People v. Krueger CA4/2 ( 2021 )

Filed 12/13/21 P. v. Krueger CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075982
v. (Super.Ct.No. SWF1800641)
CURTIS LEE KRUEGER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
1
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D.
Butera, Deputy Attorneys General, for Plaintiff and Respondent.
After assaulting Henry Stange by striking him in the head with a hammer in early
2018, defendant Curtis Krueger, a Marine Corps lieutenant stationed at Marine Corps Air
Ground Combat Center Twenty-Nine Palms (Twenty-Nine Palms), attacked him again a
few months later, killing him in the victim’s garage. The defendant and his girlfriend,
who had been cheating on defendant with Stange, then took him out to the desert in
Joshua Tree National Park for burial in a shallow grave, where he was discovered by
hikers several days later. Defendant was charged and convicted by jury of assault with a
deadly weapon (Pen. Code1, § 245, subd. (a)(1) [hammer], count 1), and murder (§ 187,
subd. (a), count 2). The jury set the degree of the murder at second degree, whereupon
defendant was sentenced to three years on the assault count with a consecutive
indeterminate term of 15 years to life. He appeals.
On appeal, defendant raises a single issue, challenging a modification made to the
instruction pertaining to manslaughter, which defendant argues was an improper pinpoint
instruction. We affirm.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
BACKGROUND
Defendant Curtis Krueger enlisted in the Marines when he was 17, transitioning to
an officer after obtaining his four-year degree. He was proficient in martial arts, holding
a black belt, and was extremely fit.
Defendant met his girlfriend, Ashlie Stapp, through his cousin Angeline, who
worked with Ashlie at Jamba Juice, while he was stationed at Twentynine Palms.
Angeline’s family had asked Ashlie to feed and walk their dog while they went on a trip
to Mexico, and defendant was staying at the house on the weekends.
Angeline tried to discourage defendant from getting involved with Ashlie because
Angeline was aware that Ashlie was abusing prescription drugs and was promiscuous.
Ashlie’s drug use stemmed from a hip injury she sustained at age 23, for which she was
prescribed Norco and Percocet as painkillers. She quickly became dependent on the
drugs, so when her prescription would run out, she would buy pills from outside people
who were selling the medication illegally. By 2016 or 2017, her addiction was costing
approximately $600 per day, an amount for which her paycheck from Jamba Juice was
inadequate. When she could not cover her purchases, she would either steal pills from
her stepfather, get “fronted” pills for which she would have to pay later, or she would
exchange sexual favors with multiple partners in exchange for drugs.
To find pill providers, Ashlie consulted Craigslist, where she met victim Henry
Stange. Henry had been involved in a few serious motorcycle accidents which left him
with a slight limp and chronic pain, for which he originally had prescriptions for Norco
3
and Gabapentin, but, when those did not work, he was put on Oxycodone in pill form.
After Ashlie’s initial purchase of Oxycodone from Henry, she would go to his home in
Murrieta for purchases, where she exchanged sex for pills if she did not have cash, before
she met defendant.
After meeting defendant in 2017, Ashlie hid her drug use from him, and they
started dating a few months after the dog-sitting week. But she still met with Henry
approximately once a month. On some occasions, she would fall asleep and wake up
naked, feeling she had been violated while asleep. On one occasion, she awoke to
discover she had been tied to the master bed, something for which she had not consented.
She did not tell the defendant she had been assaulted, and she continued to see Henry
even after the assault.
During this period, she was seeing defendant, to whom she introduced her family
as her boyfriend and with whom she had discussed marriage, while also seeing Henry for
her drug fixes, knowing that Henry thought of her as his girlfriend, and had introduced
her to his ex-wife and children, as well as his neighbors and fellow ham radio enthusiasts
as such. She admitted she manipulated the situation in order to continue obtaining drugs
from Henry.
Ashlie and the defendant began seeing each other in the fall of 2017. In
December, defendant began making notes to himself. By January 2018, defendant would
stay on the base during the week, and on weekends they “camped” at an abandoned house
near Joshua Tree or Twentynine Palms.
4
However, defendant became concerned about Ashlie’s drinking and driving,
especially after two incidents in which she drank to excess. One incident occurred at a
family dinner when defendant noticed she lacked self-control while drinking, and the
second incident involved her drinking and disappearing, only to be found later, passed
out in her car in the desert. He asked her to share her location on her cell phone with
him, so in case she got lost again, he could find her, and she agreed.
