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People v. Acosta

California Court of Appeals, Second District, Fourth Division
Jun 11, 2024
No. B325776 (Cal. Ct. App. Jun. 11, 2024)

Opinion

B325776

06-11-2024

THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE ACOSTA, Defendant and Appellant.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County Nos. VA152425, VA154932, Debra Cole-Hall, Judge. Affirmed.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.

MORI, J

Defendant and appellant Enrique Acosta shot and killed his estranged wife, Yvonne Acosta, inside the entryway of a Kohl's department store in front of their eight-year-old son, E.A. Defendant was convicted, among other offenses, of first degree murder (Pen. Code, § 187, subd. (a)) and felony child abuse (id., § 273a, subd. (a)).

Subsequent references to statutes are to the Penal Code.

On appeal, defendant contends the trial court erred in denying his section 1118.1 motion for acquittal on the felony child abuse count. He also contends the court failed to adequately instruct the jury on provocation and premeditation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Domestic Violence Conviction

In November 2020-approximately one month before the killing at issue in this case-defendant pled no contest to inflicting corporal injury on Yvonne despite having a prior domestic violence conviction. (§ 273.5, subd. (f)(1).) The sentencing hearing was initially scheduled for February 2021 but ordered to trail the proceedings in the homicide case.

Defendant and Yvonne share the same last name. For ease of reading, we refer to them by their first names.

B. Homicide Trial Evidence

Defendant shot Yvonne five times inside the entryway to a Kohl's department store on December 22, 2020. Yvonne died from gunshot wounds to her chest, side abdomen, back, neck, and arm. Two of the shots caused "through-and-through gunshot wound[s]" in which no projectile was recovered from Yvonne's body. The lack of soot or stippling to each gunshot wound was consistent with an indeterminate range of gunfire.

1. Prosecution Evidence

Yvonne's mother, Lydia Rodriguez, testified Yvonne had been married to defendant for five years. At the time of her death, Yvonne and defendant had a 22-year-old daughter (Autumn) and eight-year-old son (E.A.). Due to defendant's verbal and physical abuse of Yvonne, the couple separated more than a year before the shooting.

Defendant was previously incarcerated for various acts of domestic violence against Yvonne.

Sometime in October 2020, defendant asked an acquaintance, Andrew Roble, if he could borrow a gun. Roble declined. On December 6, 2020, defendant asked Roble for .357 or .38 caliber bullets. Roble again declined.

a. The Shooting

Several percipient witnesses testified about the shooting. We recite Rodriguez's testimony before turning to others.

Rodriguez testified that around 5:30 p.m. on December 22, 2020, Yvonne drove her and E.A. to a Kohl's department store in Whittier. Yvonne drove to the store at defendant's request to transfer a credit card transaction from his and Yvonne's joint account to Yvonne's separate account. Yvonne parked her car next to defendant's gray sedan in the parking lot. Yvonne and E.A. walked into the store, and defendant walked quickly behind them. Rodriguez remained inside Yvonne's car.

Around 5:45 p.m., Rodriguez received a phone call from Yvonne. Yvonne told Rodriguez, "Mom, I'm -- come and get the baby cause I'm scared." As Rodriguez attempted to get out of Yvonne's car, she heard two "pops" that sounded like gunshots. As she continued to open the car door, Rodriguez saw defendant running out of the store towards his car. Defendant got inside, drove in reverse, and "swiped" Yvonne's car before driving away.

b. Other Percipient Witness Testimony

Erika Sanchez worked at Kohl's and assisted Yvonne and defendant with their transaction. Sanchez explained, "They wanted me to refund some items that she had bought, I guess, on his credit card. And so they wanted me to refund it and then put it on her credit card." Defendant appeared upset at Yvonne for purchasing items on his account. Sanchez heard Yvonne tell defendant, "Fine. Fine. I'll take it off," and, "It's okay. You can go. Just leave." Sanchez watched the couple and E.A. walk towards the west entryway doors.

