People v. O'Connor CA2/1 ( 2024 )

Filed 10/1/24 P. v. O’Connor CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B336404
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA104900)
v.
MARY JEAN O’CONNOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Suzette Clover, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
In 2011, a juvenile court terminated Mary Jean O’Connor’s
parental rights to her child, E. Seven years later, O’Connor
posed as a worker from the Los Angeles County Department of
Children and Family Services (DCFS) to get the home address of
75-year-old Jeri Douglas, one of E.’s former foster parents.
O’Connor then went to that home and killed Douglas. During
O’Connor’s criminal trial, the defense asserted Douglas provoked
O’Connor’s actions. However, O’Connor did not testify, and there
was no evidence that Douglas said or did anything to cause
O’Connor to act in the heat of passion. The jury convicted
O’Connor of first degree willful, deliberate, and premeditated
murder. (Pen. Code,1 §§ 187, subd. (a), 189, subd. (a).)
O’Connor argues we should reverse her conviction because
the trial court prejudicially erred in not instructing the jury on
the lesser included offense of voluntary manslaughter based on
provocation or heat of passion. She contends that even if the trial
court did not so err, there was insufficient evidence to support the
jury’s finding of premeditation and deliberation. She lastly
argues that her counsel rendered ineffective assistance in not
requesting the pinpoint instruction for provocation, which could
have reduced her conviction to murder in the second degree.
We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution’s Trial Evidence
In April 2010, as part of dependency proceedings, Douglas
fostered O’Connor’s son, E.; Douglas later also fostered M.,
1 Further statutory references are to the Penal Code unless
otherwise specified.
2
another of O’Connor’s children. Between April and August 2010,
O’Connor had supervised visits with E. three days a week.
Douglas commonly attended those visits.
As is common in dependency proceedings, Douglas’s
daughter, Tanya J., and son-in-law, Bradley J., started the
process to adopt E. in the event that O’Connor’s parental rights
were later terminated, and E. moved into their home in October
2010. Beginning in August 2010 and continuing until early 2012,
local newspapers published articles that criticized Tanya and
Bradley’s adoption efforts. The articles used confidential
information regarding the dependency proceedings that came
from O’Connor and falsely stated that O’Connor’s relatives had
been prevented from adopting E. The dependency court
admonished O’Connor for providing confidential information to
the press.
Prior to a scheduled visit between O’Connor and M. in
2011, Douglas telephoned Tanya. Tanya described Douglas as
sounding “nervous.” Tanya spoke with Douglas after the visit
and observed that Douglas was crying and her voice was shaking.
Douglas said she was scared. Tanya understood from their
conversation that O’Connor became so agitated during the visit,
either kicking or punching a door, that a security guard
intervened and the social worker directed Douglas to take M. and
leave immediately. Although Douglas lived two miles from where
the visit took place, she took a circuitous, 35-minute route home
because she was fearful O’Connor might follow her.
Around May 2011, Tanya, Bradley, and Douglas began a
relationship with O’Connor’s parents and uncles, who lived in
Chicago. O’Connor’s relatives eventually adopted M. and another
of O’Connor’s children, C. The families became close and
3
remained close through the time of Douglas’s murder. However,
Douglas and Tanya did not see or communicate with O’Connor.
O’Connor failed to complete reunification services during
the dependency proceedings. The dependency court terminated
O’Connor’s parental rights to E., and in October 2011, Tanya and
Bradley finalized their adoption of him. Tanya and Bradley did
not want O’Connor in E.’s life based on how she had behaved
during the dependency proceedings, including an instance where
she had told the dependency judge to “f**k off and die.”
Between August 2011 and January 2017, Douglas and her
other daughter, Lorie, lived in China. Douglas periodically
mentioned to Lorie that it was important to keep their identifying
information hidden from O’Connor.
In 2012, O’Connor sued Tanya and Bradley to have E.
returned to her. The complaint twice alleged, in handwriting
believed to be O’Connor’s, that Douglas had lied during the
adoption process. The lawsuit was dismissed.