At a gathering of Ashlie’s family in Fresno in January 2018, Ashlie threw her
phone on the ground and stomped off after reading a message; defendant looked at her
phone and saw an email from Henry. Defendant sent Henry an email telling him to leave
Ashlie alone or he would regret it. A few days later, defendant noticed Ashlie had turned
off her phone, preventing him from locating her.
This caused defendant to suspect Ashlie of infidelity with Henry. She had begun
lying about where she was going and would turn off her phone in order to prevent
defendant from knowing her whereabouts. On January 22, 2018, defendant went to work
leaving Ashlie at the abandoned residence they occupied. He thought she was still there,
but when he arrived at the property, she was gone, along with the blankets and pillows
the couple used. At some point, defendant contacted his cousin Angeline to discuss his
discovery of Ashlie’s drug use, and how he was going to track her Snapchat and her
phone. Defendant called his cousin Angeline at some point that day and informed her he
had discovered Ashlie’s potential infidelity by going through Ashlie’s phone.
5
When Ashlie finally turned on her phone, she was at a gas station with a
convenience store not far from Henry Stange’s residence. Defendant met her at this
location and confronted her, learning about her drug-and-sex-lifestyle. However, Ashlie
made herself out to be a victim by telling defendant that Henry had raped her, not
disclosing the true nature of the relationship.
Ashlie and defendant then drove to Henry’s residence where defendant entered the
house and struck Henry in the head with a hammer while Ashlie waited in defendant’s
truck. A short time later, defendant returned to the truck and told Ashlie he had done
something bad. The hammer was bent out of shape from the force of the blows. Back at
the abandoned residence, defendant threw the hammer into the desert. Text messages
between defendant and his immediate supervisor indicate defendant had informed the
captain that he was dealing with family over the phone, a cousin who was suicidal, to
explain his absence.
The next day, Ashlie was worried about Henry’s welfare and went back to his
residence, where Henry informed her defendant had hit him over the head with a
hammer. Henry appeared to have suffered a serious concussion and was bleeding from
his ear. Also around that day, defendant informed Angeline he was going stay with
Ashlie; at the end of the conversation, defendant admitted he had gone to Henry’s house
and hit him over the head with a hammer.
Although defendant decided to remain in the relationship with Ashlie, soon other
things made him suspicious. At this point, defendant began making notes to himself. On
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February 3, 2018, he made a note about January 22, 2018, and mentioned someone
named Joshie, and on February 14, 2018, he wrote that Ashlie had cheated on him with
Henry. He also made a note referring to December 6 or 7, 2017, when he had received
no reply from Ashlie, that it was “likely she was fucking Henry for drugs.”
After that, other things caused defendant suspect Ashlie of disloyalty. For one
thing, although she agreed to see a therapist, when she returned from appointments her
eyes were dilated differently than normal. He also took screenshots of her cell phone
where certain names came up. On February 2, 2018, defendant made a note to himself
about what a fool he was for thinking things would work out because she cheated on him
with Henry twice for drugs. On March 21, 2018, he made a note about continuing
surveillance on Ashlie’s phone, noting the phone’s movement within the residence. Then
he sent her a text message to ask why she turned off her phone nine minutes away from
Henry’s house.
Defendant also intercepted a text message from someone named John to Ashlie,
and responded to John that he was aware of the texts from John because he had hacked
her phone. He sent reply texts to other people who had texted Ashlie. Emails from
Ashlie’s email account were also forwarded to defendant’s email, without her knowledge.
Although defendant had deleted all her male contacts, Ashlie continued to connect with
male companions, lied about her whereabouts, and would turn off her phone and location
service to avoid being located.
7
This made defendant more suspicious, although in April of 2018, he became
engaged to Ashlie, while she continued to sleep with both defendant and Henry. On May
23, 2018, Ashlie received an email from Henry indicating he had obtained some
Oxycodone that day and inviting her to an “oxy party.” The next day, Ashlie made up an
excuse, sending a text message telling defendant she had to get some suitcases from her
mother’s house. She then drove to her mother’s house and left her telephone there,
outside, because no one was there. Then she drove to Henry’s house in Murrieta.