Soila Moore, a store manager, saw defendant, Yvonne, and E.A. walking towards the store entryway. Moore overheard defendant aggressively tell Yvonne, "You always do this kind of shit. Just problems. You're causing problems." As they got to the automated doors, Yvonne responded, "You know, just leave. Um, you got what you wanted. Go ahead and go." Defendant yelled at Yvonne to leave the store with him, but Yvonne refused. Moore called 911 and was on the line with a dispatcher when she saw defendant pull a silver gun from his waistband. Defendant pointed the gun toward the front side of Yvonne's face. From a distance of four-to-five feet, defendant fired four gunshots at Yvonne as E.A. stood outside the automated entryway doors.

Cashiers Katilyn Lopez, Ashely Madrid, and Isabella Paglica were working store registers near the entryway when they heard defendant and Yvonne arguing by the doorway and shopping carts. Lopez testified E.A. was "on the opposite side of [Yvonne] -- on the opposite side of the door. She was towards the right; he was towards the left." Defendant demanded Yvonne leave with him. Yvonne declined and "sound[ed] really scared." Lopez saw defendant grab Yvonne's arm before retrieving a firearm from his right side. Defendant pointed the gun at her abdomen and fired five shots. Paglica also saw the argument near the entryway. Yvonne was "crying on the phone" near the doorway and glass entryway wall while E.A. "kind of [stood] on the side" just outside the opened doorway. Paglica saw defendant pull out a small gun from his waistband and fire five shots at Yvonne's chest.

Madrid testified to a substantially similar scenario.

Jasmin Rodriguez was shopping inside the store and heard defendant and Yvonne arguing near the entry doorway. She heard Yvonne tell defendant to "stay away." Defendant said to E.A., who was standing "[r]ight by them" about four feet away, "I'm sorry. This is what your mom deserves." Defendant pulled out a gun and shot Yvonne about six times.

Robert Archuleta and his wife saw defendant and Yvonne arguing at three different locations in the store. At all times, E.A. was next to Yvonne. Archuleta saw the couple and child by the glass doorway and overheard them arguing about leaving together. Yvonne appeared "[v]ery scared." Archuleta told store employees to call the police and walked between the couple to disrupt them. As he walked up, Archuleta saw defendant pull out a revolver, hold it near the height of his head, and fire several shots at Yvonne from a distance of four-to-five feet. Yvonne held up her left hand to block the shots and was hit in the chest. During the shooting, E.A. was "right at [Yvonne's] side" at the entryway near a long glass window with double doors.

Gary Escobedo attended to Yvonne immediately after the shooting and saw E.A. kneeling over her face-down body. E.A. held onto Yvonne's hand as Escobedo continued administering CPR.

Escobedo also testified he saw E.A. next to defendant inside the entryway doors "a little bit back" during the shooting. Surveillance footage proved Escobedo incorrect on this point.

None of the witnesses heard Yvonne threaten defendant or saw her make any threatening or lunging movements toward him.

c. Crime Scene Investigation

Whittier Police Department Sergeant Jake Junge, the investigating officer in this case, retrieved video surveillance of the shooting. During trial, Sergeant Junge described still photographs taken from the video surveillance footage as follows:

"Yvonne [ ] is on the phone. She's unwilling to go outside with [defendant], ....He appears to be encouraging her to go outside. [¶] Meanwhile, their son is standing just outside of the store."

According to Sergeant Junge, the entryway door area was approximately 10-to-12 feet away from where Yvonne's body came to rest. At the time of the shooting, E.A. was standing on the outside area of the entryway doors facing into the doorway.

The video footage showed automated, glass double-doors that were opened during the shooting. Walls made of glass panels stood on both sides of the automatic doors. The surveillance footage was played for the jury.

We have independently reviewed the video surveillance footage.

Sergeant Junge also identified several impact marks from expended rounds to the area where Yvonne was shot. One bullet hole was found on a wooden door that was connected to a panel of glass in the wall beside the automated entryway doors. Another impact mark was found on the metal frame of the glass panels.

