Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1240681 Nancy E. Ashley, Judge.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, Acting P.J.
A jury convicted Juan Arturo Tostado of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and battery on a spouse or cohabitant (§ 273.5, subd. (a)), and found true an allegation that he inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The jury, however, found not true an allegation that Tostado committed the attempted murder with premeditation. In a bifurcated bench trial, the court found true allegations that Tostado had suffered a prior strike conviction within the meaning of section 667, subdivision (d) and served a prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced Tostado to state prison for a total determinate term of 22 years, comprised of nine years for attempted murder, doubled to 18 years pursuant to section 667, subdivision (d), three years for the great bodily injury enhancement, and one year for the prior prison term enhancement. The court imposed and stayed a six-year prison term on the battery count.
All further statutory references are to the Penal Code unless otherwise stated.
Tostado’s sole contention on appeal is that his attempted murder conviction must be reversed because the jury instruction given on heat of passion, CALCRIM No. 603, improperly suggests a response to provocation must be reasonable. We affirm.
FACTUAL BACKGROUND
On January 13, 2008, D-Anna Zobb went to Modesto to visit her 14-year-old daughter, Jovaughnna Vegas, who lived with her grandfather. Zobb was at the house that night with Vegas and five of Vegas’s friends, who were spending the night. Sometime that evening, Zobb left the house with Tostado, who she had lived with before he was incarcerated in 2006. The two had an “on and off” relationship; although they were separated at the time, they remained on good terms. Zobb and Tostado left in a car belonging to Tostado’s sister Ester.
Sometime later the two realized they were out of gas. They stopped at a convenience store, where Tostado got angry after the store clerk, Derek, locked the store’s door and would not let him in. Zobb and Tostado ended up at a gas station. Tostado was angry and walked away down the street, leaving Zobb with the car. The police came and told Zobb they would tow the car if it was not moved. Zobb called Ester, who came 15 to 20 minutes later with her boyfriend. Ester put gas in the car and she and her boyfriend took Zobb home.
Sometime later that night one of Vegas’s friends told her he saw someone in the backyard; the man was sitting and drinking. Vegas and two of her friends went around towards the front door and heard yelling and someone moaning. Vegas and another friend went out to the front yard, where they saw Tostado beating someone with both of his hands. Vegas could not see who was being beaten. When Tostado saw Vegas and her friend, he chased them into the house. After grabbing Vegas and telling her to come help him find her mom, Tostado left. Vegas and her friends called the police.
Eventually, Vegas ran outside with her friends and saw her mom injured on the ground. Police arrived around the same time. While still at the house, Vegas received two calls from her mother’s cell phone; the caller was Tostado. Later, while at the police station, Vegas received a third call from Tostado, which the police recorded. In that call, Tostado admitted hitting Zobb with his hands, and stated she did not do anything to make him so mad and he “lost it.”
As a result of the beating Zobb suffered numerous facial injuries resulting in the surgical reconstruction of her face. All of her teeth were taken out and she had facial numbness, poor balance, problems breathing, the inability to move her right arm above chest level, and constant numbness in her hands and feet.
Defense Case
David Wilkins, a friend of both Tostado and Zobb, testified that Zobb took great pleasure in manipulating people’s lives, and Zobb would break-up and get back together with Tostado a lot because she was “bored.” He never saw any violence between the two, although Zobb told him Tostado would get angry and yell and scream.
Tostado testified that he married Zobb in March 2006, when he was in jail but before he went to prison. When he was released from prison in July 2007 he thought he was married to Zobb and began spending the night at her house. Tostado suspected Zobb was cheating on him when, a few days later, he answered a call on Zobb’s cell phone and a man’s voice asked “[w]here’s my wife?” Zobb eventually admitted to Tostado she cheated on him, as she had another man’s name tattooed on her finger.
On January 12, 2008, Tostado thought he and Zobb were still together, although they were not living together. Zobb called and told him she would be in town that day. Around midnight, Tostado drove in his sister’s car to pick up Zobb. After going to a friend’s house in Turlock, where Tostado got drunk and Zobb did methamphetamine, the two returned to Modesto. Tostado stopped at a convenience store that was eight to ten blocks from Zobb’s home. While there, he got into an argument with the store clerk, Derek, about money Derek owed him. Derek told Tostado he was calling the police. Tostado and Zobb went to a gas station, but they had no money for gas. Tostado returned to the convenience store, but the outside doors were locked and Derek said the cops were coming. Tostado ran back to the car and told Zobb he was leaving because Derek had called the police and he was on parole.
