People v. Romero CA4/3 ( 2024 )

Filed 2/21/24 P. v. Romero CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062175
v. (Super. Ct. No. 21NF2286)
JOSUE ALEJANDRO ROMERO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
A. Leversen, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Daniel J. Hilton and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After ingesting methamphetamine at a bar, defendant Josue Alejandro
Romero became angry that a man had molested his ex-girlfriend when she was a child,
and he grew concerned for her safety and the safety of their newborn daughter. Romero
walked to the man’s house with the express intent to kill him. After entering the house,
Romero stabbed the man multiple times in the neck, shoulder, and face. A jury convicted
Romero of attempted murder and found he had deliberated and premeditated the crime.
Romero asserts the trial court erred in failing to give three sua sponte jury
instructions on provocation and hallucination. We disagree. The instructions at issue are
pinpoint instructions, so the court was not required to give them absent a request.
Because Romero did not request those instructions, he failed to preserve his claims for
appeal.
Anticipating this response, Romero alternatively asserts his trial counsel
rendered ineffective assistance by failing to request the instructions. Again, we are not
persuaded. Given the record and his various admissions regarding intent and planning,
Romero cannot demonstrate the omission of the instructions prejudiced him. We
therefore affirm the judgment.
FACTS
Romero and A.M. started dating in about 2018. Around that time, A.M.
told Romero her mother’s long-term boyfriend, Luis, had sexually abused A.M. when she
was a child. A.M. mentioned the molestation to Romero only on that one occasion.
Romero and A.M. had two children together, including a daughter born in
early July 2021. A.M. and the children lived with A.M.’s mother and Luis at their home
in Placentia, while Romero lived either at his parents’ house or on the streets. Romero
and A.M.’s relationship was “on and off,” and according to Romero, they broke up a few
days before the incident in question, which occurred on July 22, 2021.
2
That afternoon, Romero was drinking vodka at a bar in Fullerton. He then
swallowed a rock of methamphetamine, which he had been using “frequently” since he
was a teenager.
While sitting in the bar under the influence of methamphetamine, Romero
recalled that Luis had molested A.M. when she was a little girl, and a feeling came over
him that his two-week-old daughter, and perhaps even A.M., were in danger. Romero
also recently had become concerned Luis was still forcing himself sexually on A.M.
Romero had not observed any contact or touching between Luis and A.M.; in his words,
it was just an “intuition.”
Still feeling the effects of the methamphetamine, Romero walked to the
house where A.M. lived with the children, her mother, and Luis. Romero later testified
that during that five-minute walk, he thought about “a lot of things,” including the need
to “hurt” and “discipline[ ]” Luis for molesting A.M., and his “intention to kill” Luis to
defend his family. Romero also thought about the fact he did not have a gun, but he had
a knife in his pocket and thought there might be a hammer in the backyard.
When Romero arrived at the house, he found Luis, A.M.’s mother, and
Romero’s newborn daughter in one of the bedrooms. A.M.’s mother was lying on the
bed, and Luis and the baby were on the floor. According to Romero, Luis was
“touching” the child.
Romero moved the baby onto the bed next to A.M.’s mother. He then
pulled the knife out of his pocket and stabbed Luis repeatedly in the neck; he also
punched and choked him. Romero testified that all the while, he was thinking about how
Luis needed to be disciplined and killed and that he needed to protect his daughter. He
also admitted he had “the intent to kill” Luis as he was stabbing him.
After the attack, Romero left the house. Luis, who had stab wounds and
lacerations on his face, neck, and left shoulder, was taken to the hospital where he
underwent surgery.
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Police arrested Romero in Fullerton early the next morning. After waiving
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his Miranda rights, Romero told officers when he first met A.M., she mentioned that
Luis touched her when she was a young child. He also told officers he had grown
2
suspicious of Luis and thought Luis had recently given A.M. a bouquet of flowers.
Romero described how on the day of the incident, as he was sitting at the bar, a feeling
came over him that Luis should pay for the fact he was a “piece of shit” and a “child
molester,” and after thinking it over for about two to four hours, he decided to kill Luis,
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either with his bare hands or with his knife. He recounted that he walked to the
residence, pulled out his knife, and “stabbed [Luis] as many times in the neck as [he]
could” and “fought . . . to take his life.”
While Romero was in jail, he had several recorded telephone conversations
with A.M. During one conversation, Romero told A.M. he did what he did because he is
“a soldier of [G]od” (meaning he had to “protect[ ] others from harm”) and he “felt like a
higher being [was] telling [him] to do” it. However, he also told A.M., “I’m not crazy[,]
you know I’m not crazy but I felt like I had to do that. . . . [¶] . . . [¶] Nobody told me to
do that, I did it myself.” During another telephone conversation, Romero asked A.M. to
bring him case law on attempted murder, explaining he wanted to find a “loophole.”