Around June 2012, Tanya and Bradley purchased a home
through a trust in order to make their identifying information
more difficult for O’Connor to discover. They feared O’Connor
because she had appeared, uninvited, to E.’s school, and Tanya
thought she saw O’Connor at a park near where they lived before
purchasing the home.
In the summer of 2018, O’Connor’s relatives, who were
involved in dependency proceedings relating to some of
O’Connor’s other children, came to Los Angeles.2 They stayed at
2 O’Connor had five children removed from her custody.
The dependency court placed E. with Tanya and Bradley, M. and
4
Tanya and Bradley’s home for part of their visit, and then stayed
at Douglas’s condominium.
On December 14, 2018, at approximately 4:00 p.m.,
O’Connor telephoned Bradley, falsely identified herself as a
DCFS worker, and asked to speak to Douglas because there was
paperwork related to E.’s adoption that needed Douglas’s
signature. Bradley did not suspect the caller was O’Connor and
gave her Douglas’s phone number. Because there were other
ongoing dependency proceedings, Bradley believed a new DCFS
worker had reviewed prior files and discovered incomplete
paperwork.
At 4:02 p.m. on December 14, 2018, O’Connor left a
voicemail for Douglas in which she identified herself as “Umairah
Fateen of [DCFS],” and asked Douglas to return her call.
Douglas received a second voicemail from “Umairah Fateen” at
4:33 p.m. The caller emphasized that Douglas needed to call her
back. At trial, a DCFS human resources manager testified that
neither DCFS nor Los Angeles County had employed anyone by
the name of Umairah Fateen or Humara Fateen (a related name
later found in O’Connor’s personal journal).
Douglas returned the phone call at 4:34 p.m. and spoke for
nearly three minutes with the caller. Around 4:45 p.m., Douglas
spoke to Tanya on the phone, and said, approximately, “I spoke to
the rudest DCFS worker, and they’re saying that there is some
piece of paper in [E.]’s adoption that hasn’t been signed.” Like
Bradley, Tanya assumed the call had been legitimate. Douglas
told Tanya she had offered to meet the DCFS worker at the
C. with O’Connor’s family, and two other children with other
families.
5
DCFS office, but the worker had suggested they meet at
Douglas’s home instead. Douglas agreed, and the DCFS worker
was scheduled to come to her home at 11:00 a.m. on Monday,
December 17, 2018.
In December 2018, Douglas was 75 years old, wore hearing
aids, suffered from carpel tunnel syndrome, could not walk long
distances due to neuropathy, and lived alone in a condominium.
The condominium complex was gated and locked. Douglas’s front
door had a peephole.
On December 16, 2018, Douglas, Lorie, and Lorie’s two
daughters spent the day together, beginning at approximately
10:00 a.m. They picked up a puppy for Douglas, and then
returned to her condominium, where Lorie and Douglas spent
part of the time sitting on the couch watching the children play
with the puppy. Lorie and her children left Douglas’s home at
approximately 6:30 p.m. Lorie’s daughter spoke with Douglas
again that night at around 9:00 p.m. by video.
Starting around noon on December 17, 2018, both Tanya
and Lorie attempted to contact Douglas by phone and received no
response. Lorie went to Douglas’s condominium building, saw
that her car was in its parking spot, went to her front door,
determined that it was locked, and called the police.
A Pasadena Police Department (PPD) lieutenant arrived at
Douglas’s condominium around 3:25 p.m., met with Lorie, and
knocked on Douglas’s front door without a response. He forced
open the door and found Douglas’s dead body on the floor in a
hallway, lying face down with her face pressed into a couch
cushion. Her short, gray hair was pushed away from the nape of
her neck towards the top of her head. Law enforcement
6
recovered dark, long hair from Douglas’s left hand. A DNA test
matched those hairs to O’Connor.
