanced under the sheet and discovered it was Bungato's body. The body was approximately six feet from the back door of the residence. The body was not visible from the road or the front gate. Near her body, there was blood splatter on ceramic decorative figures, a wooden fence post and a birdhouse.
Bungato was lying partially on her back and on her side. She was clothed and had one arm over her head. Her body was in various stages of decomposition. It was clear that she had been at the location for some time and had been exposed to water. She had marks on her body. She had a traumatic injury to her head. Her lip was split open. There was insect larvae located inside her mouth and around her eyes. There was what appeared to be bruising on her leg. She appeared to have been dead for about one week.
Blood was found on the carpet in the living room, between the coffee table and the sofa. There was a sheet and pillowcase on the floor covering bloodstains. There was blood on the couch. A shotgun was found in the closet of the master bedroom. Some shorts, which appeared to be blood-stained, were soaking in the bathtub of the master bathroom. Items belonging to Bungato were found in the dining room. In a second bedroom, behind a dresser, a baseball bat was found.
Dawna Wimsatt was a deputy coroner employed by the Riverside County Sheriff's Coroner's Office. Wimsatt responded to the scene to help with the initial processing of Bungato's body. Wimsatt observed that Bungato had been dead for a "bit of time" based on the decomposition and insect activity. There was significant bruising on her upper arms, as well as bruising on her lower legs and chest. She had several lacerations to the front and back of her head.
An autopsy was performed on Bungato. Bungato had 19 abrasions and lacerations on her head. Bungato was hit at least 10 separate times on her head. The force used to make these lacerations was "significant" because the skin was split. She also had injuries on her arms, legs and hands. She had bruises on her legs and lacerations on her hands. The cause of death was blunt impact injuries to the head.
2. DEFENDANT'S INTERVIEW
Riverside County Sheriff's Investigator Gary Bowen interviewed defendant on June 14. Defendant was calm and friendly during the interview. The video of the interview was played for the jury. Defendant advised Investigator Bowen he was 65 years old. He had a working cellular telephone. Defendant claimed that Bungato was a drug addict and could not find a job. He hired Bungato as a cleaning lady. He started using her as a cleaning lady in 2009 after his wife died. He paid her cash for the cleaning and paid for her plane ticket to get to California. From 2009 to 2013, Bungato came to his house every three months to clean.
At some point, Bungato asked for the password to his bank account. He gave her a fake password because he knew she wanted to steal his money. Defendant paid Bungato's rent for an apartment in Maryland the first five months of 2013. Bungato returned to defendant's house on June 6. She failed to return a laptop that she had borrowed from him.
On Saturday, June 8, defendant and Bungato went to Sea World. After Sea World, they went to the Pechanga Casino. They were getting along and she was having fun. Bungato played one of the casino games for three hours. They left the casino around 8:45 p.m. They stopped and ate dinner on the way home. They arrived home around 9:30 p.m. When they arrived home, Bungato asked defendant what he was going to do with his money. He told her he was saving for the future; he was planning to move to Ecuador and hoped to meet a woman.
Defendant explained that Bungato called him "Jewish" for not spending his money. When they got back in the house that night, defendant confronted Bungato as to why she had asked for his bank password and accused her of trying to steal his money. She denied she was planning to take his money. Defendant felt that she was disrespecting him and since he paid her so much money she should respect him. Bungato went into the bathroom for about five minutes. When she came back out, defendant confronted her about disrespecting him.
Defendant grabbed a baseball bat. He "couldn't take it anymore" and he "los[t] his mind." Defendant hit her in the back of the head with the bat. Bungato was facing away from him. He recalled that he hit her three to five times in the head. She fell to the ground and he kept hitting her. Bungato begged him to stop and tried to defend herself. He stopped hitting her. She got on the couch and apologized for disrespecting him. She told him that she loved him and was sorry. She offered to pay him back the money. She was bleeding.