At noon that day, an event had been planned for military personnel in defendant’s
unit and family members. Ashlie was supposed to attend the event. When he received
the message from Ashlie about the suitcases, defendant became suspicious. But he
checked her phone location and saw that Ashlie was headed toward her mother’s
residence. He called Ashlie’s mother and learned she was out of town. He then went to
the Family Day event for a short time, but felt something was not right, and told his
major that he was concerned that Ashlie was suicidal, requesting permission to leave to
locate her.
In the meantime, because the drive from Twentynine Palms to the location of
Ashlie’s mother’s house would take too long, defendant contacted 911 to request a
welfare check on her because she might be suicidal. A patrol officer went by the location
but did not find anyone at home and did not see Ashlie’s car.
Defendant eventually arrived at the location, confirming that she was not there.
He dialed Ashlie’s number and eventually found her phone on the lawn. He texted the
8
major again indicating he had found Ashlie’s phone but Ashlie was not there.
Considering the possibility that she had left her phone there to mislead him as to her
location, defendant decided to go to Henry Stange’s residence.
At Henry’s house, Ashlie and Henry had ingested the Oxycodone to get high and
then had sex together. Afterward, Ashlie went into the bathroom while Henry went into
the garage where he played music and transmitted on his ham radio about Ashley being
there with him. The garage door was open, as was usual. When she finished what she
was doing in the bathroom, she heard sounds like wrestling around in the garage and she
heard Henry scream. The defendant entered the residence and told Ashlie he had done
something bad and they needed to leave.
Defendant and Ashlie left through the open garage where Ashlie could see Henry
on the floor of the garage. They drove their respective vehicles back to Ashlie’s mother’s
residence where Ashlie could leave her car. They decided to return to the crime scene to
get rid of the surveillance cameras Henry had around the house and to clean up any tracks
that could lead back to them. Ashlie cleaned the scene with bleach and grabbed Henry’s
Oxycodone prescription, while defendant grabbed the computer and cameras. Then they
backed defendant’s truck up to the garage and they put Henry’s body in the bed of the
truck. They also took all of Henry’s cell phones, went out to the desert and drove around
until they found a spot where they buried Henry in a shallow grave. After the burial, they
returned to the trailer in which they were living at that time, where defendant disposed of
the blankets, computer, and cell phones.
9
On June 1, 2018, two hikers saw vultures hanging out in an area of Joshua Tree
National Park. The vultures were near a shallow grave and bones were visible, so the
hikers made a report the next day. On June 2, 2019, Henry’s remains were found in the
shallow grave; there had been animal activity and the lower portion of the body was
sticking out of the grave, while the upper body remained covered.
Fingerprints obtained from the body and rehydrated confirmed the identity of the
body as that of Henry. His body was in a state of partial decomposition, with more than
one blunt force injuries on his head (at least two), resulting in multiple fractures, as well
as sharp force injuries on the left side of the neck. It was not likely that the head injuries
were caused by a fist, but stomping could have caused the fractures to the side of the
head. One of the sharp force injuries to the neck was approximately two inches in depth,
penetrating the esophagus, and approximately four centimeters (approximately one and
one-half inches) wide. On the back of the head were what was described as a chop-type
injury, caused by either a blunt or sharp force. It had all the features of a blunt-force
injury, but decomposition affected the appearance of the wound, giving it a sharp force
component as well. The blunt force injuries to the head could have been caused by a
weight on a barbell. A barbell weighing five pounds was located under the boat in the
garage.
Of the head injuries, the fractures on one side of the head appeared different from
the fractures on the other side. The skull fractures on the left side of the head could have
been caused by stomping. The fracture on the right side of the head is consistent with the
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head being on a flat surface when force was applied, or hitting a flat surface after force
was applied. The blood pattern on the underside of the boat under which the victim was
killed, indicated he had been struck a minimum of twice, the second time occurring when
his head was near the ground. The cause of death was attributed to homicidal violence.
After Henry’s identity had been established, and his residence was determined to
be the crime scene, the investigation led to the identification of Ashlie, and ultimately to
defendant through emails on Ashlie’s computer. Defendant was charged by way of
information with one count of assault with a deadly weapon (§ 245, subd. (a)(1), count
1), and one count of murder (§ 187, subd. (a), count 2).