Law enforcement found a Taser cartridge, wires, and
prongs near Douglas’s body. Taser prongs were found lodged in
the door jamb, but there was no evidence of tasing on Douglas’s
body. Law enforcement also found anti-felon identification tags,
which a Taser launches when fired. The tags are small, circular
pieces of paper similar to confetti with identification numbers on
them. The identification number on the tags found at the crime
scene matched a Taser cartridge O’Connor purchased on
February 7, 2018. The Taser company’s records and O’Connor’s
financial records showed she purchased a Taser in July 2017 and
two packages of cartridges in February 2018.
There were no signs of a struggle in the condominium, no
indication anyone had ransacked it, and no indication of forced
entry. Bradley told the police about the call from a DCFS worker
that he had received a few days before and provided them with
the call history relating to that call.
The medical examiner who conducted the autopsy observed
hemorrhages in Douglas’s neck and eyes, and a fracture to the
neck cartilage surrounding her windpipe. There was also
evidence of lack of oxygen to her brain. There was blood on
Douglas’s nose and the pillow that had been under her face. The
medical examiner testified Douglas’s injuries were consistent
with Douglas being strangled for a period of time and then
suffocated with a pillow against her face. Strangulation typically
causes a loss of consciousness “within a minute or maybe two.”
However, it would take longer if there was a struggle. The
medical examiner testified, “In this case, based on [the]
neuropathology report, she did not die immediately. There was
7
[a] time period before she was asphyxiated and [the] time when
she actually died . . . because neuropathology found changes in
the brain consistent with anoxic brain injuries. If you die
immediately, you don’t see any injuries to the brain. If there is a
time period when [the] brain is deprived of oxygen but [the] heart
still beats, . . . this time period is enough to make changes inside
the brain . . . . So in this case it is not death due to strangulation.
There was a time period between strangulation and [the] victim
dying.” There were also hemorrhages on Douglas’s head
consistent with blunt force trauma, and bruising to her hands
and wrists that could have been caused by blunt force or a “soft
ligature.” However, the medical examiner also testified there
were no “ligature mark[s]” on Douglas’s wrists. The medical
examiner found no evidence that Douglas had been tased.
On December 21, 2018, officers investigated the address to
which the Taser and cartridges had been shipped, and learned
the home belonged to Nowell Teitelbaum, a friend of O’Connor’s.
O’Connor had lived with Teitelbaum for approximately five
months in 2009, and, thereafter, he allowed her to receive mail at
that address. Teitelbaum had last seen O’Connor approximately
six weeks before Douglas’s death. Teitelbaum remembered
O’Connor picking up two Taser-related shipments after they
arrived in the mail.
On December 26, 2018, law enforcement followed a car
belonging to a different friend of O’Connor’s and observed him
park next to and enter an RV. The officers found O’Connor inside
the RV and arrested her. Officers found a cellphone box with a
sticky note on it. Written on the sticky note was the phone
number from which Bradley and Douglas had been called by the
purported DCFS worker. Law enforcement did not find the cell
8
phone. Officers also found O’Connor’s journals. The journals
included at least three entries, including one on December 9,
2018, referring to “Humara Futeen,” phonetically the same false
name O’Connor had used when posing as a DCFS worker. One
journal entry from May 2018 stated, “Use pink gloves and wear a
Humara Futeen suit . . . .” Another journal entry for
December 17, 2018, described a location in Northridge where she
had parked a car, and also described how to take public
transportation in the direction of Santa Barbara.
On January 27, 2019, O’Connor called someone from jail
and told him where she had left a car in Northridge. During the
call, she warned the man that he would find a clown costume and
handcuffs inside, and urged him to not think the items
suspicious, saying, “If the police are saying, ‘oh, that’s evidence
. . . who would have that stuff?’ . . . I used to get paid to deliver
singing telegrams.” Law enforcement located the car in the area
O’Connor had described and identified the man O’Connor had
called as the registered owner. Inside the car, officers found a
clown costume, pink handcuffs, an empty box for the Taser,
another box containing Taser cartridges, and a blue beanie with a
folding knife in it. The Taser itself was never recovered.