Sometime after the shooting, defendant sent text messages to Yvonne's sister, Belinda Rodriguez. Belinda testified defendant had been frustrated with Yvonne and "begged her for the longest time to stop."

In one text message, defendant stated he "told her for the longest she had no care for anyone but herself [and I] begged her to stop being the way she became[. People] only ca[n] take so much and she went to[o] far." He then said, "It's sad for [E.A.] I told her to[o] many times about what she does in front of him and how she treats him."

d. Defendant's Interview

Around 2:00 a.m. on December 23, 2020, the Barstow Police Department was advised there was a suspect in a Whittier murder investigation driving in the area. Around that time, Officer Phillip Ragle ran a license plate on defendant's silver Honda Civic. Officer Ragle and his partner stopped the car and detained defendant pending an investigation. During an inventory search, Officer Ragle found a .357 revolver in a bag sitting on the front passenger seat. The gun had two rounds of ammunition in the cylinder.

Sergeant Junge interviewed defendant the following day. The interview was audio recorded and played for the jury. Initially asked if something made him upset, defendant responded, "There's just a lot going on, man, you know? I begged for the longest [for peace]." Defendant described the difficulty separating from Yvonne and how she disrespected him. Defendant accused Yvonne of taking his money, monitoring his whereabouts, and provoking him in front of their child, E.A. Defendant also raised "[c]heating issues" with Yvonne and defendant's coworkers, including a man named William. Defendant said, "I begged her for so much to, like, tell me what I could do. What in the world I can do? Please. Everything's just negative ...."

Defendant accused Yvonne of using their joint Kohl's account to make purchases for herself. Yvonne had done this several times.

Asked why Yvonne refused to go outside the store with him, defendant replied, "Well, because . . . she was talking shit and I said -- she said something.... I said something about, you know what, you're fuckin' luck ran out." Right before shooting Yvonne, defendant "told [E.A.] to come in" because the child was standing outside the store. Defendant admitted he "might have told him, sorry" before shooting Yvonne. When asked if "Yvonne would have walked outside with [him]," defendant interjected and said, "Nothing would have happened, man."

2. Defense Evidence

In his own defense, defendant testified he carried a gun for protection. Defendant met with Yvonne at the Kohl's department store knowing a court order prohibited them from having contact. When they finished the credit card transfer, Yvonne told defendant he could leave.

During his interview with Sergeant Junge, defendant stated he did not always carry a firearm. But for "the last couple days," defendant carried the firearm "everywhere . . . [because Yvonne] made threats towards me. I don't know what the fuck's going to happen when I'm out there, you know?"

Defendant and Yvonne argued while walking toward the store exit. Defendant asked Yvonne for whom she had purchased the clothes. Yvonne replied, "Don't worry about it, it's none of your fucking business." Defendant persisted, and Yvonne eventually told him the purchase was for his coworker William. Yvonne confirmed she was having sexual relations with William. Yvonne told defendant that she had been having sexual relations with "Will; that he had a bigger dick than [defendant] did, and he pleased her better than [defendant] did." Defendant was enraged and "couldn't see straight." Defendant did not inform the police about this conversation because he felt "embarrassed to tell a complete stranger, especially another man, that something like this was happening with [his] wife."

Defendant did not know "exactly how far [E.A.] was from [defendant]" and "didn't know he was standing right inside the doors when [he] shot" Yvonne. At some point, E.A. ran outside but came back and stood right outside the entryway doors. Defendant did not recall telling E.A. he was sorry before shooting Yvonne. Rather, he made the remark after the shooting and while running from the store.

Defendant admitted he had previously abused Yvonne and threatened to kill her. He also admitted Yvonne's infidelity issues persisted "for some time." Defendant acknowledged he suffered convictions in 2013, 2019, and 2020 for making criminal threats to Yvonne (§ 422) and inflicting injuring on her resulting in a traumatic condition (§ 273.5, subd. (f)(1)). At the time he killed Yvonne, defendant knew he was out of custody on the prior domestic violence case.

