Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. VA092307-1, Michael L. Schur, Judge
Alan Stern for, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Juliet H. Swoboda, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Gabriel Ortega Sanchez appeals from judgment following conviction by jury for willful, deliberate and premeditated attempted murder with personal infliction of great bodily injury under circumstances involving domestic violence (Pen. Code, §§ 664, 187, subd. (a), 1192.7, subd. (c) & 12022.7, subd. (e)); corporal injury to a spouse with personal infliction of great bodily injury under circumstances involving domestic violence (§§ 273.5, subd. (a); 12022.7, subd. (e)); and criminal threats (§ 422). Appellant admitted he had suffered a prior serious felony conviction and a prior prison term. (§§ 1170.12, subds. (a) – (d); 667, subds. (b) – (i); 667.5, subd. (b).) Appellant was sentenced to a prison term of life with the possibility of parole and an additional determinate term of 10 years 4 months.
Appellant contends that he received ineffective assistance of counsel at trial. He claims his attorney should have requested a pinpoint instruction that would have advised the jury that it could find that the attempted murder was committed without pre-meditation and deliberation if they believed appellant was provoked by the victim but that the provocation was not adequate to reduce attempted murder to attempted voluntary manslaughter. We affirm.
FACTS
Appellant and his wife lived together for nine and a half years. Appellant drank about six beers daily and spent hours in the bathroom almost ever day. His wife did not know what drug he used, but would find aluminum foil in the bathroom. She believed he used crystal methamphetamine. When he was high and drunk, "he was mad all the time," and he would act more irrationally.
On a family road trip in 2001, appellant tried to turn the car over in order to kill his wife and children. His wife believed he was under the influence of crystal methamphetamine. She left him, but later returned.
In 2003, appellant hit his wife 8 or 10 times in the face because there was no room for his beer in the refrigerator. She called the police, who photographed her injuries.
On March 19, 2005, appellant's wife left him again, because of his drug and alcohol use. She left a note. Appellant called his friend, Salvadore Rincon. He told Rincon that his wife was leaving him and taking his children. Appellant was crying and said, "[I]f she leave[s] me, I will kill her."
On March 20, appellant went to his wife's place of employment, a shoe store in an indoor swap meet. Appellant was calm. He exchanged keys with his wife and left.
On the morning of March 21, appellant returned to the shoe store. He arrived before the store was open; no other people were present. He was calm. When his wife went into a back storeroom to get something, he followed her. He asked her to come back home and she refused. He became angry and said that if she was not going to be his, then she was not going to be anyone else's. He started to choke her. He seemed drunk and high. His wife could not breathe and she lost consciousness. She awoke two or three days later in a hospital.
At 10:45 on the morning of March 21, sheriff's deputies responded to a report of an assault with a deadly weapon at the shoe store. They found appellant's wife sitting on the floor against a wall, bleeding profusely from a head wound. The deputies did not find a weapon and the cause of the head injury was never determined.
On the afternoon of March 21, appellant called Rincon at work and asked him to find out if he had killed his wife. Rincon said, "You didn't do it," and appellant responded, "Yes, I did it." Rincon said he did not believe it, and appellant told Rincon to check whether he had killed her. Rincon told appellant he would not help him. Appellant responded that if Rincon did not find out, appellant would "come and get [him] at the night." Rincon was afraid. After work, Rincon went to the sheriff's department and reported the situation. Rincon testified that appellant had a problem with alcohol or drugs, and he had seen him high or drunk, but he had not previously seen him act "crazy or do stuff that he doesn't mean."
On March 23, Detective Veronica Trejo interviewed appellant's wife at the hospital. Appellant's wife told Trejo that on March 21 appellant came to the store and asked her to come home. He promised to stop using methamphetamine and to be more respectful. She told him that she wanted to start a new life without him and that she was going to file for divorce. Appellant became angry and started to choke her. At trial, appellant's wife did not remember saying that she wanted a divorce, but she testified that she did tell detective Trejo the truth. Detective Trejo also interviewed Rincon, who told her about appellant's March 21 call. Rincon did not tell Trejo that appellant threatened to kill his wife on March 19.
In final arguments, defense counsel conceded that appellant committed corporal injury to a spouse, but argued that appellant did not intend to kill his wife, and that even if he did, he was acting rashly and should be convicted of attempted voluntary manslaughter, not attempted murder. Defense counsel argued that appellant's demeanor changed when his wife said she wanted a new life, and that he vented his anger by choking her. "[S]he said no. And he kind of lost it and started choking her." Defense counsel pointed out that there was no murder weapon and no evidence of a plan to dispose of a body. She argued that appellant had problems with alcohol and methamphetamine which caused him to act irrationally. She urged the jury to consider evidence of voluntary intoxication on the question of intent to kill and on the question of premeditation and deliberation. She argued that "[h]e became angry, and it was in the heat of passion type of crime. It wasn't a cold, calculated, I'm going to . . . plan this and wait until she's alone in the store and go and kill her. This was something that happened when she told him, no. I'm not coming back to you. And he realized that he was losing his family." The jury found the defendant guilty of all charges, including attempted murder, and found that the attempted murder was committed with premeditation and deliberation.
