Opinion
E064339
02-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ARSENIO DEVO MORGAN, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland, Scott C. Taylor, and Britton B. Lacy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF10002540) OPINION APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland, Scott C. Taylor, and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Arsenio Devo Morgan, a member of a Black gang, went to a party attended by members of a rival Hispanic gang. When he arrived, he shot and killed two Hispanic men, then ran away. According to the prosecution, defendant knew that rival gang members would be at the party, and he went there, armed, with the intent to kill. According to defendant, however, he did not know that rival gang members would be there. He was always armed, for self-protection; he fired only when rival gang members confronted him and appeared to be about to attack him.
A jury found defendant guilty on two counts of first degree murder; he was sentenced to multiple life terms.
Defendant contends that the trial court, after instructing that provocation can reduce first degree murder to second degree murder, erred by failing to define provocation. We will hold that the trial court was not required to define provocation because for purposes of the degree of the murder, this word has its ordinary, common meaning, and because the instructions as a whole adequately covered provocation.
I
FACTUAL BACKGROUND
We focus primarily on the facts relevant to defendant's claim that the jury was not properly instructed on provocation.
A. The Prosecution Case.
On the night of December 13-14, 2008, there was a party at a house on Enterprise Avenue near Ottawa Avenue in Riverside. Most of the guests were Hispanic. Some were members of a Hispanic gang called East Side Riva.
East Side Rivas' primary enemies were the 1200 Blocc Crips (a/k/a the Georgia Street Mob), a Black gang. Both gangs claimed much the same territory, including Enterprise Avenue. Defendant was a member of the 1200 Blocc Crips.
On the night of the party, a member of the 1200 Blocc Crips phoned defendant and told him about it. After hanging up, defendant said that he was "going to a Mexican party, . . . gonna go beat them all up . . . ."
When defendant arrived at the party, a group of Hispanic males were standing out front, in the driveway. At least one of them was an East Side Riva member. Two of the others, Ramiro Sanchez and Salvador Soliz, were not members of East Side Riva, although they were probably associates or "wannabes."
According to one eyewitness, a person "just walked up to the house and shot."
According to another eyewitness, "some black guy" arrived. One of the "homies" at the party asked him where he was from and if he "banged." The black guy said, "1200 Blocc." The homie said, "[W]hat's up then[?]" The black guy pulled out a gun, said, "You scared now?," and started shooting.
According to yet another eyewitness — who identified defendant as the shooter — defendant said, "Where you from, cuz?" Then he reached toward a gun. The witness said, "[W]atch out; he's packing." Defendant denied this, saying, "I ain't got no strap" and walked away. The Hispanic group moved closer to the house. Soon, however, defendant came running back, this time wearing a hoodie, and started shooting.
Defendant fired at least six shots. One witness testified that they were in two separate volleys, with enough time in between for people to remark on the first volley. Another witness heard defendant say "1200 Blocc" and "GSM" in between shots. Defendant then ran off.
Sanchez was hit by two bullets, one that went through his arm and one that punctured his liver. Soliz was hit by two bullets, one in the stomach and one in the back of the head. Both men died of their injuries.
Immediately after the shooting, defendant told an acquaintance "[t]hat he had a gun and some work was put in."
When defendant was in jail on a different charge, he told a fellow inmate that he shot and killed two guys at a party near Ottawa. He specifically said that he had gotten a phone call about "a Mexican party."
According to a gang expert , the primary activities of the 1200 Blocc Crips were murder, burglary, robbery, the possession of illegal weapons, and the sale of illegal drugs. Members of the 1200 Blocc Crips had been convicted of:
1. Robbery and possession of a controlled substance for sale, committed in October 2007;
2. Possession of methamphetamine for sale, committed in April 2008; and
3. Robbery, committed in November 2008.
In the gang expert's opinion, given in hypothetical form, the shooting benefited the 1200 Blocc Crips because it tended to intimidate people and to prevent people from cooperating with law enforcement.
B. The Defense Case.
Defendant took the stand. He admitted that he was a member of the 1200 Blocc Crips and that he fired the fatal shots.
Defendant explained that he had had several violent "run-ins" with rival gang members. As a result, he carried a loaded .38 revolver wherever he went, for self-protection.
On the day of the shooting, a fellow gang member phoned him and told him about the party. Defendant denied knowing that it was a predominantly Hispanic party. Enterprise was in 1200 Blocc Crips territory. He therefore assumed "that [his] homies would be there."
As he walked up to the house, he saw five or six men, at least some of whom were Hispanic, out in the driveway. Defendant admitted, "[i]t would have been . . . easy for [him] to just keep walking . . . ." However, he decided to try to walk around them and into the party. Only then did he realize that they appeared to be gang members (for example, they had shaven heads).
Just at that moment, one of the men stopped him and said, "[H]old up, you got to get searched . . . ." Defendant responded, "[Y]ou're not going to search me." The man said, "[W]ho the fuck are you anyway? Where are you from?" Defendant declared, "I'm Young Bear Loc from 1200 Blocc Crips." The man said, "East Side Riva. Fuck snails." As he said this, he stepped toward defendant, lifted his shirt, and reached around behind his back. The other men stepped up behind him. Somebody yelled, "[G]un."
