People v. Lopez CA5 ( 2024 )

Filed 10/21/24 P. v. Lopez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085981
Plaintiff and Respondent,
(Super. Ct. No. CR21-000749)
v.
ARTURO VEGA LOPEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Carrie M.
Stephens, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Arturo Vega Lopez shot Brandon F. in the chest, but Brandon survived
with minor injuries. A jury convicted defendant of attempted, premeditated, and
deliberate murder and other charges. Defendant argues (1) the jury’s conviction is not
supported by sufficient evidence that he had the intent to kill nor that he deliberated and
premeditated prior to shooting Brandon and (2) the trial court erred in defining
premeditation in the jury instructions and in failing to instruct on the lesser included
offense of voluntary manslaughter. We affirm the judgment.
PROCEDURAL BACKGROUND
The District Attorney of Stanislaus County filed an amended information on
July 5, 2022, charging defendant with first degree attempted murder (Pen. Code,1 §§ 664,
187, subd. (a), 189, subd. (a); count I), assault with a firearm (§ 245, subd. (a)(2);
count II), possession of a firearm by a felon (§ 29800, subd. (a)(1); count III), and
possession of ammunition by a felon (§ 30305, subd. (a)(1); count IV). The amended
information also alleged that defendant personally discharged a firearm causing great
bodily injury (§ 12022.53, subd. (d)) as to count I, personally inflicted great bodily injury
(§ 12022.7, subd. (a)) as to count II, had a prior serious felony conviction (§ 667,
subd. (a)) as to counts I and II, and had one prior “strike” conviction within the meaning
of the “Three Strikes” law (currently codified at §§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)) as to counts I–IV. Defendant pleaded not guilty and denied the
allegations. Defendant waived his right to counsel.
After a six-day trial, a jury convicted defendant of all counts and found true the
firearm and great bodily injury enhancements on August 16, 2022. After defendant
waived his right to a jury trial regarding the prior strike conviction allegations, the trial
court held a bifurcated court trial and found true the allegations.
1 Undesignated statutory references are to the Penal Code.
2.
The trial court denied defendant’s motions for new trial and to dismiss his prior
strike2 conviction and enhancements (except for the serious felony conviction under
§ 667, subd. (a)) and sentenced defendant to a total term of 39 years to life as follows:
life with a minimum parole eligibility of 14 years (§§ 187, subd. (a), 664, 667, subd. (e)),
plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)) as to count I;
and stayed (§ 654) terms of nine years, four years, and four years as to counts II, III, and
IV, respectively. The court also ordered defendant to pay victim restitution (§ 1202.4,
subd. (f)), a $300 restitution fine (§ 1202.4, subd. (b)), a suspended $300 parole
revocation restitution fine (§ 1202.45), $120 in criminal conviction assessments (Gov.
Code, § 70373), and $160 in court operations assessments (§ 1465.8).
Defendant filed a timely notice of appeal on March 20, 2023.
FACTS
Defendant’s family owned a tow business, and Brandon worked for defendant as a
mechanic for a little more than a year. Defendant usually paid cash for Brandon’s work,
but defendant did not always pay Brandon immediately.
Approximately three weeks before the shooting, defendant and Brandon fought.
Defendant called Brandon a “punk,” and Brandon responded with a challenge to get
down on his knees to “box” with defendant, who was in a wheelchair. Defendant agreed
and threw something at Brandon as he dropped to his knees. Brandon punched defendant
but left when neighbors yelled at him. After walking a few blocks, defendant drove up to
Brandon, apologized, and offered to drive Brandon home. Since Brandon had always
gotten along with defendant, Brandon thanked defendant and got into the car. But then
defendant started “talking shit,” and Brandon asked defendant, “Is this why you gave me
the ride?” Defendant continued “talking shit” to Brandon and started speeding through
2 See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3.
town at 50 miles per hour. Defendant told Brandon that he wanted Brandon to feel as
scared as defendant had felt during their fight.
Brandon asked defendant to let Brandon out of the car when he noticed that
defendant was driving toward defendant’s tow business rather than taking Brandon home.