Defendant was tried by a jury. After the People rested, defendant presented the
testimony of his ex-wife and Ashlie Stapp, and testified in his own defense. Regarding
count 1, defendant admitted striking Henry in the head with a hammer, but indicated that
Ashlie had accompanied him into the victim’s residence to collect some belongings she
had left there. She went in and got her stuff but as she came out, a person (Henry, the
victim) jumped from behind the couch and tried to stop her. When defendant struck him
with the hammer, he was overreacting.
Regarding the murder, defendant indicated he was concerned about Ashlie
because on May 23, 2018, she had walked into traffic after leaving the trailer in an angry
state, and was nearly struck by a truck. The next day he went to work and then left to
meet his unit at the football field for the family event that Ashlie was supposed to attend.
She had left the house after texting him about picking up suitcases. Defendant called
11
Ashlie’s mother and discovered she and her husband were in Las Vegas, but using the
phone location application, he could see that Ashlie was heading towards her mother’s
house. He went on to the family event expecting Ashlie to show up, but felt something
was not right, so he discussed his concern with his major. Ashlie did not respond to his
texts so defendant drove to her mother’s residence after calling 911, because it would
take him two hours to get to the location.
Ashlie was not at her mother’s house, but defendant eventually found her cell
phone there. He decided to check the house where she had said she had been raped, and
saw her car parked in the victim’s driveway. He had decided that if she was cheating on
him, he would break up with her.
Defendant walked up the driveway where the garage door was open, the victim
was inside. The victim gestured to defendant to enter the garage and told defendant
Ashlie was not there, despite the presence of her car in the driveway. Then the victim
approached defendant with a knife and tried to stab the defendant. Defendant jumped
back and then slapped the victim’s hand down, grabbing Henry’s wrist and taking the
knife from the victim. Defendant struck the victim in the neck because he thought Henry
was going to kill him.
After stabbing Henry’s neck, the defendant pushed the victim away and they
ended up at the back wall of the garage near the rear of the boat. Defendant tripped and
almost fell on Henry, at which point defendant realized, as the victim was falling, that he
was wearing only underwear. Defendant fell on top of him as the victim grabbed a metal
12
disk and swung at defendant. Defendant also managed to disarm Henry of this
implement, using it to smash the victim’s head. Defendant then attempted to escape but
Henry grabbed his ankle, so defendant stomped him on the head with his foot to get free.
Defendant then ran into the house expecting to find Ashlie tied up but instead
found her in the bathroom. Defendant told her they need to go because he did not know
if the victim was going to come after him. Later, after discussing whether to call an
ambulance for Henry, Ashlie convinced defendant not to contact police, so they decided
to bury the victim in the desert.
The jury convicted defendant of both counts but set the degree of the murder at
second degree. He was sentenced to serve the middle term of three years for the assault
with a deadly weapon (count 1), with a consecutive indeterminate term of 15 years to life
for the second degree murder. On October 22, 2020, defendant timely appealed.
DISCUSSION
a. Background
The sole issue presented for review involves asserted instructional error in making
a modification to the manslaughter-heat of passion instruction, CALCRIM No. 570. The
first part of the instruction addresses the defense of imperfect self-defense. The
modification was requested by the People, without objection by defendant, based on the
13
decision in People v. Moye (2009) 47 Cal.4th 537 (Moye).2 As modified, the instruction
read (modification in bold):
“A killing that otherwise be murder is reduced to a voluntary manslaughter if the
defendant killed someone because of a sudden quarrel or in the heat of passion.
“The defendant killed someone because of a sudden quarrel or heat of passion if:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly and under the
influence of intense emotion that obscured his reasoning and judgment; and
3. 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.
“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 a murder to a voluntary manslaughter, the
defendant must have acted under the direct and immediate influence of provocation as I
have defined it. Additionally, the provocation which incited the defendant to kill in
the heat of passion must have been caused by the decedent or have been conduct
2 The People argue defendant has forfeited the challenge by failing to object to
the modified language of the instruction. However, we may, without objection or
“exception having been taken in the trial court, review any question of law involved in
any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or
after judgment, which thing was said or done after objection made in and considered by
the lower court, and which affected the substantial rights of the defendant.” (§ 1259;
People v. Carey (2007) 41 Cal.4th 109, 132.)
14
which the defendant reasonably believed was caused by the decedent. While no
specific type of provocation is required, slight or remote provocation is not sufficient.