At trial, Romero’s defense counsel argued Romero was provoked to attack
Luis in three respects: (1) A.M. told Romero that Luis had molested her as a child;
(2) the flower delivery caused Romero to suspect Luis was trying to “make a move” on
1
See Miranda v. Arizona (1996) 384 U.S. 436.
2
At trial, A.M. testified that her insurance company had sent her the flowers
because she had been in a car accident while pregnant with her daughter.
3
At trial, Romero denied thinking about the assault for that long and claimed
he was “disoriented because of the drugs and alcohol” when the police interviewed him.
He testified he was at the bar for at most 20 minutes and then spent about five to seven
minutes walking to A.M.’s house.
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A.M.; and (3) Romero believed he saw Luis “touching” his newborn child immediately
before the stabbing. According to counsel, this all led Romero, who was high on
methamphetamine, to act rashly.
The jury found Romero guilty of attempted murder, first degree residential
burglary, and assault with a deadly weapon; it also found true that Romero committed the
attempted murder with deliberation and premeditation, personally inflicted great bodily
injury, and personally used a deadly weapon.
The trial court found Romero had been previously convicted of a serious
felony that was also a strike and sentenced him to 18 years to life in prison. Romero filed
a notice of appeal.
DISCUSSION
Romero’s appeal focuses exclusively on the trial court’s failure to give
three sua sponte jury instructions concerning his state of mind at the time of his crimes.
Before addressing his arguments, we provide some further background.
“First degree murder is an unlawful killing with malice aforethought,
premeditation, and deliberation”; “[s]econd degree murder is an unlawful killing with
malice, but without . . . premeditation or deliberation”; and voluntary manslaughter is an
unlawful intentional killing without malice, premeditation, or deliberation. (People v.
Hernandez (2010) 183 Cal.App.4th 1327, 1332.) Provocation can operate to reduce first
degree murder to second degree murder by negating premeditation and deliberation; it
can also operate to reduce second degree murder to voluntary manslaughter by negating
the existence of malice. (Ibid.)
The trial court instructed the jury with CALCRIM No. 603, which explains
that “[a]n 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 court also instructed the jury with
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CALCRIM No. 625, which explains that the jury may consider evidence of the
defendant’s voluntary intoxication only for the limited purpose of deciding whether the
defendant acted with an intent to kill or with deliberation and premeditation.
Romero argues the trial court should have also instructed the jury on how
the evidence of Luis’s molestation was relevant to provocation, that provocation
insufficient to reduce the offense to manslaughter might nonetheless be sufficient to
reduce it to second degree murder, and that hallucination may negate deliberation and
premeditation so as to reduce the offense to second degree murder. Recognizing his
counsel did not request any of these instructions at trial, Romero contends the court had a
sua sponte duty to give these instructions, and its failure to do so deprived him of a fair
trial. In the alternative, Romero argues his trial counsel was constitutionally ineffective
in failing to request those instructions. We are not persuaded.
1. The Failure to Instruct on the Molestation Evidence’s Relevance to
Provocation
As noted, the jury heard evidence that when A.M. and Romero first started
dating, A.M. told Romero that Luis had molested her as a child. Romero contends the
trial court erred by not instructing the jury about the molestation evidence’s relevance to
his provocation defense. He acknowledges the court did admonish the jury that the
evidence of molestation could only be used in considering Romero’s specific mental state
and whether he acted with deliberation and premeditation, but asserts the court should
have also instructed the jury that evidence of molestation was relevant to whether
Romero was provoked or acted in the heat of passion. According to Romero, without
further elaboration, the jury did not know the molestation may be a mitigating factor for
Romero, as opposed to evidence of a motive to murder Luis.
We find no error. To begin with, a trial court has no sua sponte duty to
give a pinpoint instruction concerning particular facts relevant to the crux of the
defendant’s case. (People v. Jennings (2010) 50 Cal.4th 616, 674-675.) That is precisely
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what Romero is advocating for here. Because he never asked the court to explain the
relevance of the molestation as to provocation, he forfeited the issue.
Nor can we say defense counsel was constitutionally ineffective in failing
to request such an instruction or that Romero was prejudiced by the instruction’s absence.