Law enforcement found a Los Angeles County public
transportation fare card in O’Connor’s purse. That card
indicated, and video footage confirmed, that O’Connor boarded a
bus at approximately 12:40 p.m. on December 17, 2018 in
Northridge. The video footage showed she was wearing a black,
hooded sweatshirt and surgical mask over her face at a time over
a year before the COVID-19 pandemic began. O’Connor’s
financial records indicated she traveled to Carpinteria and stayed
at a motel there for two days right after Douglas’s murder.
9
B. The Defense Evidence at Trial
O’Connor did not testify. The defense called two witnesses:
one of the criminalists that testified during the prosecution’s case
and Kenneth Moses, the director of a private crime laboratory.
The criminalist testified that insufficient genetic material was
recovered from the pink handcuffs for a DNA comparison. She
acknowledged that DNA could be washed off an object.
Moses testified to his observations after reviewing
documentation of the crime scene. He opined that there had been
a struggle but it was confined to the location of Douglas’s body.
There was no indication that the person with the Taser entered
without permission or that there was any struggle with the
victim during entry. The couch or the couch pillows appeared to
have two or three spots pushed in as though one or more persons
had sat on the couch. In one area of disruption on the couch,
there was a dark object that could have been a cell phone.
During cross-examination, the prosecutor asked if,
hypothetically, Moses’s analysis of the crime scene was
“consistent with the following scenario: that the victim in this
case . . . was running towards the door; that there was someone
shooting at her with a Taser from behind her or to the side of her;
that she tripped or was pushed down by that person; that that
person pounced on top of her before she could make it to the door
and strangled her in that position, followed potentially by
suffocation; and that the movement that caused the rippling in
the rug is consistent with her either falling as she was being
pushed or, as she was struggling for her life, kicking against the
rug with her feet?” Moses responded, “Seems very consistent
with that scenario.” Moses also acknowledged that he did not
know when the indentations on the couch had occurred.
10
C. Jury Instructions
Defense counsel requested the court instruct the jury as to
the lesser included offense of voluntary manslaughter pursuant
to CALCRIM No. 570. That instruction states, in part, “A killing
that would otherwise be murder is reduced to 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 in the 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/her) reasoning or
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.”
(Ibid.)
Defense counsel argued the instruction was warranted
because the evidence supported an inference that O’Connor
visited Douglas to convince her to allow O’Connor to resume a
relationship with E. Counsel argued the evidence further
supported an inference that Douglas knowingly let O’Connor into
her home so that she could speak with O’Connor, and when
Douglas refused O’Connor’s request, O’Connor reacted out of
emotion and launched an attack, causing Douglas’s death.
Counsel further argued, “there is evidence that Miss O’Connor
lost child after child after child after child after child. And I
think it is a very, very reasonable inference that she was very
hurt by this. . . . I think it then becomes a jury determination
about whether the provocation is—whether what happens is
appropriate provocation . . . .”
11
The People disputed there was sufficient evidence to give
the instruction, arguing, “What [defense counsel] has described is
a number of inferential steps from bits and pieces of evidence
that are not directly tied to any proof of specific acts of
provocation. We don’t know that the conversation was
necessarily about [E.]. We don’t know a conversation occurred at
all. . . . In this case, we have no evidence at all about a
provocative act on the part of [the victim]. . . . If the defense
wants to argue that perhaps there was some element of
provocation or rash decision that negated premeditation, that’s
another thing. And the court can give that provocation
instruction. But I don’t believe there are any inferences that one
can draw here because there is no evidence of what went on
inside that apartment or that there was an act of provocation
that the jury can make a decision about.”
Both parties then submitted briefing on whether the court
should give CALCRIM No. 570. After considering those briefs,
the court concluded, “I will not give the voluntary manslaughter
instruction. I just don’t think there is evidence to support it.”