Defendant went to the bathroom. He then heard her running out of the house. He then told Investigator Bowen she "should have kept her mouth shut." She started yelling for help. She got to the gate but it was locked. She tried to hide in the dark but he found her and again hit her with the bat. He hit her multiple times with the bat on her legs while she tried to protect herself. She tried to take away the bat but he got it back.
She appeared to get weak. He walked away and then came back five to 10 minutes later and she was not moving. He believed that she was dead. Defendant prayed for her but told Investigator Bowen that she had pushed him to the edge by insulting him. He had just erupted "like a volcano." He believed that she died around 3:00 a.m. He covered her with a sheet the next morning. For four days, he prayed and watched television. Each day he put water on Bungato to keep her "fresh." He was sorry for what he had done but she had pushed him to the edge.
B. DEFENSE
1. DEFENDANT'S TESTIMONY
Defendant had been diagnosed with Autism when he was a young child. After his wife died, he created a shrine in his living room for her and prayed every day at the shrine. Defendant explained that he had been disrespected, abused and manipulated by Bungato. He was the only one in their family who supported her. He did not like that Bungato called him "Jewish" because his wife had been Jewish. Defendant was mad that Bungato took his new laptop to Maryland with her and would not give it back. Defendant had written numerous checks to Bungato. Defendant had over $400,000 in the bank in March 2013 from his wife's life insurance.
The day they spent together at Sea World and Pechanga was fine; they did not start arguing until they arrived home and she asked what he was going to do with all of his money. He told her he was saving for the future and asked her about her future. He was also upset about the laptop and her asking for his password to his bank account. Bungato also had called him "retarded" in the past.
He "erupted" because she was disrespecting him and abusing him. He could no longer take the abuse. He swung the bat "very light." He hit her only one time in the head and then hit her several times on the knee. He denied that he hit her three or four times in the head.
Bungato asked him to take her to the hospital and he agreed. He first went into the bathroom. She then ran out of the house. He found her lying on her back under a tree. It appeared that she had fallen. He found her with a piece of a water fountain on top of her head; it must have fallen on her. She was injured badly from falling and the fountain hitting her head. He never tried to move her or bury her.
Defendant had to go into the bedroom to retrieve the bat. He went to the bedroom to get the bat because he was going to "teach her a lesson." He hid the baseball bat next to a recliner in the living room. When Bungato exited the bathroom, defendant tried to talk to her about disrespecting him but she was not listening to him. She was playing a game on her iPad. As she walked to sit down on the couch, he hit her in the back of the head. He may have said in the interview he hit her four or five times, but he meant one time in the head and the other times on the knee.
When defendant ran after Bungato, he only took a flashlight. He left the bat in the living room. He did not recall that he told Investigator Bowen he took the bat outside. He also denied telling Investigator Bowen she should have kept her mouth shut. He did not recall saying that they struggled over the bat outside. He thought she fell and tumbled down a slope hitting rocks and the fountain. He never called an ambulance or the police. She was dead. Defendant never planned to kill Bungato; he just "lost it" based on all the things she did to him. Defendant had asked Bungato to go with him to Ecuador.
Dr. Ginette Perrin was a clinical psychologist. She frequently tested persons to determine if they suffered from Autism. She tested defendant. Defendant appeared as being self-centered. He had difficulty understanding the lives of others and their feelings. These are common Autism traits. His inability to stay on one topic was a common trait of Autism. Defendant had no friends or relationships. His desire to be alone and to talk to himself was a common Autism trait. He did not understand friendship. He also had difficulty with abstract thinking, which was common. At the end of the tests and interview, Dr. Perrin diagnosed defendant with moderate Autism.
Dr. Perrin explained that a person with Autism did not understand the consequences of his or her actions. If a person with Autism were to push another person into the street in front of a moving car, the person would not think about the consequences of such action. A person with Autism is impulsive. She agreed that there was a very significant spectrum for those who suffered from Autism. Dr. Perrin admitted that according to defendant's medical records, he had never been diagnosed with Autism. She based her decision only on her tests and interview with defendant, and discussions with his lawyers. She never contacted his family. Dr. Perrin acknowledged defendant had lived a normal life until this incident.