B. Information, Jury Instructions, and Verdicts

By first amended information, defendant was charged with first degree murder (§ 187, subd. (a); count 1), child abuse under circumstances likely to cause great bodily injury or death (§ 273a, subd. (a); count 2); violating a domestic violence protective order (§ 166, subd. (c)(4); count 3); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4); and misdemeanor hit and run driving resulting in property damage (Veh. Code, § 20002, subd. (a); count 5). It was further alleged defendant personally used a firearm during the commission of murder (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)), suffered four prior convictions involving acts of violence (§§ 166, subd. (c)(4), 139, subd. (c)), and suffered previous convictions of two prior serious and/or violent felonies (§§ 667, subds. (b)-(j), 1170.12). The information alleged various aggravating factors on counts 1 through 4. (Cal. Rules of Court, rule 4.421).

The court bifurcated trial on the prior conviction allegations and aggravating factors. Following trial on the charged offenses in June 2022, the jury found defendant guilty as charged, found the murder to be first degree, and found true the allegation defendant personally used a firearm during the commission of murder (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)).

Defendant waived his right to a jury trial on his prior conviction and sentence enhancement allegations. Defendant admitted he previously suffered qualifying convictions under counts 3 and 4, and two prior strike convictions for criminal threats (§ 422) and voluntary manslaughter (§ 192, subd. (a)). He also admitted the aggravating circumstances alleged in the information. The court denied defendant's motion to dismiss his prior strike convictions.

On November 10, 2022, defendant was sentenced in both cases to an overall term of 27 years 4 months plus 75 years to life. Defendant timely appealed.

The court sentenced defendant as follows. On count 1, 75 years to life under the Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12), plus 10 years for the personal use of a firearm (§ 12022.5, subd. (a)). On count 2, the principal determinate term, an upper-base term of six years doubled under the Three Strikes Law. On counts 3 and 4, consecutive one-third middle-terms of eight months, each doubled to 16 months under the Three Strikes Law. On count 5, a stayed term of 180 days in county jail. On the trailed case for injuring a spouse, a consecutive, one-third middle-term of 16 months, also doubled under the Three Strikes Law.

DISCUSSION

A. Sufficiency of Evidence of Felony Child Abuse

Defendant contends the trial court erred in denying his section 1118.1 motion for acquittal as to the felony child abuse count. He argues there was insufficient evidence his conduct was "likely to produce great bodily harm or death" to E.A. We disagree.

1. Additional Background

At the close of the People's case, defense counsel made a section 1118.1 motion "as to all counts but in particular as to count 2" for felony child abuse. In response, the prosecutor stated his theory was "shooting a gun five times where a child is within five to six feet or 10 feet, bullets can ricochet or hit other people." The trial court asked, "Wasn't the child outside?" The prosecutor replied, "The child was standing right outside the door. But a bullet could still bounce off the railing and hit the child." After the court's question, the prosecutor stated he could proceed under a theory of mental suffering rather than placing E.A. at risk of death or great bodily harm. The court replied:

"I want you to proceed on whatever you want to proceed on. But I think as to him outside the door, I don't think he was in danger. If he was -- if they were in the doorway, maybe, but they were off to the side. But if you want to indicate that you're going to go under the theory of mental suffering to the child, then that's a different -- I think there is sufficient evidence of that."

The prosecutor stated he would proceed under a theory of mental suffering. The court denied defendant's motion.

When instructing the jury on the charged offenses, the court gave CALCRIM No. 821 as follows:

"The defendant is charged in Count 2 with child abuse likely to produce great bodily harm or death ....[¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully caused or permitted a child to suffer unjustifiable mental suffering; [¶] 2. The defendant caused or permitted the child to suffer under circumstances or conditions likely to produce great bodily harm or death; [¶] AND [¶] 3. The defendant was criminally negligent when he caused or permitted the child to suffer[.]"