Brandon was concerned because he was by himself, and defendant’s family was at the
tow business. Brandon asked defendant several times to let Brandon out of the car
because he was worried. Defendant started running stop signs, and when he slowed
down to turn a corner, Brandon jumped from the moving car. When Brandon hit the
ground, he landed on a drink bottle in his pocket and broke three ribs. Brandon paid an
individual to drive him home where Dominique M., his fiancé, bandaged his ribs.
Brandon was in pain and had trouble breathing.
On February 1, 2021, approximately three weeks after the fight, defendant
contacted Dominique to talk to Brandon because Brandon did not often answer his phone.
Brandon spoke with defendant and agreed to meet later that day at defendant’s tow
business to receive money that defendant owed Brandon. Dominique agreed to drive
Brandon to the meeting. Brandon changed the meeting location because he was not on
good terms with defendant after the fight and the meeting felt “off.” Dominique
suggested changing the location to the corner a few blocks away because she also had a
bad feeling due to defendant’s earlier fight with Brandon.
Defendant called and texted a few times after the first telephone call to confirm
that Brandon still intended to meet. Brandon and Dominique drove to the corner near a
bottling plant at approximately 5:00 p.m., parked, and waited for defendant to arrive.
Defendant arrived and parked behind Brandon and Dominique on the other side of the
road, approximately 30 feet away. Defendant was driving a newer Honda and called
Brandon to indicate defendant had arrived.
4.
Brandon cautiously walked up to defendant’s passenger car door (because he was
suspicious of defendant’s intentions), rested his arms on the windowsill, and leaned into
the open window to greet defendant. Brandon estimated that his body from the shoulders
up was inside the window at that time. Defendant was alone, had money in his hands,
and asked Brandon how he had been doing. Within 10 seconds, Brandon heard a bang
that shattered his eardrum and knocked him back out of the window. Dominique heard
the bang as well, recognized it as a gunshot, and then heard Brandon screaming as he
backed away from the car holding his chest. Brandon felt a kick but did not know
immediately what happened until he looked down and saw a smoke ring coming off his
chest. Brandon put his finger into a hole in his shirt, discovered he was bleeding from the
right side of his chest, and, based upon knowledge of firearms and the bang, concluded
that he had been hit by a .40-caliber bullet.
Brandon yelled, “Fuck, man, this mother fucker shot me,” and asked Dominique to
take him to the hospital. Brandon tried to see if defendant intended to shoot him again
but observed that defendant appeared disoriented from the gunshot. Dominique rammed
her car into defendant’s car to prevent him from shooting again. Defendant drove off
toward his family’s tow business, and Dominique followed him for half a block before
driving back to Brandon. After Dominique came back, Brandon got into the car and used
his phone to find the nearest hospital. Dominique called 911 and told the operator her
boyfriend had been shot and she was taking him to the hospital. She had to use
Brandon’s phone because Brandon had taken her phone to meet with defendant and did
not have it when he returned to the car. Dominique identified a photograph of the phone
later found in defendant’s tow yard as her own.
They arrived at the hospital approximately 10 minutes later, and medical personnel
ascertained that the bullet had entered and exited Brandon’s chest. Brandon believed he
would have taken a bullet to the head if he had not been nodding when defendant shot at
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him. Since being injured, Brandon has experienced swelling on the left side of his body,
including his legs, and has difficulty lifting his right arm, or any weight over 20 pounds,
without stretching.
After defendant left the scene of the shooting, he called 911 and reported that
individuals had rammed his car with their truck (which he later described as an SUV) and
then drove off. Defendant told the dispatcher that he did not know the individuals who
had hit him, but later admitted the vehicle appeared to be that of someone he knew, and
that he had the license plate which had remained on his car after being hit. He told the
dispatcher that three Hispanic men hit his car, but he did not know them and suggested
that they may have intended to rob him. When asked where he was calling from,
defendant responded that he was trying to fix his car, had “walked a little,” and provided
an address near his tow business.
An officer responded to defendant’s 911 call and met with defendant at
approximately 5:10 p.m. at the tow business. Defendant told the officer that he had left
his business and was going to the store when an individual tried to flag him down. The
individual tried to assault him, and another individual in the van rammed his vehicle and
drove off. Defendant told the officer that two individuals were involved, described the
individual that tried to assault him, but never claimed that he knew either of the
individuals.