Tostado ran to Zobb’s house, where he saw a man parked by the driveway in front of the house. He confronted the man and they got into a fist fight. After the man took off in his car, Tostado went into the backyard of Zobb’s house, where he drank brandy. Eventually Tostado went to the front of the house to wait for Zobb. When she got home, Tostado began to argue with her about the man parked in front of the house; he was angry because he thought Zobb might be cheating on him with the man. He suspected for a long time that she had been cheating on him and this was the first time he had come face-to-face with a man with whom she might be having an affair. Zobb denied having an affair with the man and told Tostado to calm down and go home. Tostado began hitting Zobb repetitively with his hands, and continued to beat her until Vegas came out of the house. He denied wanting to kill her. He knew, however, that he had done something wrong and ran away.
DISCUSSION
The trial court instructed the jury, without objection, with CALCRIM No. 603, concerning provocation and heat of passion reducing an attempted murder to attempted voluntary manslaughter. Tostado argues CALCRIM No. 603 is defective because it improperly suggests that a response to provocation must be reasonable. He acknowledges the instruction correctly states that provocation would have caused a “person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment.” He argues, however, that the instruction errs by stating, “It is not enough that the defendant simply was provoked, ” and by requiring the jury to “consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.” Citing People v. Najera (2006) 138 Cal.App.4th 212, 223, Tostado asserts the question is not how a reasonable person would have reacted to the provocation, but instead whether the acts that provoked the accused would cause a reasonable person to act rashly and without deliberation.
CALCRIM No. 603, as given, provides as follows: “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion. [¶] The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person; [¶] 2. The defendant intended to kill that person; [¶] 3. The defendant attempted the killing because he was provoked; [¶] 4. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment; AND [¶] 5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant’s reasoning or judgment.
Contrary to Tostado’s argument, CALCRIM No. 603 correctly tracks the law of provocation and heat of passion. The factor that distinguishes voluntary manslaughter in the heat of passion from murder is provocation. (People v. Lee (1999) 20 Cal.4th 47, 59.) Just as the provocation must “cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, ” so the cause of the provocation must be either the victim or the conduct in which the defendant reasonably believed the victim was engaged. (Ibid.) The law requires no specific type of provocation. (People v. Lasko (2000) 23 Cal.4th 101, 108.)
Heat of passion arises when passion so disturbs or obscures the defendant’s reason at the time of the killing or attempted killing as to cause the ordinarily reasonable person of average disposition to act rashly, without deliberation and reflection, and from passion rather than from judgment. (People v. Barton (1995) 12 Cal.4th 186, 201.) The passion the provocation causes may be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (People v. Breverman (1998) 19 Cal.4th 142, 163.) The legal requirement of heat of passion has both an objective and a subjective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) Just as, objectively, heat of passion must naturally arise in the mind of an ordinarily reasonable person under the given facts and circumstances, so, subjectively, the defendant must actually kill or attempt to kill on heat of passion. (Ibid.)
When read as a whole, CALCRIM No. 603 correctly incorporates both the objective and the subjective components of heat of passion. For provocation and heat of passion to reduce an attempted murder to an attempted voluntary manslaughter, the jury must find, inter alia, that “the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” (CALCRIM No. 603.) This does not involve any review of whether the acts themselves were reasonable, only that the provocation was such that it would have caused a reasonable person to act from passion rather than by using judgment. In this same vein, the jury was further instructed that in the course of evaluating whether the provocation was sufficient to cause an ordinary person to act based on passion rather than on rational judgment, it should “consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.” (CALCRIM No. 603.) CALCRIM No. 603 conveys that the jury is charged with evaluating the evidence of provocation to determine whether it would have prompted an ordinary person to act rashly and without due deliberation, that is, from passion rather than from judgment. At no point does the instruction direct the jury to decide whether the defendant’s actual acts in response to the provocation were those of a reasonable person. Tostado has not established any error in CALCRIM No. 603.
On a challenge for ambiguity, our duty is to view the instruction at issue in the context of the overall charge to the jury, rather than in artificial isolation, to determine whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. (People v. Mayfield (1997) 14 Cal.4th 668, 777.) Our review of the record satisfies us there is no reasonable likelihood that the jury misunderstood or misapplied CALCRIM No. 603.
Our holding moots the Attorney General’s forfeiture argument.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Kane, J., Franson, J.
“Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
“If enough time passed between the provocation and the attempted killing for a person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to 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 attempted murder.”