The trial court instructed the jury as to first and second
degree murder with malice aforethought pursuant to CALCRIM
No. 520, which included that, “If you decide that the defendant
committed murder, it is murder of the second degree, unless the
People have proved beyond a reasonable doubt that it is murder
in the first degree as defined in CALCRIM No. 521.” CALCRIM
No. 521, as given to the jury, provided, “The defendant is guilty of
first degree murder if the People have proved that she acted
willfully, deliberately, and with premeditation. The defendant
acted willfully if she intended to kill. The defendant acted
deliberately if she carefully weighed the considerations for and
12
against her choice and, knowing the consequences, decided to kill.
The defendant acted with premeditation if she decided to kill
before completing the act that caused death. [¶] The length of
time the person spends considering whether to kill does not alone
determine whether the 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 made rashly, impulsively, or
without careful consideration is not deliberate and premeditated.
On the other hand, a cold, calculated decision to kill can be
reached quickly. The test is the extent of the reflection, not the
length of time.”
D. Verdict and Sentencing
The jury found O’Connor guilty of willful, deliberate, and
premeditated murder in the first degree. The court sentenced
O’Connor to 25 years to life in state prison.
DISCUSSION
A. The Trial Court Did Not Err in Declining to Give an
Instruction on Voluntary Manslaughter
General Legal Principles and Standard of Review
“Criminal homicide is divided into two types: murder and
manslaughter.” (People v. Beltran (2013) 56 Cal.4th 935, 941.)
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) Malice aforethought may be
express or implied. (§ 188, subd. (a).) “A killing with express
malice formed willfully, deliberately, and with premeditation
constitutes first degree murder. [Citation.] ‘Second degree
murder is the unlawful killing of a human being with malice
aforethought but without the additional elements, such as
13
willfulness, premeditation, and deliberation, that would support
a conviction of first degree murder.’ [Citation.]” (People v.
Beltran, supra, at p. 942.) Voluntary manslaughter “is the
unlawful killing of a human being without malice,” “upon a
sudden quarrel or heat of passion” (§ 192, subd. (a)) and is a
lesser included offense of murder (People v. Beltran, supra, at
p. 942).
“ ‘[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.’ [Citation.] ‘ “To justify a
lesser included offense instruction, the evidence supporting the
instruction must be substantial—that is, it must be evidence
from which a jury composed of reasonable persons could conclude
that the facts underlying the particular instruction exist.” ’
[Citation.] ‘Speculative, minimal, or insubstantial evidence is
insufficient to require an instruction on a lesser included offense.’
[Citation.] ‘We review independently whether the trial court
erred in rejecting an instruction on a lesser included offense.’
[Citation.]” (People v. Thomas (2023) 14 Cal.5th 327, 385.)
Substantial Evidence Did Not Support an Instruction
for Voluntary Manslaughter
“Heat of passion arises if, ‘ “at the time of the killing, the
reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.” ’
[Citation.] Heat of passion, then, is a state of mind caused by
legally sufficient provocation that causes a person to act, not out
of rational thought but out of unconsidered reaction to the
provocation. . . . [A] person who acts without reflection in
14
response to adequate provocation does not act with malice.”
(People v. Beltran, supra, 56 Cal.4th at p. 942.)
“ ‘The heat of passion requirement for manslaughter has
both an objective and a subjective component. [Citation.] The
defendant must actually, subjectively, kill under the heat of
passion. [Citation.] But the circumstances giving rise to the heat
of passion are also viewed objectively. . . . “[T]his 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,” because “no defendant may set up his own
standard of conduct and justify or excuse himself because in fact
his passions were aroused, unless further the jury believe that
the facts and circumstances were sufficient to arouse the passions
of the ordinarily reasonable man.” [Citation.]’ [Citation.]”
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.) “ ‘To
satisfy the objective or “reasonable person” element of this form
of voluntary manslaughter, the accused’s heat of passion must be
due to “sufficient provocation.” ’ [Citation.]” (Id. at p. 1144.)
O’Connor acknowledges there is no direct evidence of
provocation at the time of the encounter between her and
Douglas. O’Connor argues instead that “the accumulated history
between the parties evidenced at trial was that of a turbulent
tale of the taking and keeping away of a child from her mother.