At some point, the officer learned that Brandon had been shot and defendant was a
suspect. The officer located the vehicle defendant had been driving and determined that
it was registered to a rental company and equipped with handicap controls. When
searching the vehicle, officers located a small gun lockbox under the front seat. They
also found a bullet hole and brass located three or four inches below the top of the door
panel. The brass was a piece of casing from a fired bullet. When they removed the
interior door panel, a bullet fell out. The casing was located in the back seat. This is
6.
consistent with a right-handed individual firing a gun toward the passenger side of the
vehicle. The officer testified that the bullet which hit Brandon could have ended up
inside the door panel if the individual was leaning inside the car when shot.
Defendant’s trunk was open at the time of the search, and officers found a license
plate inside. When searching the area near the car, officers found Dominique’s light blue
cell phone that had been thrown underneath a car adjacent to the rental vehicle.
Defendant told the officer that the individual who flagged defendant as he was driving to
the store approached him and was located at both the passenger and driver sides of the car
during the encounter.
Brandon’s doctor testified that Brandon suffered two subcutaneous bullet wounds
that entered and exited the right side of his chest but did not result in damage to any vital
organs. The doctor treated Brandon by irrigating the wounds to clean out the metallic
residue from the bullet and placing a dressing to cover them. It is common for
individuals to suffer muscle or nerve pains or spasms in the region of their gunshot
wound. The doctor also saw evidence that defendant’s ribs were healing from an earlier
fracture.
A crime scene analyst technician took samples from defendant’s hands for a later
determination as to whether there was gunshot residue. A criminalist testified that the
samples from defendant’s hands tested positive for gunshot residue and indicated that
defendant either fired a weapon, handled a weapon that had been recently fired, was near
a weapon that had been recently fired, or came into contact with a surface that had
gunshot residue on it.
7.
DISCUSSION
I. Defendant’s attempted premediated murder conviction is supported by sufficient
evidence.
A. Standard of Review and Applicable Law
In reviewing the sufficiency of evidence to support a conviction, we examine the
entire record and draw all reasonable inferences therefrom in favor of the judgment to
determine whether it discloses substantial credible evidence from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks
(2017) 3 Cal.5th 1, 57 (Brooks).) We do not redetermine the weight of the evidence or
the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young
(2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact.”].) We must accept logical
inferences that the trier of fact might have drawn from the evidence even if we would
have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on
other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.) “If the
circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be reconciled with
a contrary finding.” (Albillar, at p. 60.) If more than one inference may reasonably be
drawn from the evidence, we accept the inference supporting the judgment. (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
“A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon
no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
“A ‘willful, deliberate, and premeditated killing’ is murder in the first degree.
(§ 189.) ‘ “Deliberation” refers to careful weighing of considerations in forming a course
of action; “premeditation” means thought over in advance.’ [Citation.] ‘The true test is
8.
not the duration of time as much as it is the extent of the reflection. Thoughts may follow
each other with great rapidity and cold, calculated judgment may be arrived at quickly,
but the express requirement for a concurrence of deliberation and premeditation excludes
from murder of the first degree those homicides … which are the result of mere
unconsidered or rash impulse hastily executed.’ ” (Brooks, supra, 3 Cal.5th at p. 58.)
In People v. Anderson (1968) 70 Cal.2d 15, 26–27, our Supreme Court “identified
three categories of evidence relevant to deciding whether to sustain a verdict of first
degree murder based on premeditation and deliberation: (1) evidence of planning activity
prior to the killing, (2) evidence of the defendant’s prior relationship with the victim from
which the jury could reasonably infer a motive to kill, and (3) evidence that the manner in
which the defendant carried out the killing ‘was so particular and exacting that the
defendant must have intentionally killed according to a “preconceived design” to take his
victim’s life in a particular way for a “reason” which the jury can reasonably infer from
facts of type (1) or (2).’
“The identified categories of evidence are those we ‘ “typically” find sufficient’ to
uphold first degree murder convictions. [Citation.] But we have also observed that the
Anderson factors are simply an ‘aid [for] reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere unconsidered or rash
impulse.’ ” (Brooks, supra, 3 Cal.5th at pp. 58–59, first bracketed insertion added.)