Sufficient provocation may occur over a short or a long period of time.
“It is not enough that the defendant was simply 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, in the same
situation and knowing the same facts, would have reacted from passion rather than from
judgment.
“If enough time passed between the provocation and the killing for an ordinary
person to of average disposition to ‘cool off’, or regain his or her clear reasoning and
judgment, then the killing is not reduced to voluntary manslaughter on that basis.
“The People have the burden of proving beyond a reasonable doubt that the
defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the
People have not met this burden, then you must find the defendant not guilty of murder.”
(CALCRIM No. 570.)
Defendant argues that the additional highlighted language inserted in CALCRIM
No. 570 misinformed the jury that the decedent had to have been the cause of the
provocation as opposed to just engaged in conduct resulting in provocation. We disagree.
Assertions of instructional error are reviewed de novo: “‘Whether or not to give
any particular instruction in any particular case entails the resolution of a mixed question
15
of law and fact that, we believe, is however predominantly legal. As such, it should be
examined without deference.’” (People v. Shaw (2002) 97 Cal.App.4th 833, 838, quoting
People v. Waidla (2000) 22 Cal. 4th 690, 733.)
b. Legal Principles and Analysis
“A trial court must instruct on lesser included offenses when there is substantial
evidence that the defendant committed the lesser offense instead of the greater.” (People
v. Dominguez (2021) 66 Cal.App.5th 163, 175, citing People v. Vasquez (2018) 30
Cal.App.5th 786, 792.) “Manslaughter is a lesser included offense of murder.” (§ 192;
People v. Beltran (2013) 56 Cal.4th 935, 942, citing People v. Thomas (2012) 53 Cal.4th
771, 813.)
In a homicide case, the trial court has a sua sponte duty to instruct on voluntary
manslaughter as a lesser included offense of murder whenever there is evidence from
which a reasonable jury could conclude that a manslaughter, but not a murder, was
committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) This duty includes
instruction on voluntary manslaughter due to a sudden quarrel or heat of passion when
there is substantial evidence that shows such a theory is relevant. (Id. at pp. 154-155.)
The theory may apply even in cases when the defendant intended to kill. (Id. at p. 163.)
Sufficient provocation and sudden quarrel present mitigating circumstances that
may afford a defendant “partial exculpation” for murder that results in a conviction for
manslaughter. Sufficient provocation either negates the element of malice required for
murder or causes it to be disregarded as a matter of law. (People v. Beltran, supra, 56
16
Cal.4th at p. 942; People v. Bryant (2013) 56 Cal.4th 959, 968; see also, People v. Moye
(2009) 47 Cal.4th 537, 549.)
“In determining the adequacy of jury instructions, we consider the entire charge of
the court and assume jurors are intelligent people capable of understanding and
correlating all the instructions given.” (People v. King (2010) 183 Cal.App.4th 1281,
1316.) “An instruction is considered flawed only if there is “‘a reasonable likelihood that
the jury misconstrued or misapplied the words” of the instruction. [Citation.]’
[Citation.]” (Ibid.)
“[A] defendant is not entitled to have instructions couched in any particular
language so long as the instructions given fully and fairly state the applicable law.”
(People v. Ranson (1953) 119 Cal.App.2d 380, 388.) Moreover, a prosecutor has the
right to request “pinpoint instructions” to clarify or amplify the standard instructions or
limiting instructions. (People v. Moore (1954) 43 Cal.2d 517, 526; People v. Hunter
(2011) 202 Cal.App.4th 261, 275, fn.3.)
“A heat of passion theory of manslaughter has both an objective and a subjective
component.” (People v. Moye, supra, 47 Cal.4th at p. 549, citing People v. Manriquez
(2005) 37 Cal.4th 547, 584; People v. Steele (2002) 27 Cal.4th 1230, 1252; People v.
Wickersham (1982) 32 Cal.3d 307, 326–327.) The factor that distinguishes the heat of
passion form of manslaughter from murder is the presence of provocation. (Moye, supra,47 Cal.4th at p. 549.)
17
As the Supreme Court instructed in Moye, supra, at pages 549-550, quoting from
People v. Lee (1999) 20 Cal.4th 47, 59: “‘The provocation which incites the defendant to
homicidal conduct in the heat of passion must be caused by the victim [citation], or be
conduct reasonably believed by the defendant to have been engaged in by the victim.