C. REBUTTAL
Dr. Sean Evans was a neurologist. He had diagnosed persons who suffered from Autism. Dr. Evans read the police reports in this case and observed the interview of defendant by Investigator Bowen. He also read Dr. Perrin's report.
Dr. Evans explained that Autism involved abnormalities in verbal and nonverbal communication skills. Further, a person with Autism also needed to have a routine or they would feel ill at ease. There was a spectrum for those who suffered from Autism.
Dr. Evans did not necessarily agree with Dr. Perrin's diagnosis. He believed that in order to get an accurate diagnosis, a person's work and social history throughout his or her life had to be evaluated. The tests used by Dr. Perrin on defendant were primarily designed to diagnose children. It was also important to understand how the person conducted his or her daily life.
Based on the June 14 interview, the fact that defendant said he chased after Bungato so she would not tell anyone about her injuries, and the fact defendant tried to preserve Bungato's body to stop the smell, were indications he knew the consequences of his actions. Dr. Evan believed that if defendant was Autistic, it was on the very mild end of the spectrum. A person on the mild end of the spectrum would have the ability to plan and carry out his actions. The person would understand the negative consequences of his or her actions.
DISCUSSION
A. INSUFFICIENT EVIDENCE OF PREMEDITATION AND DELIBERATION
Defendant contends there was insufficient evidence of premeditation and deliberation to support a finding of first degree murder. Specifically, he hit Bungato with the bat to teach her a lesson, not because he intended to kill her. Moreover, if he intended to kill Bungato, he could have used the gun that was in his house. Defendant contends this court must reverse the premeditation finding.
"Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation. . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence." (People v. Perez (1992) 2 Cal.4th 1117, 1124.) "[T]he relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant premeditated the murder." (Id. at p. 1127.)
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187.) To prove one variety of first degree murder, the prosecution must show a willful, deliberate and premeditated killing. If it fails to do so, the murder is a second degree murder. (§ 189.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the Supreme Court set forth factors that subsequent courts have described as a useful "framework" for analyzing the sufficiency of circumstantial evidence to support a jury finding of premeditation and deliberation. (See People v. Perez, supra, 2 Cal.4th at p. 1125.) Those factors include (1) evidence of prior planning or preparation to carry out the killing; (2) evidence of motive; and (3) evidence of the circumstances and manner of the killing. (Anderson, at pp. 26-27.)
"'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."'" (People v. Villegas (2001) 92 Cal.App.4th 1217, 1224.) "'"Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."'" (Ibid.)
Here, as to planning, we look to what the defendant did prior to the actual killing, which shows he was engaged in activity directed toward the killing of Bungato. (Anderson, supra, 70 Cal.2d at pp. 26-27.) According to defendant, he was upset with Bungato as to why she wanted his passwords for his bank account and for asking him what he was going to do with his money. Bungato went to the bathroom for five to 10 minutes. During that time, defendant went to another room and retrieved the baseball bat. Based on his own testimony, he hid the bat so she would not see it when she exited the bathroom. When she came out and ignored him, he hit her in the back of the head. Blood was found on the carpet and the couch, which corroborated that Bungato's injuries were sustained in the living room. Her injuries were consistent with her being hit in the back of the head. Outside, blood was found surrounding Bungato's body showing that even though she tried to escape, he chased after her, inflicting more blows.
This evidence showed planning. Defendant retrieved the bat to hit Bungato over her head and on her body. Defendant contends that if he intended to kill Bungato, he could have retrieved the shotgun; this evidence is not conclusive that defendant did not plan to kill Bungato. Initially, defendant was concerned about Bungato running outside and yelling for help. He may have equally been concerned that a shotgun blast would be heard by neighbors. Further, there was no evidence presented that the shotgun was in working order. Finally, defendant wanted to teach Bungato a lesson; he may have wanted to use the bat to extend the agony for her.