B. Analysis3
The facts and circumstances here provide substantial evidence to support the jury’s
verdict of first degree murder and willful, premeditated, and deliberate attempted murder.
3 Although defendant’s arguments as to the sufficiency of the evidence are broken into two
sections, one as to his intent to kill and the other as to premeditation and deliberation, we shall
perform one analysis because premeditation and deliberation encompass intent to kill, and a
9.
The Anderson factors support this conclusion. First, defendant arranged a meeting with
Brandon and lured him there with the promise of paying money owed to him. Defendant
rented a car, although he had access to numerous cars at the tow business and owned a
car himself, and then drove to the meeting with a concealed firearm. Defendant greeted
Brandon and distracted him with the money defendant brought. Although the lockbox for
the firearm was later found under the front seat, defendant had the gun ready on his
person as evidenced by his use of it within 10 seconds of greeting Brandon. This is
evidence of planning. (See, e.g., People v. San Nicolas (2004) 34 Cal.4th 614, 658 [the
defendant’s testimony that he saw the victim’s reflection in mirror before turning around
and stabbing her was evidence of planning, as it established the defendant had sufficient
time to reflect].) Second, the manner in which defendant attempted to kill Brandon—a
single shot from close range into the chest within seconds of Brandon’s greeting—
supports an inference of a deliberate decision to ensure death.4 (See People v. Poindexter
(2006) 144 Cal.App.4th 572, 588 [manner of killing supported findings of premeditation
and deliberation, where defendant “quickly fired three shots at the victim, with a shotgun,
from a relatively close range”]; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295
[same, where killings were accomplished through “a close-range shooting without any
provocation or evidence of a struggle”].) Finally, the jury reasonably could have found a
motive for the attempted murder based upon the earlier fight between the two men.
Defendant called Brandon a punk, Brandon dropped to his knees to fight with defendant,
defendant threw something at Brandon, and Brandon punched defendant. Immediately
after that fight, defendant pretended he wished to reconcile and offered Brandon a ride.
finding that the evidence is sufficient as to the former necessarily finds sufficient evidence as to
the latter.
4 “The act of shooting a firearm toward a victim at close range in a manner that could have
inflicted a mortal wound had the shot been on target is sufficient to support an inference of an
intent to kill.” (People v. Houston (2012) 54 Cal.4th 1186, 1218.)
10.
However, once Brandon was in the car, defendant attempted to take Brandon to
defendant’s own business where he had several family members and told Brandon that
defendant wanted Brandon to feel the pain that defendant felt. Brandon was forced to
jump from the car while still in motion to escape defendant. There is no evidence that
defendant and Brandon spoke during the three weeks between this fight and when
defendant called to arrange the meeting on the day of the shooting. (See People v.
Williams (2018) 23 Cal.App.5th 396, 410 [the defendant’s rage at collapse of his marriage
evinced motive for killing his wife].)
In sum, substantial evidence supports the jury’s findings that defendant intended to
kill Brandon, formed that intent through deliberation and premeditation, and then
attempted to kill Brandon.
II. The trial court correctly instructed the jury as to premeditation and deliberation
pursuant to CALCRIM No. 601.
A. Background
During the jury instruction conference, the court indicated that it intended to
instruct on premeditation and deliberation with CALCRIM No. 601. Defendant stated
that he had no issue with the instruction.
The court instructed the jury that to convict defendant of attempted murder, it must
find the People proved beyond a reasonable doubt that defendant took a direct step to kill
another person and, when he did so, defendant intended to kill that person (see
CALCRIM No. 600). The court also instructed the jury as to premeditation and
deliberation using CALCRIM No. 601 as follows:
“The defendant acted willfully if he intended to kill when he acted.
“The defendant deliberated if he carefully weighed the considerations for and
against his choice, and knowing the consequences decided to kill. The defendant acted
with premeditation if he decided to kill before completing the act of attempted murder.
11.
“The length of time the person spends considering whether to kill does not alone
determine whether the attempted killing is deliberate and premeditated.
“The amount of time required for deliberation and premeditation may vary from
person to person and according to the circumstances.