Such provocation of a mother through custody of her child
warranted an instruction of voluntary manslaughter where, as
here, the evidence of the encounter suggests a peaceful beginning
between the parties and an unplanned and emotional killing.”
O’Connor cites the following as evidence justifying an
instruction on provocation: (1) O’Connor was homeless, mentally
ill, and a prostitute who had multiple children removed from her
15
care; (2) two of her children were temporarily placed with
Douglas years prior to the killing; (3) Douglas facilitated
O’Connor’s visits with her children during the dependency
proceedings, but the visits became “contentious toward the end”;
(4) O’Connor was extremely upset when the dependency court
terminated her parental rights; (5) Douglas’s daughter adopted
[E.]; (6) Douglas and her family kept E. from O’Connor;
(7) O’Connor sought to have E. returned to her and filed a civil
lawsuit for that purpose; (8) a few months prior to O’Connor
killing Douglas, Douglas’s family and O’Connor’s family had a
“family reunion,” but did not invite O’Connor; (9) Douglas was
afraid for the children and afraid that O’Connor might take them;
(10) O’Connor scheduled a meeting with Douglas using a ruse;
(11) Douglas and O’Connor’s interactions had been limited to
O’Connor’s efforts to see her children; (12) Douglas no longer had
the ability to allow O’Connor to see her children and was against
doing so in any event; (13) there was no sign of forced entry, the
door had a peephole, and there was no evidence of a struggle at
the entryway, permitting the jury to infer that Douglas
recognized O’Connor and invited her in for purposes of at least a
brief discussion; and (14) the crime scene indicated an attack
from the sitting area toward the front door, and, along with the
couch cushions that suggested recent use, permitted the jury to
infer that O’Connor and Douglas had a peaceful conversation
prior to the attack. O’Connor asserts the jury could reasonably
infer from this evidence that she intended to meet with Douglas
not to kill Douglas but to try to arrange to see E., that Douglas
declined that request, which provoked O’Connor and led her to
kill Douglas in the heat of passion, and that O’Conner panicked
after she killed Douglas.
16
The Attorney General argues O’Connor’s theory that
Douglas provoked O’Connor relies on speculation and
unreasonable inferences rather than substantial evidence. We
agree.
Douglas’s involvement in the dependency proceedings six to
seven years prior to O’Connor’s killing or that she met with
O’Connor’s family six months prior to the killing fail to constitute
provocation. “ ‘ “ ‘[I]f sufficient time has elapsed for the passions
of an ordinarily reasonable person to cool, the killing is murder,
not manslaughter.’ ” ’ [Citation.]” (People v. Beck and Cruz
(2019) 8 Cal.5th 548, 649.) “[I]t is not sufficient that a person ‘is
provoked and [then] later kills.’ ” (People v. Nelson (2016) 1
Cal.5th 513, 539.) Without evidence of a sudden quarrel or heat
of passion, neither long-simmering resentment, a passion for
revenge, nor persistent, brooding jealousy are sufficient to reduce
murder to manslaughter. (See People v. Carasi (2008) 44 Cal.4th
1263, 1306-1307, 1308 [holding voluntary manslaughter
instruction was not warranted based on the defendant’s “long-
simmering resentment” of former girlfriend who obtained child
custody and support orders, which she was “legally entitled to
do,” and who maintained a relationship with the defendant’s
mother]; People v. Gutierrez, supra, 28 Cal.4th at p. 1144 [“If
anything, [the] defendant appears to have acted out of a passion
for revenge, which will not serve to reduce murder to
manslaughter”]; People v. Hudgins (1967) 252 Cal.App.2d 174,
181 [holding the trial court properly refused to give a voluntary
manslaughter instruction where the evidence demonstrated only
“persistent, brooding jealousy”].)
Moreover, “ ‘ “[t]he provocation which incites the defendant
to homicidal conduct in the heat of passion must be caused by the
17
victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim.” ’ [Citation.]”
