Opinion
E049513
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANK MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB059862)
ORDER MODIFYING OPINION
AND DENIAL OF PETITION
FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
Appellant's petition for rehearing is denied.
The opinion herein, filed on August 31, 2011, is modified as follows:
1. Page 8, second sentence of the first paragraph is deleted and replaced with: In and of itself, the testimony by Perez indicating she and the victim were using methamphetamine when defendant entered the room with the baseball bat is not enough to constitute legally sufficient provocation, which
would cause an ordinary, reasonable person to act rashly or without deliberation and reflection.
2. Page 8, fourth sentence of the first paragraph, the words "kill someone in the heat of passion," are deleted and replaced with "act rashly."
3. Page 9, last sentence of first paragraph is deleted and replaced with:
Thus, we cannot say it would be reasonable for a jury to infer defendant was actually provoked by the victim's methamphetamine use to act rashly because he was passionately opposed to illegal drug use by the victim and Perez in the home where his children were living.
4. Page 10, footnote 2 is deleted.
5. Page 10, just prior to the first full paragraph, insert the following:
During oral argument, defendant argued there was evidence of sufficient provocation to justify a voluntary manslaughter instruction based on People v. Najera (2006) 138 Cal.App.4th 212 (Najera), and an unpublished, noncitable case from the First Appellate District, Division Four, entitled People v. Beltran, review granted June 15, 2011, S192644 (Beltran). Although we reviewed these authorities in response to counsel's oral argument, they do not change our analysis or conclusion in this case. In Najera, the defendant argued his counsel was ineffective because he failed to object when the prosecutor argued the offense could only be voluntary manslaughter if a reasonable person would do what defendant did in response to the particular provocation shown by the evidence. (Najera, at
p. 223.) Although the Najera court rejected the ineffective assistance of counsel claim, it agreed with the defendant that the prosecutor's comment was improper. The court reasoned as follows: "The focus is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Ibid.) In Beltran, which is currently being considered by our Supreme Court, the defendant made a similar argument about the degree of provocation necessary to reduce a murder to a voluntary manslaughter.
Our conclusion in this case does not conflict with Najera or Beltran. Our analysis focuses on the asserted provocation—the testimony by Perez indicating she and the victim were using methamphetamine when defendant entered the room, combined with other testimony indicating defendant's two young sons were present in another part of the home. As outlined more fully ante, it is our view these circumstances would not have caused a reasonable person to act rashly rather than rationally, so a jury instruction on heat of passion or sudden quarrel was not necessary.
There is no change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.