“A decision to kill ma[de] rationally [sic],5 impulsively, and without careful
consideration of the choice and its consequences is not deliberate and premeditated.
“On the other hand, the cold, calculated decision to kill can be reached quickly.
The test is the extent of the reflection, not the length of time.”
B. Standard of Review and Applicable Law
Defendant next contends the trial court prejudicially erred by instructing the jury
with the standard jury instruction’s definition of “premeditation” as it related to the
attempted murder charge. He argues that CALCRIM No. 601 does not correctly define
premeditation because “defining premeditation as a decision to kill before completing the
acts of attempted murder is tantamount to merely requiring the defendant to have acted
with the intent to kill.” We reject defendant’s argument that CALCRIM No. 601 is
flawed.
We review de novo whether a jury instruction correctly states the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.) “In criminal cases, even in the absence of a request, a
trial court must instruct on general principles of law relevant to the issues raised by the
evidence and necessary for the jury’s understanding of the case.” (People v. Martinez
(2010) 47 Cal.4th 911, 953.) “Once we have ascertained the relevant law, we determine
the meaning of the instructions in this regard. Here, the question is whether there is a
‘reasonable likelihood’ that the jury understood the charge as the defendant asserts.
[Citations.] ‘In addressing this question, we consider the specific language under
challenge and, if necessary, the charge in its entirety. [Citation.] Finally, we determine
5 CALCRIM No. 601 uses the word “rashly” and not “rationally.”
12.
whether the instruction, so understood, states the applicable law correctly.’ ” (People v.
Kelly (1992) 1 Cal.4th 495, 525–526, first bracketed insertion added.) “ ‘It is
fundamental that jurors are presumed to be intelligent and capable of understanding and
applying the court’s instructions.’ ” (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 433.)
C. Analysis
CALCRIM No. 601 sufficiently instructed the jury with the correct applicable
legal principles governing first degree murder. According to our Supreme Court, “ ‘[a]
verdict of deliberate and premeditated first degree murder requires more than a showing
of intent to kill.’ ” (People v. Cage (2015) 62 Cal.4th 256, 275.) In addition to
willfulness (intent to kill), “ ‘ “[d]eliberation” refers to careful weighing of considerations
in forming a course of action; “premeditation” means thought over in advance.’ ”
(Brooks, supra, 3 Cal.5th at p. 58; see People v. Houston, supra, 54 Cal.4th at p. 1216
[“ ‘ “ ‘premeditated’ means ‘considered beforehand.’ ” ’ ”]; People v. Jennings (2010)
50 Cal.4th 616, 645 [same]; People v. Halvorsen (2007) 42 Cal.4th 379, 419 [same].)
Thus, CALCRIM No. 601’s language stating that “[t]he defendant acted with
premeditation if he decided to kill before completing the act of attempted murder” is
consistent with our Supreme Court’s definition of premeditation.
Further, CALCRIM No. 601 contains additional language clarifying that a
defendant’s mere decision to kill, by itself, is not sufficient to establish premeditation.
Rather, it explains that “[a] decision to kill made rashly, impulsively, or without careful
consideration of the choice and its consequences is not deliberate and premeditated,” and
that “[t]he test is the extent of the reflection, not the length of time.” Thus, the instruction
expressly provides that an impulsive decision, made without reflection, does not
constitute premeditation. Consequently, rather than remove the element of reflection
required for a finding of first degree murder, the instruction specifically requires that the
13.
jury find defendant guilty only if it finds defendant reflected and considered his actions
before killing.
The element of reflection is similarly embedded in CALCRIM No. 601’s directive
that defendant must not only act with premeditation, but also must act willfully (if “he
intended to kill”) and deliberately (if “he carefully weighed the considerations for and
against his choice, and knowing the consequences decided to kill”). The combined
requirements of “ ‘ “willful, deliberate, and premeditated” ’ ” emphasize that the jury
must find defendant acted with “ ‘substantially more reflection than may be involved in
the mere formation of a specific intent to kill.’ ” (People v. Arias (2008) 45 Cal.4th 169,
181.) Thus again, for the jury to find defendant guilty, it must first find defendant
carefully weighed the consequences of his actions; in other words, it must find defendant
first reflected on his decision to kill.