CALCRIM No. 821 further instructed "[t]he phrase likely to produce great bodily harm or death means the probability of great bodily harm or death is high."

When discussing the shooting during closing argument, the prosecutor argued E.A. was "standing just a few feet away right outside of the exit door, in view of seeing what is about to happen to his mother." He argued the "shooting was in close range to [E.A.] where he could see everything which put [E.A.] under circumstances likely to produce great bodily harm." When discussing the elements of the offense, the prosecutor stated, "defendant willfully caused or permitted [E.A.] to suffer unjustifiable mental suffering[ and] caused or permitted [E.A.] to suffer under circumstances or conditions likely to produce great bodily harm or death."

2. Governing Principles and Standard of Review

Section 273a, subdivision (a), which defines felony child abuse, "proscribes 'four branches' or categories of conduct." (Bom v. Superior Court (2020) 44 Cal.App.5th 1, 12.) As relevant here, section 273a, subdivision (a) prohibits any person "who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable . . . mental suffering, . . . ." Subdivision (b) of that statute defining misdemeanor child abuse prohibits conduct "under circumstances or conditions other than those likely to produce great bodily harm or death, ...." (See People v. Burton (2006) 143 Cal.App.4th 447, 454, fn. 4 [primary difference between felony and misdemeanor child abuse "depends on whether the acts . . . involved circumstances or conditions likely to produce great bodily injury or death"].)

In a case tried before a jury, at the close of evidence on either side and before the cause is submitted for decision, the court "shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense . . . on appeal." (§ 1118.1.)

We review the trial court's ruling under section 1118.1 independently "under the standard employed in reviewing the sufficiency of the evidence to support the conviction." (People v. Houston (2012) 54 Cal.4th 1186, 1215; People v. Whalen (2013) 56 Cal.4th 1, 55.) Where, as here, the motion for acquittal was made at the close of the prosecution's case, we consider the evidence then in the record. (People v. Smith (1998) 64 Cal.App.4th 1458, 1464.)

In conducting our review, we review the record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a jury could find the defendant guilty beyond a reasonable doubt. (People v. Cole (2004) 33 Cal.4th 1158, 1212.) We presume in support of the judgment the existence of every fact the jury reasonably could infer from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (Ibid.)

3. Analysis

Defendant concedes he caused E.A. mental suffering under section 273a, subdivision (a), but argues the evidence was insufficient to support a finding he did so "under circumstances or conditions likely to produce great bodily harm or death." (§ 273a, subd. (a).)

The term "likely" in section 273a does not serve as a measure to make "the difficult and imprecise task of predicting future human behavior. Rather, it is merely a measure for determining the risk of present injury created by external and tangible circumstances or conditions." (People v. Chaffin (2009) 173 Cal.App.4th 1348, 1352 (Chaffin).)

There is currently disagreement on the definition of "likely" for purposes of felony child abuse. Several courts have construed the term to mean '""the probability of serious injury is great"'" (Chaffin, supra, 173 Cal.App.4th at p. 1352, quoting People v. Sargent (1999) 19 Cal.4th 1206, 1223 (Sargent)), while others have defined "'likely'" to mean "a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204 (Wilson); see also People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 917, 922 [statement in Sargent was "said in passing" such that the term "likely to engage in acts of sexual violence" under the Sexually Violent Predators Act meant a "serious and well-founded risk" of reoffending].) Regardless of definition, determining whether a child was placed under circumstances or conditions likely to produce great bodily injury "is a question for the trier of fact." (People v. Clark (2011) 201 Cal.App.4th 235, 245 (Clark), citing Sargent, supra, 19 Cal.4th at p. 1228.)

Under either definition, we conclude substantial evidence supports the jury's finding defendant placed E.A. under circumstances or conditions likely to produce death or great bodily injury. In making this determination, we have considered the "circumstances and conditions a reasonable jury could consider [, including but] not limited to, (1) the characteristics of the victim and the defendant, (2) the characteristics of the location where the abuse took place, (3) the potential response or resistance by the victim to the abuse, (4) any injuries actually inflicted, (5) any pain sustained by the victim, and (6) the nature of and amount of force used by the defendant." (Clark, supra, 201 Cal.App.4th at p. 245, fn. omitted.)