"Snails" is a "diss" name for 1200 Blocc Crips.
Defendant believed that the man was going to pull out a gun. He felt that he had to shoot the men, or they would shoot him. He pulled out his gun and fired all six rounds, without a pause; then he ran.
Defendant admitted that initially, he denied being at the party at all; he did not tell anyone that the shooting was self-defense until almost five years after it occurred.
Defendant agreed that it would be considered disrespectful to the 1200 Blocc Crips for East Side Rivas to be having a party on Enterprise. He further admitted that killing two Hispanics "was a feather in [his] cap" and "was going to enhance [his] reputation."
II
PROCEDURAL BACKGROUND
Defendant's first guilt phase trial ended in a hung jury.
In his second guilt phase trial, defendant was found guilty on two counts of first degree murder. (Pen. Code, § 187, subd. (a), 189.) Multiple-murder and gang-murder special circumstances were found true. (Pen. Code, § 190.2, subds. (a)(3), (a)(22).) Enhancements for discharging a firearm and causing death were also found true. (Pen. Code, § 12022.53, subd. (d), (e).)
Gang enhancements (Pen. Code, § 186.22, subd. (b)) were charged, but the jury failed to return a verdict on them. On the prosecution's motion, the trial court dismissed them.
A penalty phase trial ended in a hung jury. The prosecution then elected not to seek the death penalty.
Defendant was sentenced to four consecutive life terms — two without the possibility of parole, and two with a minimum parole period of 25 years — along with the usual fines, fees, and miscellaneous sentencing orders.
III
FAILURE TO DEFINE "PROVOCATION"
Defendant contends that the trial court erred by failing to give a jury instruction defining provocation for purposes of reducing the degree of murder. Alternatively, he contends that his trial counsel rendered ineffective assistance by failing to request such an instruction.
A. Additional Factual and Procedural Background.
The trial court instructed the jury with CALCRIM No. 522, as follows:
"Provocation may reduce a murder from first degree to second degree. 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."
It did not give CALCRIM No. 570, regarding voluntary manslaughter — which would have included a definition of "provocation" for purposes of voluntary manslaughter — because defense counsel withdrew his request for it.
It was not asked to give any other instruction defining provocation, and it did not.
B. Discussion.
1. Failure to instruct sua sponte.
Provocation may reduce what might otherwise be first degree murder to second degree murder. This is because, subject to exceptions not applicable here, first degree murder requires premeditation and deliberation. (Pen. Code, § 189; People v. Delgado (2017) 2 Cal.5th 544, 571.) "[T]he '"existence of provocation . . . may . . . raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation"' . . . . [Citation.]" (People v. Carasi (2008) 44 Cal.4th 1263, 1306; accord, People v. Thomas (1945) 25 Cal.2d 880, 903-904.)
"Although trial courts, generally, have a duty to define technical terms that have meanings peculiar to the law, there is no duty to clarify, amplify, or otherwise instruct on commonly understood words or terms used in statutes or jury instructions. 'When a word or phrase "'is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.'" [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.]' [Citation.]" (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023.)
In People v. Cole (2004) 33 Cal.4th 1158, the Supreme Court indicated that provocation, for purposes of reducing the degree of murder, has its ordinary, nontechnical meaning. There, as here, the trial court instructed that the jury could consider evidence of provocation as bearing on whether the murder was first or second degree. (Id. at p. 1217.) It also instructed that heat of passion could negate deliberation. (Ibid.) The defendant argued that, once the trial court gave such instructions, it also had a duty to define provocation and heat of passion as they related to voluntary manslaughter. (Ibid.) The Supreme Court rejected this argument because there was insufficient evidence of voluntary manslaughter. (Ibid.; see also id. at p. 1216.) It added: "Provocation and heat of passion as used in the instructions here bore their common meaning, which required no further explanation in the absence of a specific request. [Citation.]" (Id. at pp. 1217-1218; accord, People v. Souza (2012) 54 Cal.4th 90, 118.)
Defendant argues that "[t]he nonlegal meaning of the word provocation relates to the nature of the act or thing that provokes and has no relation to the state of mind of the person who is being provoked." He concludes that "the non-legal definition . . . is insufficient because it fails to define a required mental state." The Oxford English Dictionary, however, defines provocation as, among other things: "The action of provoking or exciting anger, resentment, or irritation, esp. deliberately; action, speech, etc., that provokes strong emotion; an instance of this." (Oxford Engl. Dict. Online (2017) <http://oed.com> at def. 2a [as of Feb. 28, 2018].) Alternatively, it also defines it as: "A cause of irritation, anger, or resentment." (Id. at def. 2b.) These definitions do include a resulting mental state, of the very sort likely to interfere with premeditation and deliberation.
Defendant also argues, however, that a definition was necessary to make the jury aware of five separate legal principles regarding provocation. We discuss these seriatim.