Although counsel was not asked why he did not request an instruction on the relevance of
the molestation evidence, counsel likely had tactical reasons for focusing instead on more
recent events (i.e., the giving of flowers and the apparent “touching” of Romero’s
daughter) to support Romero’s provocation defense. Romero had known about the
molestation for at least three years by the time of his crimes. The only time he and A.M.
had ever discussed the molestation was in 2018 when they started dating, which gave
Romero more than ample time to “cool off.” (See CALCRIM No. 603 [“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 time lapse, coupled with Romero’s admissions at trial that he formed an intent to kill
Luis while still at the bar and began deliberating murder weapons during his walk to the
house, convinces us that even if the trial court had instructed the jury on the relevance of
the molestation evidence, the result would have been same.
2. The Failure to Instruct that Provocation Can Reduce Deliberate
Premeditated Attempted Murder to Attempted Murder
As noted, the trial court instructed the jury that an attempted killing that
would otherwise be attempted murder is reduced to attempted voluntary manslaughter if
the defendant attempted to kill someone in the heat of passion. (CALCRIM No. 603.)
According to Romero, the court should have also given a modified version of CALCRIM
No. 5.22 to the jury: “[w]hen the evidence shows the existence of provocation that
played a part in inducing the unlawful attempted murder of a human being, but also
shows that such provocation was not such as to reduce the offense to attempted voluntary
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manslaughter, and you find that the offense was attempted murder, you may consider the
evidence of provocation for such bearing as it may have on the question of whether the
attempted murder was premeditated and deliberate.”
Again, we disagree. First, instructions on provocation are pinpoint
instructions, so the trial court had no sua sponte duty to give the modified instruction
absent a request. (People v. Hardy (2018) 5 Cal.5th 56, 99 [“Instructions on provocation
are pinpoint instructions that need not be given sua sponte but only on request”].)
Because Romero did not request the instruction, he forfeited the argument on appeal.
Second, Romero has not shown prejudice from the omission of the
instruction. As explained above, both the molestation and Romero’s discovery of the
molestation occurred years earlier. And although defense counsel attempted to use more
recent events to support Romero’s provocation defense, such as the flower delivery and
seeing Luis “touching” the baby, the jury found these events were insufficient to negate
premeditation and deliberation. Romero admitted he formed an intent to kill Luis while
at the bar and began deliberating his options for murder weapons during his walk over to
the house, before he purportedly saw Luis “touching” his newborn daughter. On this
record, we discern no prejudice.
3. The Failure to Instruct on Voluntary Hallucination
Finally, Romero contends the trial court erred by not giving an instruction
about voluntary hallucination or delusion. Although the court did instruct the jury it
could consider Romero’s voluntary intoxication for the limited purposes of deciding
whether he acted with an intent to kill or with deliberation and premeditation (CALCRIM
No. 625), Romero asserts the court should have also instructed the jury it could consider
evidence of hallucinations in deciding whether Romero acted with deliberation and
premeditation (CALCRIM No. 627). According to Romero, if properly instructed, the
jury might have concluded Romero was hallucinating when he thought Luis was a threat
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to A.M. or when he saw Luis “touching” Romero’s newborn daughter, and this
hallucination fueled his passion and subjectively negated premeditation and deliberation.
Again, we are not persuaded. First, as Romero acknowledges, CALCRIM
No. 627 is a pinpoint instruction to be given only on request when the evidence supports
the theory. (See People v. Ervin (2000) 22 Cal.4th 48, 91; People v. McCarrick (2016)
6 Cal.App.5th 227, 243.) Because Romero did not request this instruction, he failed to
preserve his claim for appeal.
Second, Romero was not prejudiced by the omission of the instruction
because nothing in the record suggests any delusional perception of reality resulted in his
failure to plan or consider his actions. (See People v. Stress (1988) 205 Cal.App.3d 1259,
1270 [“A finding of deliberation and premeditation is not negated by evidence a
defendant’s mental condition was abnormal or his perception of reality delusional unless
those conditions resulted in the failure to plan or weigh considerations for and against the
proposed course of action”].) To the contrary, Romero testified that he formed an intent
to kill Luis while at the bar and began considering his options for murder weapons during
his walk over to the house, before he purportedly saw (or imagined) that Luis was
“touching” his newborn daughter.
Further, the trial court instructed the jury it could consider whether
Romero’s voluntary intoxication affected his ability to form a specific intent or to
premeditate and deliberate; the jury rejected Romero’s argument that his
methamphetamine use affected his ability to deliberate and premeditate. We can
therefore conclude with confidence that the jury, even if instructed on hallucination,
would have found Romero premeditated and deliberated his actions. We find no
reasonable probability of a different outcome had the instruction been given.
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DISPOSITION
The judgment is affirmed.
GOETHALS, ACTING P. J.
WE CONCUR:
DELANEY, J.
GOODING, J.
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