The evidence adduced by the prosecution showed defendant shooting Yvonne five times inside the entryway of a Kohl's Department store. Throughout the shooting, E.A. stood just outside the glass double-doors leading outside, which were opened and in close proximity to defendant and Yvonne. A bullet hole was found in an adjacent wooden door connected to a glass-paneled wall on one side of the entryway. An impact mark from an expended round was located on the metal framing around the glass-paneled wall. These impact marks demonstrate not only the extent of deadly force used, but also the danger of bullets ricocheting and placing E.A. and others near the entryway at risk of death or great bodily harm. (See People v. Hansen (1994) 9 Cal.4th 300, 311 ["The tragic death of innocent and often random victims, both young and old, as the result of the discharge of firearms, has become an alarmingly common occurrence in our society"], overruled in part on another ground in People v. Chun (2009) 45 Cal.4th 1172; Industrial Indem. Co. v. Industrial Acci. Com. (1950) 95 Cal.App.2d 804, 806 (Industrial Indem. Co.) [fired bullet from revolver inside bar "missed Walker, ricocheted off the bar and struck Mrs. Baxter in the back, inflicting the injuries which resulted in her death a few minutes later"].)

Defendant purports to distinguish the line of cases involving ricocheted bullets striking victims. (E.g., Industrial Indem. Co., supra, 95 Cal.App.2d at p. 806; People v. Pham (2011) 192 Cal.App.4th 552, 556.) However, defendant fails to recognize the point these cases make-that ricocheted bullet fragments can kill or inflict significant harm to those near the line of fire. Despite being outside the entryway doors, E.A. was near the line of fire with open air between himself, defendant, and Yvonne. Under these circumstances, a reasonable jury could find E.A. at danger of being killed or significantly injured from stray bullet fragments. (See People v. Salazar (2016) 63 Cal.4th 214, 242 [appellate courts must accept logical inferences the jury might have drawn from the evidence].)

We further reject defendant's reliance on the trial court's initial hesitance to permit the felony child abuse charge to proceed. (See People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11 ["'we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm'"].)

In his reply brief, defendant avers the Attorney General failed "to recognize that the trial court found there was an absence of substantial evidence to establish that E.A. was in a situation where his physical safety was endangered." This is an incorrect characterization. The court did not make findings during its colloquy with counsel; instead, it gave its reasoning on the issue. As defendant acknowledges, our review is limited only to the facts in the record of the criminal trial at the time defendant made his section 1118.1 motion.

By convicting defendant of felony child abuse, the jury necessarily found his actions created a high probability of great bodily harm or death as instructed under CALCRIM No. 821. This finding is at least the functional equivalent to a finding defendant placed his son in "substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." (Wilson, supra, 138 Cal.App.4th at p. 1204.) As we find substantial evidence supports this finding, we find no error in the denial of defendant's section 1118.1 motion.

B. Claims of Instructional Error: Provocation and Deliberation

Defendant raises two claims of instructional error regarding the effect of provocation on second degree murder and the definition of premeditation for purposes of first degree murder. We address each claim in turn.

1. Relevant Proceedings

The court and parties agreed to a package of instructions to give to the jury. Within that package was the instruction on first degree premeditated murder. That instruction (CALCRIM No. 521) provided:

"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death.

"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."

The court then instructed the jury on provocation under CALCRIM No. 522 as follows:

"Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide.

"If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter."

The court also instructed the jury with CALCRIM No. 570 on voluntary manslaughter based on the heat of passion. That instruction directed the jury to consider a "killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." To find a sudden quarrel or heat of passion, CALCRIM No. 570 required (1) a provocation; (2) defendant acted rashly and under intense emotion obscuring his judgment; and (3) the provocation would have caused a person of average disposition to act rashly. In addition, the prosecution was required to prove "beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."