CALCRIM No. 601’s language is therefore distinguishable from the jury
instruction considered by our Supreme Court in People v. Bender (1945) 27 Cal.2d 164,
abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110, a case relied
on by defendant. The issue in Bender was an instructional error indicating a lethal act
could be found deliberate and premeditated “even though it be executed in the very
moment it is conceived, with absolutely ‘no appreciable’ time for consideration.”
(Bender, at p. 182.) Our Supreme Court found the instruction erroneous because it
“excludes from the required showing any deliberation and premeditation between the
intent and the act of killing” because “other portions of the instruction eliminate any
necessity for deliberation or premeditation in forming the intent.” (Id. at p. 183.) Here,
as discussed, CALCRIM No. 601 requires findings of deliberation, premeditation, and
willfulness. It also embeds the concept of meaningful reflection within those
requirements. Thus, taken as a whole, CALCRIM No. 601 comports with the legal
14.
requirements of attempted premeditated murder, and it fairly and fully instructed the jury
on the applicable law.
We also note that CALCRIM No. 601 is almost identical to CALCRIM No. 521
(applicable to first degree murder), which provides in part: “The defendant is guilty of
first degree murder if the People have proved that [defendant] acted willfully,
deliberately, and with premeditation. The defendant acted willfully if [defendant]
intended to kill. The defendant acted deliberately if [defendant] carefully weighed the
considerations for and against [defendant’s] choice and, knowing the consequences,
decided to kill. The defendant acted with premeditation if [defendant] decided to kill
before completing the act[s] that caused death.” (CALCRIM No. 521.) Defendant’s
criticism of CALCRIM No. 601’s definition of premeditation for attempted murder
equally applies to the standard instruction for murder. However, our Supreme Court has
accepted CALJIC No. 8.20, the counterpart to CALCRIM No. 521, as a correct statement
of the law. (People v. Millwee (1998) 18 Cal.4th 96, 135, fn. 13; People v. Lucero (1988)
44 Cal.3d 1006, 1021.)6
Defendant’s focus on CALCRIM No. 601’s definition of premeditation, without
reading it with the concomitant definition of deliberation, overlooks the fact the crime is
one of deliberate and premeditated attempted murder. The requisite mental state consists
of both components, not one in isolation. (See People v. Favor (2012) 54 Cal.4th 868,
877, quoting People v. Lee (2003) 31 Cal.4th 613, 616 [“the premeditation penalty
provision of section 664[ subd. ](a) ‘must be interpreted to require … the murder
6 CALJIC No. 8.20 provides: “The word ‘deliberate’ means formed or arrived at or
determined upon as a result of careful thought and weighing of considerations for and against the
proposed course of action. The word ‘premeditated’ means considered beforehand.” One
premeditates by deliberating before acting. Although CALCRIM No. 521 and CALCRIM
No. 601 define “premeditation” as a decision to kill before completing the act that caused death,
or the act of attempted murder, we conclude that these phrases convey the same concept as
“considered beforehand” in CALJIC No. 8.20.
15.
attempted was willful, deliberate, and premeditated’ ”].) When CALCRIM No. 601 is
read as a whole, its definitions of deliberation and premeditation properly require the jury
to determine the extent of reflection and whether the attempted murder was the result of
reflection. It correctly tells the jury that defendant deliberated if defendant “weighed the
considerations for and against [defendant’s] choice and, knowing the consequences,
decided to kill.… [And a defendant] acted with premeditation if [defendant] decided to
kill before completing the act[s] of attempted murder.” (CALCRIM No. 601, fourth
bracketed insertion in original.)
Moreover, the jury could not understand the instruction to equate premeditation
with merely an intent to kill because CALCRIM No. 601 specifically instructs that “[a]
decision to kill made rashly, impulsively, or without careful consideration of the choice
and its consequences is not deliberate and premeditated.” Consequently, CALCRIM
No. 601 properly focuses the jury on the decisionmaking process, and not simply the
defendant’s intent to kill.
Here, when the definitions of the terms are read in conjunction, and the instruction
is read as a whole, CALCRIM No. 601 adequately instructed the jury on the
interdependent meanings of “willfully,” “deliberation,” and “premeditation.” There was
no instructional error.