(People v. Beck and Cruz, supra, 8 Cal.5th at p. 649.) O’Connor
was undoubtedly upset at losing her parental rights, but she
could not reasonably believe that it was Douglas that caused
O’Connor to lose E. or her other children. Rather, the evidence
showed that O’Connor failed to comply with the dependency
court’s reunification plan, and, thus, the court terminated her
parental rights. None of O’Connor’s children lived with Douglas,
Douglas was not the adoptive parent to any of those children, and
Douglas alone could not grant or deny any request by O’Connor
to visit with any of O’Connor’s children.
Turning to what occurred on December 17, 2018, there is
no evidence of what was said, much less evidence that Douglas
said anything to O’Connor to provoke her. Nor is there any
evidence from which the jury could reasonably infer that Douglas
acted in a manner that was “ ‘ “sufficient to arouse the passions of
the ordinarily reasonable [person]” ’ ” (People v. Gutierrez, supra,28 Cal.4th at p. 1144) while she and O’Connor were alone in
Douglas’s home. O’Connor’s theory is based upon only a
possibility that Douglas provoked her. However, a mere
possibility is not the same as a reasonable inference. (See People
v. Blinks (1958) 158 Cal.App.2d 264, 266.) “In any given case,
one ‘may speculate about any number of scenarios that may have
occurred. . . . A reasonable inference, however, “may not be based
on suspicion alone, or on imagination, speculation, supposition,
surmise, conjecture, or guess work. [¶] . . . A finding of fact must
be an inference drawn from evidence rather than . . . a mere
18
speculation as to probabilities without evidence.” ’ [Citations.]”3
(People v. Cluff (2001) 87 Cal.App.4th 991, 1002.)
Finally, even if there had been evidence that Douglas and
O’Connor had a discussion in which Douglas refused to help
O’Connor see E., that would still not support the giving of an
instruction as it does not demonstrate provocation. O’Connor’s
parental rights had been terminated; she had no right to continue
seeing her child. Douglas had no obligation to help O’Connor by
trying to intervene with the children’s adoptive parents who
themselves feared O’Connor. Douglas refusing to help may have
subjectively enraged O’Connor, but as a matter of law it was not
“ ‘ “sufficient to arouse the passions of the ordinarily reasonable
[person]” ’ ” and constitute provocation for purposes of
manslaughter. (People v. Gutierrez, supra, 28 Cal.4th at p. 1144.)
In sum, there was not substantial evidence upon which a
reasonable trier of fact could find Douglas provoked O’Connor.
Accordingly, the trial court did not err in declining to instruct the
jury as to voluntary manslaughter.4
3 O’Connor cites People v. Wright (2015) 242 Cal.App.4th
1461 as a case where “[t]he defendant testified, but not to any
provocation in the moment of the encounter.” O’Connor’s
summary of the testimony, however, excludes that the
defendant’s testimony from the first trial (which the trial court
declared a mistrial) was played for the jury. That testimony was
extensive and included the defendant’s description of how she felt
provoked. (See id. at pp. 1474-1479.)
4 The parties agree that the harmless beyond a reasonable
doubt standard articulated in Chapman v. California (1967) 386
U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] would apply if the trial
court erred in failing to instruct the jury as to the lesser included
19
B. Substantial Evidence Supported the Jury’s Findings
of Premeditation and Deliberation
O’Connor argues there is insufficient evidence of
premeditation and deliberation to support the jury’s verdict of
murder in the first degree. “ ‘When considering a challenge to the
sufficiency of the evidence to support a conviction, we review the
entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from
which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citation.] We determine ‘whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’
[Citation.] In so doing, a reviewing court ‘ “ ‘presumes in support
of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” [Citation.]’ [Citation.]”