Defendant did not object to or request modifications or pinpoint instructions on any of these instructions or principles.

2. Governing Law

The trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Rogers (2006) 39 Cal.4th 826, 866 (Rogers).) This duty encompasses instructions on lesser included offenses supported by substantial evidence. (Id. at pp. 866-867.) Even where the court has no sua sponte duty to instruct, when it chooses to instruct on a principle, it must do so correctly. (People v. Castillo (1997) 16 Cal.4th 1009, 1015 (Castillo).) Once it discharges its duty to adequately instruct on the law, the court has no duty to give clarifying or amplifying instructions absent a request. (People v. Mayfield (1997) 14 Cal.4th 668, 778, overruled in part on another ground in People v. Scott (2015) 61 Cal.4th 363.) Pinpoint instructions, which "'relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case,'" should be given whenever requested and supported by the evidence; "'but they are not required to be given sua sponte.' [Citation.]" (Rogers, supra, at p. 878; accord, People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell) [failure to object to wording of instruction forfeits state law claim of error].)

We review claims of instructional error de novo "'in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citation.]" (Mitchell, supra, 7 Cal.5th at p. 579.) We assume the jurors are intelligent persons capable of understanding and correlating the instructions. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

3. Murder and Provocation (CALCRIM Nos. 521, 522, 570)

Defendant contends the trial court was required to instruct the jury on the effect of subjective provocation on the degree of murder. His claim of error is due to the fact the jury "was instructed on the objective test of provocation for voluntary manslaughter, [but] was not instructed that a different, subjective test applies to second degree murder."

Defendant did not object to the instructions on this basis or request a clarifying or pinpoint instruction below. (See Rogers, supra, 39 Cal.4th at p. 878 [CALJIC No. 8.73 is a pinpoint instruction]; People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333 (Hernandez) [same as to CALCRIM No. 522]; People v. Jones (2014) 223 Cal.App.4th 995, 1001 (Jones) [same].) He has thus forfeited the claim on appeal. (Rogers, supra, at pp. 878879.)

Anticipating this result, defendant contends his trial counsel provided ineffective assistance by failing to request a more "adequate" instruction on provocation. We disagree. (See People v. Kraft (2000) 23 Cal.4th 978, 1069 ["unless there simply could be no satisfactory explanation, the claim [for ineffective assistance] must be rejected on appeal"]; Castillo, supra, 16 Cal.4th at p. 1015 ["we need not inquire into why counsel failed to request an additional explanatory instruction because, . . . none was needed"].)

First degree murder is reduced to second degree murder when premeditation and deliberation are negated by heat of passion arising from provocation. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.) Unlike the objective heat of passion inquiry in the context of voluntary manslaughter, the test of provocation sufficient to negate deliberation and premeditation is entirely subjective. "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." (Hernandez, supra, 183 Cal.App.4th at p. 1332.) "This is a subjective test pertaining to the defendant's mental state." (People v. Ocegueda (2023) 92 Cal.App.5th 548, 557 (Ocegueda).)

Defendant acknowledges his argument on a more complete instruction on provocation has been rejected by several sister courts. Those courts found that CALCRIM No. 522, when read in context of other instructions given in this case (CALCRIM Nos. 521 and 570), adequately instructed that provocation could negate premeditation and deliberation. In Ocegueda, the court held "CALCRIM No. 522 correctly instructed that provocation may reduce murder from first degree to second degree and may further reduce a murder to manslaughter." (Ocegueda, supra, 92 Cal.App.5th at p. 558.) Similarly, in Jones, the court held "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]" (Jones, supra, 223 Cal.App.4th at p. 1001; accord, Hernandez, supra, 183 Cal.App.4th at p. 1334; Rogers, supra, 39 Cal.4th at p. 880 [rejecting argument challenging predecessor instruction, CALJIC No. 8.73].)