DISCUSSION
Appellant contends that he received ineffective assistance of counsel because his attorney did not request an instruction pinpointing the theory that he was provoked by his wife's refusal to return to him, and that although that provocation may not have been adequate to reduce the crime from attempted murder to voluntary manslaughter, it did negate premeditation or deliberation. We reject the contention because appellant has not demonstrated that counsel's performance was deficient or prejudicial. The pinpoint instruction would have been duplicative. The decision not to request it was attributable to reasonable trial tactics, and it is not reasonably likely that the outcome would have been different if the instruction had been requested and given.
A defendant claiming ineffective assistance of counsel must establish that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that the outcome would have been different absent counsel's ineffective representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) The defendant must demonstrate that "the omission or omissions were not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make." (People v. Williams (1988) 44 Cal.3d 883, 936.) "A defendant must prove prejudice that is a '"demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
Attempted murder requires proof of intent to kill and proof of express malice. (People v. Patterson (1989) 209 Cal.App.3d 610.) Without malice, the crime is attempted voluntary manslaughter. There is no malice if the defendant acts with intent to kill that arises upon a sudden quarrel or in a heat of passion induced by adequate provocation. (Pen. Code, § 192, subd. (a); People v. Van Ronk (1985) 171 Cal.App.3d 818, 823, 824-825.) Whether the provocation is adequate to negate malice is judged objectively. (People v. Steele (2002) 27 Cal.4th 1230, 1254.) If the provocation is not objectively adequate to negate malice, the jury may nevertheless consider subjective provocation to decide whether the defendant actually had a particular mental state, such as premeditation and deliberation. (Steele, at p. 1255.)
Because of the two-day cooling off period in this case, any provocation was not objectively adequate to negate malice. (People v. Wickersham (1982) 32 Cal.3d 307, 327 [if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, a killing is not voluntary manslaughter] overruled on other grounds People v. Barton (1995) 12 Cal.4th 186, 201.) The jury could nevertheless consider subjective provocation to decide whether appellant committed attempted murder with premeditation and deliberation.
Counsel's decision not to request a pinpoint instruction on subjective provocation was not deficient. "'[I]n appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case . . . [b]ut a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]." (People v. Bolden (2002) 29 Cal.4th 515, 558.) A pinpoint instruction on subjective provocation is required to be given only if it is requested and if there is evidence to support the theory. (People v. Rogers (2006) 39 Cal.4th 826, 878-879.)
The pinpoint instruction would have duplicated the instructions that were given. The trial court instructed the jury that "[a] decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold calculated decision to kill can be reached quickly. . . ." This instruction adequately covered the defense theory that appellant acted impulsively when his judgment was obscured in response to learning that his wife wanted a divorce. The trial court permitted defense counsel to argue that appellant acted irrationally, based on anger, when he learned that he was losing his family, and that as a result the jury should find that his actions were not cold, calculated and deliberate.
The omission of a pinpoint instruction on subjective provocation is also attributable to a reasonable tactical decision. There was little evidence that appellant was actually provoked by anything his wife said on the day that he choked her. Although he looked "pretty angry" and "pretty mean" when he was choking his wife, he had known for two days that she had left him. He had a calm interaction with her the day before he choked her. He was calm when he arrived at the shoe store on the day that he choked her. To emphasize provocation would have been to draw attention to this evidence, all of which could support an inference that appellant planned the attack for two days. Also, the jury may have perceived a subjective provocation argument as blaming the victim, given the lack of objectively adequate provocation for the crime. The evidence of involuntary intoxication was stronger and carried neither of these risks. Under these circumstances, a reasonable and experienced attorney would have emphasized voluntary intoxication, rather than subjective provocation, to try to negate premeditation and deliberation. Counsel did so when she requested and received an instruction advising the jury, "You may consider evidence, if any, of the defendant's voluntary intoxication . . . in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation."
The court also instructed the jury on provocation in the context of reducing attempted murder to voluntary manslaughter. The court instructed that attempted murder should be reduced to voluntary manslaughter if they found that the defendant intended to kill the victim, but did so rashly under the influence of intense emotion that obscured his reasoning or judgment because he was provoked and the provocation would have caused a person of average disposition to act from passion rather than judgment.
It is not reasonably probable that the outcome would have been different if counsel had requested a pinpoint subjective provocation instruction. For the reasons stated above, it is not likely that the court would have given it. Even if the instruction had been given, it is not reasonably probable that the jury would have decided differently. The jury necessarily found that the decision to kill was not "made rashly" or "impulsively" and was made with "careful consideration of the choice and its consequences." It rejected counsel's argument that appellant acted without thinking in response to learning that he was losing his family. Evidence at trial supported an inference that appellant made the decision to kill his wife two days before he choked her when he told his friend that he would kill her, that he calmly cased her work premises one day before he choked her, that he followed her into a storeroom in order to kill her, and that he left her unconscious and bleeding and called his friend to verify that she was dead. Our confidence in the outcome of the trial is not undermined by the absence of a request for a pinpoint subjective provocation instruction.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.