Defendant also had a motive to kill Bungato. Motive involves facts about the defendant's relationship with Bungato from which the jury could reasonably infer he had a motive to kill her. (Anderson, supra, 70 Cal.2d at p. 27.) Despite there being some positive aspects of their relationship, it was clear defendant spent a large amount of money on Bungato and that she asked him to buy her things. The jury could reasonably conclude he was tired of giving her money and decided the best solution was to kill her.
Additionally, the manner of the killing shows premeditation and deliberation. The manner of killing involves the examination of the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take Bungato's life. (Anderson, supra, 70 Cal.2d at p. 27.) Bungato suffered from at least 19 abrasions and lacerations on her head. The pathologist who performed the autopsy stated that it would require "significant" force to make these lacerations. Blood was found in the living room of the home on the couch and carpet. In addition, blood was discovered splattered around her body outside. It was clear that defendant hit Bungato with the bat several times in two different locations. The jury could reasonably conclude that the manner of the killing showed premeditation and deliberation. If defendant wanted to just "teach her a lesson" he did not have to hit her multiple times in the head.
Finally, the fact that defendant left Bungato to decompose on his property for one week after he hit her with the bat, rather than attempting to get her help, supported that he committed the murder with premeditation and deliberation. The jury could reasonably conclude that defendant had no regard for Bungato's life.
Based on the foregoing, the evidence supports the jury finding premeditation and deliberation.
B. INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO REQUEST CALCRIM NO. 522
Defendant contends that he received ineffective assistance of counsel by his counsel failing to request the pinpoint instruction of CALCRIM No. 522 because the evidence supported the instruction to the jury that provocation could negate premeditation and deliberation to reduce first degree murder to second degree murder.
1. ADDITIONAL FACTUAL BACKGROUND
Defendant asked for an instruction on voluntary manslaughter based on provocation. Defendant's counsel argued there was a series of events that occurred resulting in provocation; which included that Bungato used defendant for his money, she ignored him, she called him names including "Jew" and she abused him. These events led to him getting pushed over the edge and "losing it."
The trial court first noted, "What's missing in the analysis of [defendant's counsel] is that the provocation must be a provocation that would cause a person of average disposition to act rashly and without due deliberation." The trial court felt that the provocation being offered in this case did not "even come close to meeting the legal standard that would allow me to send this to the jury." The trial court set forth the standard: "It has to be something that an average person—an average person would also find to be so provocative that it would cause them to act rashly and without due deliberation." The provocation in this case was Bungato asking and receiving financial assistance. The trial court noted, "I can't imagine any human being, any person of average disposition being so provoked by somebody asking for assistance that you routinely give that it would cause you to, quote, go over the edge and act rashly." Further, ignoring defendant and "bringing up his concerns about her asking for help or receiving help without due respect for him" was not legal justification for a killing. A person of average disposition would not "fly off the handle" if someone would not discuss something.
Further, the fact that several months before the murder she asked for bank account information was not enough to support a voluntary manslaughter instruction due to provocation. The trial court further found, "The insulting names that she used, calling him a Jew, or making fun of his hair, again, there's absolutely no—no evidence that a person of average disposition would react rashly and violently like this because somebody made fun of their hair. With regards to the comment about it being Jewish, quite honestly, again, the standard here is what would a person of average disposition, not an anti-Semite or Nazi, of average disposition be offended by that comment or so provoked that they would act violently."
The trial court also looked to what took place immediately preceding the attack. Defendant and Bungato had a good day together. Defendant reacted to her asking what he was going to do with his money. The trial court then stated, "Defendant, on his own, had reacted to her simply asking him about what he was intending to do with his money. Again, would any person of average disposition find that comment, even in the context of all of the financial assistance the defendant has given her, to be so provocative that they would react rashly and without due deliberation? I don't think even irrational people would respond in that manner. And as a matter of law, this Court can't find that this is adequate legal provocation, because a person of average disposition would never act like this." The trial court found that the instruction on voluntary manslaughter based on provocation was not necessary.