[Citations.] The provocative conduct by the victim may be physical or verbal, but the
conduct must be sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and reflection. [Citations.]’”
This concept was later cited in People v. Trinh (2014) 59 Cal.4th 216, 232, and
People v. Nelson (2016) 1 Cal.5th 513, 540, among others. It therefore is a current and
correct statement of California law.
At oral argument, defendant referred to the cases of People v. Bridgehouse (1956)
47 Cal.2d 406 and People v. Wright (2015) 242 Cal.App.4th 1461, cited in his briefs on
appeal, and urged us to hold that the pinpoint instruction was erroneous because it did not
accurately explain that the provocation needed for heat of passion may be satisfied by
both conduct by the victim as well as conduct the defendant reasonably believed was
“engaged in” by the decedent. However, neither of these decisions involved the
instruction challenged on appeal.
In Bridgehouse, the California Supreme Court found insufficient evidence to
support the defendant’s conviction of second degree murder where “there was no malice
shown, either express or implied; there was no showing of any premeditation, either
express or implied; there was no evidence of an ‘abandoned and malignant heart.’ There
18
was ample, uncontradicted, evidence that defendant was a man of excellent character;
that he was mentally and emotionally exhausted and was white and shaking. It appears to
us, as a matter of law, that under the circumstances here presented there was adequate
provocation to provoke in the reasonable man such a heat of passion as would render an
ordinary man of average disposition likely to act rashly or without due deliberation and
reflection [citation].” (People v. Bridgehouse, supra, 47 Cal.2d at p. 414.)
As for the provocation element, Bridgehouse observed that defendant was
provoked not only by his wife’s conduct but also by the fact he did not expect to see the
victim at the defendant’s mother-in-law’s house, which visibly upset him. However, that
passage was not the holding of the case. Instead, it noted that the provocation needed to
reduce a homicide to voluntary manslaughter may result from “the sum total of the
circumstances which proved, as a matter of law, the existence of adequate provocation
and heat of passion.” (Bridgehouse, supra, 47 Cal.2d at p. 414; People v. Wright, supra,
242 Cal.App.4th at p.1489.)
The concurrence in Wright had expressed doubt about the continued vitality of the
Bridgehouse holding where it was the wife’s conduct that was provocatory, while the
victim was just sitting in the den, “minding his own business.” (People v. Wright, supra,
242 Cal.App.4th at pp. 1489, 1504.) However, the majority responded that the Supreme
Court in Bridgehouse considered the conduct of both his wife and her lover reprehensible
and provocatory, giving rise to defendant’s heat of passion. (People v. Wright, supra, at
p. 1489.)
19
Neither Bridgehouse nor Wright analyzed the correctness of the language in the
instruction challenged here, nor did either case hold that a jury must be instructed in
specific language how the jury evaluates the provocation necessary to reduce the degree
of the offense. Further, it is speculation to say the jury would have reached a different
conclusion where the principles stated in the instruction were substantially correct,
modeled on the language of Moye, supra, 47 Cal.4th at pp. 549-550. Defendant points to
differences between the language “conduct reasonably believed by the defendant to have
been engaged in,” found in Moye, supra, with the language used in this case. In Moye,
the court stated, “The provocation which incites the defendant to homicidal conduct in
the heat of passion must be caused by the victim [citation], or be conduct reasonably
believed by the defendant to have been engaged in by the victim.” (Ibid., italics added.)
In both versions, the emphasis is on the need for the jury to find that conduct by the
victim or engaged in by the victim was the provocation for the killing.
Here, the language of the instruction referred to “conduct which the defendant
reasonably believed was caused by the decedent.” Defendant did not object, and the
essence of the instruction informed the jury how to evaluate the presence or absence of
provocation sufficient to warrant conviction of a lesser offense. The People requested the
pinpoint instruction under circumstances that warranted the modification. And even if
the instruction had been modified in error, there could be no prejudice because the
defendant primarily relied on self-defense, imperfect self-defense, or defense of others.
20
“Because the instructions given were correct statements of the relevant legal
principles, any purported error was necessarily harmless.” (People v. Thomas (2007) 150
Cal.App.4th 461, 467.)
There was no reversible instructional error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
FIELDS
J.
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