III. The trial court correctly declined to instruct the jury as to the lesser included
offense of voluntary manslaughter.
A. Background
In considering whether to instruct the jury as to provocation, the court noted that
defendant and Brandon had fought three weeks prior to the shooting but there was no
evidence of provocation that would cause an average person not to act rationally or with
due deliberation. Defendant advised the court that he did not believe there was evidence
that would cause someone to act in the heat of passion.
16.
B. Standard of Review and Applicable Law
Defendant also contends that he was prejudiced by the trial court’s failure to sua
sponte instruct the jury on attempted voluntary manslaughter as a lesser included offense
of attempted murder. The claim lacks merit, as there was not sufficient evidence to
warrant the instruction.
The trial court possesses a duty to instruct on all lesser included offenses “ ‘when
the evidence raises a question as to whether all of the elements of the charged offense
were present [citation], but not when there is no evidence that the offense was less than
that charged.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154, disapproved on other
grounds People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7.) However, “the existence
of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included
offense, but such instructions are required whenever evidence that the defendant is guilty
only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.
[Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury
composed of reasonable [persons] could … conclude[]” ’ that the lesser offense, but not
the greater, was committed.” (Breverman, at p. 162, first bracketed insertion added; see
People v. Vargas (2020) 9 Cal.5th 793, 827 [instruction “is not required when the
evidence supporting such an instruction is weak”]; People v. Westerfield (2019) 6 Cal.5th
632, 718 [instruction not required when based on speculation].) Whether or not a
reasonable jury could have so concluded based on the evidence in this case is a matter we
determine de novo. (See People v. Cole (2004) 33 Cal.4th 1158, 1215.)
“ ‘Manslaughter, an unlawful killing without malice, is a lesser included offense of
murder.’ [Citations.] ‘Although section 192, subdivision (a), refers to “sudden quarrel or
heat of passion,” the factor which distinguishes the “heat of passion” form of voluntary
manslaughter from murder is provocation.’ ([Citation]; see People v. Rios (2000)
23 Cal.4th 450, 461 [certain mitigating circumstances will ‘reduce an intentional,
17.
unlawful killing from murder to voluntary manslaughter “by negating the element of
malice” ’ (italics omitted)].) ‘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.’ [Citation.]
‘[T]he victim must taunt the defendant or otherwise initiate the provocation.’ [Citations.]
The ‘ “heat of passion must be such a passion as would naturally be aroused in the mind
of an ordinarily reasonable person under the given facts and circumstances....” ’
[Citation.] ‘ “[I]f sufficient time has elapsed for the passions of an ordinarily reasonable
person to cool, the killing is murder, not manslaughter.” ’ ” (People v. Avila (2009)
46 Cal.4th 680, 705, third, fifth, & eighth bracketed insertions in original.)
C. Analysis
Defendant and Brandon had a fight three weeks prior the shooting, but there is no
evidence that they spoke between the fight until when defendant called Brandon to
arrange the meeting. Generally, if sufficient time has elapsed between the provocation
and the fatal blow for passion to subside and reason to return, the killing is not voluntary
manslaughter. (People v. Moye (2009) 47 Cal.4th 537, 550; People v. Wickersham (1982)
32 Cal.3d 307, 327, disapproved on another ground in People v. Barton (1995) 12 Cal.4th
186, 201.) Three weeks is sufficient time between the provocation and the fatal blow for
defendant’s passion to subside and reason to return. (See People v. Koontz (2002)
27 Cal.4th 1041, 1085–1086) [no manslaughter instruction required where provocation
arising from argument in shared apartment with victim was not immediately present
when the defendant shot victim in security office a short time later following
conversation with security monitor]; People v. Pride (1992) 3 Cal.4th 195, 250 [criticism
the defendant received about his work performance three days before the crimes is
insufficient as a matter of law to arouse feelings of homicidal rage or passion in an
ordinarily reasonable person].)