Defendant claims he raises a different argument than those considered in Ocegueda, Jones, and Hernandez. He argues none of these cases addressed whether "provocation" is a "legal term with a particular legal meaning in the context of second degree murder which differs from that in the context of voluntary manslaughter...."

We reject this argument for several reasons. First, the Ocegueda and Jones courts did consider the distinction between an objective standard of provocation for voluntary manslaughter and subjective standard for second degree murder. Both courts found no instructional error despite the absence of "a more specific 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; accord, Ocegueda, supra, 92 Cal.App.5th at p. 559 ["The instructions were therefore clear that the existence of deliberation and premeditation, including the theory that they were not present due to provocation, were based on Ocegueda's subjective mental state alone" and not based on an "objective test"].)

Second, defendant provides no definition or authority for the proposition that "provocation" carries a legal meaning differing from its nonlegal definition. (People v. Jennings (2010) 50 Cal.4th 616, 670.) As the Hernandez court noted, "Considering CALCRIM Nos. 521 and 522 together, the jurors would have understood that provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation." (Hernandez, supra, 183 Cal.App.4th at p. 1334.) Thus, in "this context, provocation was not used in a technical sense peculiar to the law, and we assume the jurors were aware of the common meaning of the term." (Ibid.)

We find Ocegueda, Jones, and Hernandez persuasive and apply their reasoning here. We find no reasonable possibility the instructions in this case "might have misled the jury to believe that to reduce murder from first to second degree, provocation must meet the same objective test that leads to a reduction to voluntary manslaughter." (Ocegueda, supra, 92 Cal.App.5th at p. 558.) In light of this conclusion, we reject defendant's ineffective assistance claim. (Id. at p. 561.)

4. Premeditation (CALCRIM No. 521)

Defendant lastly contends the version of CALCRIM No. 521 given to the jury incorrectly defined "premeditation" by informing the jury it need only find he decided to kill Yvonne before shooting her. Defendant focuses on the portion of CALCRIM No. 521 informing the jury he "acted with premeditation if he decided to kill before completing the acts that caused death." (Italics added.) To defendant, this informed the jury could find premeditation without finding defendant thought over his course of action in advance. (Citing People v. Booker (2011) 51 Cal.4th 141, 172 ["'"premeditation" means thought over in advance'"].)

Again, we disagree. The relevant instructions required the jury to find defendant premeditated the killing before convicting him of first degree murder. The instruction directed the jury that defendant "acted with premeditation if he decided to kill before completing the act that caused death." In addition, the jury was informed the "amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated." (Italics added.)

Considered together, these instructions required the jury to find defendant decided to kill before completing the act that caused death, or in this case, firing a gun at the victim at close range. By convicting defendant of first degree murder, the jury necessarily found he not only thought of killing Yvonne, but decided to kill before shooting her. This finding is consistent with well-defined law. (Accord, People v. Schuller (2023) 15 Cal.5th 237, 265 (conc. opn., J. Liu); People v. Halvorsen (2007) 42 Cal.4th 379, 419.)

To the extent defendant suggests the jury should have received an instruction requiring defendant to "think[ ] over the course of action in advance," we disagree. "To prove the killing was 'deliberate and premeditated,' it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of the defendant's act." (§ 189, subd. (d).) As the jury was properly instructed, "a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (CALCRIM No. 521; accord, People v. Koontz (2002) 27 Cal.4th 1041, 1080.) As a whole, the instructions correctly informed the jury defendant's acts causing Yvonne's death had to follow his decision to kill.

DISPOSITION

The judgment is affirmed.

We concur: CURREY, P. J. COLLINS, J.


Summaries of

People v. Acosta

California Court of Appeals, Second District, Fourth Division
Jun 11, 2024
No. B325776 (Cal. Ct. App. Jun. 11, 2024)
Case details for

People v. Acosta

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE ACOSTA, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Jun 11, 2024

Citations

No. B325776 (Cal. Ct. App. Jun. 11, 2024)