Defendant's counsel objected to the determination but recognized it was a well-reasoned finding. The trial court then further noted that Bungato's act of walking away from defendant and not listening to him just before he struck her with the bat could never be considered provocation. Further, the accumulation of all the things she did was not enough to support provocation. The trial court intended to give involuntary manslaughter because the evidence suggested that he did not have the intent to kill or did not appreciate the dangerousness of his conduct.
2. ANALYSIS
"First degree murder is an unlawful killing with malice aforethought, premeditation, and deliberation. [Citation.] Malice may be express (intent to kill) or implied (intentional commission of life-threatening act with conscious disregard for life). [Citation.] Second degree murder is an unlawful killing with malice, but without the elements of premeditation and deliberation which elevate the killing to first degree murder. [Citation.] To reduce a murder to second degree murder, premeditation and deliberation may be negated by heat of passion arising from provocation. [Citation.] If the provocation would not cause an average person to experience deadly passion but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder. [Citation.] If the provocation would cause a reasonable person to react with deadly passion, the defendant is deemed to have acted without malice so as to further reduce the crime to voluntary manslaughter." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.)
CALCRIM No. 522 provides "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.] [¶] [Provocation does not apply to a prosecution under a theory of felony murder.]" There is no sua sponte duty to instruct the jury with CALCRIM No. 522. (People v. Hernandez, supra, 183 Cal.App.4th at pp. 1333-1334; People v. Middleton (1997) 52 Cal.App.4th 19, 31-33, disapproved on other grounds by People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3.)
Defendant, recognizing there was no sua sponte duty to give the instruction, contends his counsel was ineffective for failing to request the instruction. "To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland v. Washington (1984) 466 U.S. 668, 694[].)" (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
"We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.) We will reverse on the ground of ineffective assistance of counsel "'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.'" (People v. Zapien (1993) 4 Cal.4th 929, 980).
Defendant has failed to demonstrate that there could be no rational tactical purpose for his trial counsel's failure to request that the trial court instruct the jury under CALCRIM No. 522, as is required to support an ineffective assistance of counsel claim on appeal. Such instruction would have instructed the jury to determine whether defendant only committed second degree murder because there was no premeditation or deliberation.
Defendant's counsel had asked for the provocation instruction to reduce defendant's crime to voluntary manslaughter. When that was rejected by the trial court, and defendant does not contend the trial court erred by refusing the instruction, defendant's counsel argued to the jury that defendant was only guilty of involuntary manslaughter. Defendant's counsel never argued to the jury that it should reject that defendant committed first degree murder and only find second degree murder despite the jury being instructed that if it found defendant was guilty of murder it must decide whether it was first or second degree murder. Instead, defendant's counsel argued to the jury that there was no specific intent to kill that would support either first or second degree murder. Defendant's counsel argued that defendant was only guilty of involuntary manslaughter and that his mental state impaired his ability to form specific intent. "Defendant has not overcome the presumption that counsel's omission could be considered sound trial strategy." (People v. Thomas (1992) 2 Cal.4th 489, 531.) Defendant's counsel could reasonably conclude that the jury would find defendant guilty of second degree murder based on the brutality of the crime if he had argued this theory to the jury.
Based on the foregoing, it is apparent from the record that defendant's counsel chose to argue to the jury defendant was only guilty of involuntary manslaughter and not to argue that he was only guilty of second degree murder. Defendant's failure to ask for CALCRIM No. 522 was consistent with this rational tactical decision. We conclude that defendant has failed to demonstrate that there could have been no rational tactical purpose for his trial counsel's failure to request that the court instruct the jury with CALCRIM No. 522. Defendant's claim that trial counsel was unaware of the concept of provocation to mitigate first degree murder to second degree murder is simply not supported by the record. We need not reach the issue of whether defendant has demonstrated prejudice.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.