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Defendant argues that the lapse of three weeks between the fight and the shooting
is not determinative of whether sufficient time had passed for defendant’s “passion to
subside and reason to return to a person of average disposition” because case law
supports that there can be a substantial period between the provocative act and the
attempted killing. Defendant relies upon People v. Wright (2015) 242 Cal.App.4th 1461and People v. Berry (1976) 18 Cal.3d 509 but has misinterpreted the legal principles and
circumstances of those two cases. It is true that for purposes of heat of passion voluntary
manslaughter, the provocative conduct may comprise numerous incidents over a period
of time and not just one incident at the time of the killing. (Wright, at p. 1481; People v.
Wharton (1991) 53 Cal.3d 522, 569.) The provocation need not culminate in an
instigative final act that causes a passionate or immediate reaction resulting in the
attempted killing, it must be built up by provocation over a period of time proceeding the
attempted murder. (Wright, at p. 1488.) However, provocation which builds due to
provocatory acts occurring over a period of time is decidedly different from this case in
which the provocatory act was separated from the attempted murder by a period of time
and without any additional provocatory acts in between.
In Wharton, our Supreme Court approved a provocation instruction where the
defense argued that Wharton killed after he had endured the victim’s continuous
provocatory conduct for weeks. (People v. Wharton, supra, 53 Cal.3d 522, 571.) In
People v. Berry, supra, 18 Cal.3d 509, the “[d]efendant’s testimony chronicle[d] a two-
week period of provocatory conduct by his wife … that could arouse a passion of
jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause
him to act rashly from this passion.” (Id. at p. 515.) Similarly, in People v. Borchers
(1958) 50 Cal.2d 321, the evidence showed a period of “long continued provocatory
conduct” (id. at p. 329) by a deceased woman that the defendant knew less than five
months (id. at pp. 323–326). Where provocative conduct continues over a period of time,
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a defendant may not have the chance for his passions to cool. Compare these cases to
People v. Bufarale (1961) 193 Cal.App.2d 551, where “[t]he provocative factor involved
was [the deceased]’s rejection of [the] defendant’s continued attentions and her decision
to live with her husband; this occurred many days previous to the killing and, as a matter
of law, did not constitute legal cause for the ‘heat of passion’ which will reduce an
unlawful killing from murder to manslaughter.” (Id. at p. 562.)
“In sum, where there is no substantial evidence of sufficient provocation that
would arouse a passion in an ordinarily reasonable person” or where substantial evidence
indicates “sufficient time for that passion to subside in a reasonable person, the court
need not give a requested instruction on voluntary manslaughter.” (People v. Kanawyer
(2003) 113 Cal.App.4th 1233, 1245; see id. at pp. 1246–1247 [evidence that two weeks
intervened between the defendant’s last contact with his grandparents and their deaths
combined with lack of evidence as to any provocation within those two weeks
insufficient to justify voluntary manslaughter instruction because time elapsed between
provocation and the killing was sufficient for passion to subside in a reasonable person].)
In this case, the evidence shows that immediately after their fight, defendant attempted to
take Brandon somewhere to scare him so that Brandon would feel how defendant had
felt. This implies that defendant intended to extract revenge after the fight. Defendant’s
actions the day of the shooting, in the absence of any additional provocation by Brandon,
is evidence that defendant acted out of revenge, an emotion that by law cannot justify an
instruction on heat of passion voluntary manslaughter. (People v. Wright, supra,
242 Cal.App.4th at p. 1481; see People v. Souza (2012) 54 Cal.4th 90, 116–117 [amount
of time between assault on mother and son’s attack on assailant insufficient to establish
“ ‘rekindled’ ” provocation and actions were consistent with revenge which cannot
establish provocation]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [the defendant
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acting out of passion for revenge is not sufficient to establish requisite provocation for
voluntary manslaughter].)
We conclude the trial court did not err in refusing defendant’s request to instruct
the jury on voluntary manslaughter because “ ‘there was no substantial evidence
deserving of consideration which might have led reasonable jurors to reach a verdict of
voluntary manslaughter.’ ” (People v. Kanawyer, supra, 113 Cal.App.4th at p. 1248.)
The temporal nexus requirement for the provocation or heat of passion instruction was
not supported given the lapse of three weeks between the attempt on Brandon’s life and
the earlier fight and in the absence of any intervening contact or incident.
DISPOSITION
The judgment is affirmed.
HILL, P. J.
WE CONCUR:
LEVY, J.
POOCHIGIAN, J.
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