First, defendant argues that the jury needed to be told that provocation can negate deliberation and premeditation. However, the instructions as a whole adequately indicated this. CALCRIM No. 521 informed the jury that first degree murder required that the defendant "acted willfully, deliberately, and with premeditation." CALCRIM No. 522 then added that "[p]rovocation may reduce a murder from first degree to second degree." Logically, the only way it could do this would be by disproving deliberation and premeditation. Moreover, the jury would have understood, as a matter of common sense, that provocation can cause a person to kill without deliberating and premeditating.
Second, defendant argues that the jury needed to be told that provocation is assessed according to a subjective standard. However, premeditation and deliberation themselves are subjective states. "The issue is whether the provocation precluded the defendant from deliberating. [Citation.] This requires a determination of the defendant's subjective state." (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.) In other words, provocation is already defined as something that causes the defendant to act without subjectively premeditating and deliberating.
In the law of homicide, provocation plays two different roles; in addition to negating premeditation and deliberation, it can also give rise to "heat of passion," which reduces murder to voluntary manslaughter. When used for the latter purpose, the provocation must meet an objective test: "The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment." (People v. Lee (1999) 20 Cal.4th 47, 60, italics added.) Because this is a technical legal requirement, it is something that the jury must be instructed on whenever "heat of passion" voluntary manslaughter is at issue. Thus, CALCRIM No. 570 states, in part, that voluntary manslaughter requires "provocation [that] would have caused a person of average disposition to act rashly and without due deliberation . . . ." (Italics added.)
By contrast, when provocation is used to reduce the degree of a murder, it does not have to meet an objective test. (People v. Carasi, supra, 44 Cal.4th at p. 1306; see also People v. Padilla (2002) 103 Cal.App.4th 675, 678; People v. Fitzpatrick, supra, 2 Cal.App.4th at p. 1295.) Accordingly, the jurors need not be specifically instructed on the absence of this requirement.
Third, defendant argues that the jury needed to be told that provocation can incite anger, rage or any violent, intense, high-wrought or enthusiastic emotion. Once again, however, the whole point of provocation is that it can negate premeditation and deliberation. Thus, provocation that incites anger, rage or any violent, intense, high-wrought or enthusiastic emotion can clearly be sufficient. The instructions need not specifically itemize the particular emotions that may be involved.
Fourth, defendant argues that the jury needed to be told that provocation may be physical or verbal. But it is simply common sense that the kind of provocation that can cause a person to act without premeditation and deliberation can be either physical or verbal. In the context of heat of passion voluntary manslaughter, the Supreme Court used to hold that mere words could never be sufficient provocation. (People v. Bruggy (1892) 93 Cal. 476, 482; People v. Butler (1857) 8 Cal. 435, 441-443.) In People v. Valentine (1946) 28 Cal.2d 121, however, it overruled these cases and held that provocation can be either physical or verbal. (Id. at pp. 141-144.) As it stated, "'Nothing is more surely calculated to arouse the blood of some men to a heat of passion than grievous words of reproach . . . .'" (Id. at p. 143.) Accordingly, even in the context of heat of passion voluntary manslaughter, the trial court is not required to instruct on this principle. (See CALCRIM No. 571.)
Fifth, defendant argues that the jury needed to be told that, once there is evidence of provocation, the prosecution has the burden of proving the absence of provocation beyond a reasonable doubt. The instructions as a whole, however, adequately conveyed this requirement. The trial court gave the standard instruction that the People must prove guilt beyond a reasonable doubt. (CALCRIM No. 220.) It also specifically instructed that "[t]he defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation" and that "[t]he People have the burden of proving beyond a reasonable doubt that the killing was first-degree murder rather than a lesser crime." (CALCRIM No. 521.) Finally, it instructed that provocation can reduce a murder from first degree to second degree. (CALCRIM No. 522.) In light of these instructions, taken collectively, it was inescapable that the People had to disprove provocation beyond a reasonable doubt.
Defendant claims that the asserted instructional error violated the federal constitutional rights to present a defense, to trial by jury, and to due process. However, "[h]aving found no error under state law, we also reject defendant's claim the instruction deprived h[im] of h[is] federal constitutional rights . . . ." (People v. Thompson (2016) 1 Cal.5th 1043, 1124.)
We therefore conclude that the trial court was not required to define provocation sua sponte.
2. Ineffective assistance of counsel.
We turn, then, to defendant's contention that his trial counsel rendered ineffective assistance of counsel by failing to request an instruction defining provocation.
"'"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.' [Citation.]"' [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 80.)
As mentioned, it is often said that the trial court is not required to instruct on the meaning of a term that is commonly understood, in the absence of a request. Actually however, this is just one aspect of a broader general principle: The trial court is not required to instruct on the meaning of a term that is commonly understood, even on request. (People v. Malone (1988) 47 Cal.3d 1, 55.) As we have already held, in the context of reducing a murder from first to second degree, provocation has its commonly understood meaning. Thus, even if defense counsel had asked the trial court to define provocation, it could properly have refused to do so.
For this reason, defendant cannot show that defense counsel's failure to request such an instruction was objectively unreasonable. Moreover, he cannot show a reasonable probability that, if defense counsel had requested such an instruction, the outcome would have been more favorable to him.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORT
RAMIREZ
P. J. We concur: MILLER
J. CUNNISON
Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------