(People v. Morales (2020) 10 Cal.5th 76, 88.)
offense of manslaughter. (See People v. Schuller (2023) 15
Cal.5th 237, 243.) Even if we posit the trial court erred in failing
to instruct the jury as to voluntary manslaughter, that error
would be harmless under Chapman. The court instructed the
jury as to second degree murder and that if it found O’Connor
guilty of murder, it must find her guilty of second degree murder
unless it also found, beyond a reasonable doubt, that the murder
was willful, deliberate, and premeditated. That the jury found
O’Connor guilty of willful, deliberate, and premeditated murder
necessarily demonstrates that any such error was harmless
beyond a reasonable doubt. (See People v. Peau (2015) 236
Cal.App.4th 823, 832.)
20
As described above, murder that is willful, deliberate, and
premeditated is murder in the first degree. (§§ 187, subd. (a),
189, subd. (a).) “ ‘ “ ‘In this context, “premeditated” means
“considered beforehand,” and “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.” ’ ” [Citation.] “ ‘An intentional killing is premeditated
and deliberate if it occurred as the result of preexisting thought
and reflection rather than unconsidered or rash impulse.’ ”
[Citations.] “The true test is 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 . . . .” [Citation.]’ [Citation.]” (People v. Morales,
supra, 10 Cal.5th at p. 88.)
In People v. Anderson (1968) 70 Cal.2d 15, our Supreme
Court identified three categories of evidence generally sufficient
to sustain a finding of premeditation and deliberation. (Id. at
p. 26.) Those categories are evidence of (1) planning activity,
(2) motive, and (3) “ ‘facts about the nature of the killing from
which the jury could infer that the manner of killing was so
particular and exacting that the defendant must have
intentionally killed according to a “preconceived design” to take
[her] victim’s life in a particular way for a “reason” . . . .’
[Citation.]” (People v. Morales, supra, 10 Cal.5th at p. 89, citing
People v. Anderson, supra, at pp. 26-27.) Courts affirm “verdicts
of first degree murder typically when there is evidence of all
three types and otherwise require[ ] at least extremely strong
evidence of (1) or evidence of (2) in conjunction with either (1) or
(3).” (People v. Anderson, supra, at p. 27.) However, “ ‘ “[t]he
Anderson factors, while helpful for purposes of review, are not a
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sine qua non to finding first degree premeditated murder, nor are
they exclusive.” ’ [Citation.]” (People v. Hovarter (2008) 44
Cal.4th 983, 1019.)
Here, the evidence of planning was strong. On the Friday
before the Monday on which O’Connor killed Douglas, O’Connor
made three phone calls to get access to Douglas, each time
engaging in a ruse by posing as a DCFS worker to schedule a
meeting with Douglas based on the pretense that paperwork
concerning E.’s adoption was not in order and required Douglas’s
signature. When Douglas offered to meet O’Connor at DCFS’s
office, a public location, O’Connor suggested instead meeting at
Douglas’s home, where Douglas lived alone. On Monday,
O’Connor kept the appointment and brought a Taser to Douglas’s
home, which although not lethal, could be used to incapacitate
Douglas. Although she was unsuccessful in actually “tasing”
Douglas, O’Connor fired that weapon while at Douglas’s home.
Additionally, O’Connor’s planning activity extended to escaping
identification and arrest after the killing: she hid her identity by
wearing a mask, abandoned the car she had borrowed, and
traveled by public transportation from Northridge to Carpinteria,
a route she detailed in her journals.
As to motive, the jury could reasonably infer that O’Connor
acted out of hatred and a desire for revenge. E. was O’Connor’s
first child for which the dependency court terminated her
parental rights. Douglas was the first member of her family,
which successfully adopted E., to become involved in the
dependency proceedings. Douglas and her family also helped
O’Connor’s family adopt two of O’Connor’s other children.
Moreover, as Tanya testified, in the lawsuit against Tanya and
22
Bradley, O’Connor alleged that Douglas had lied during the
dependency proceedings.
Finally, the manner of killing suggested a premeditated,
deliberate killing. O’Connor shot a Taser at Douglas and missed.
However, she did not then stop attacking Douglas. Instead,
O’Connor strangled Douglas, and the evidence at trial, including
O’Connor’s hair in Douglas’s hand, the displaced edge of the rug,
and Moses’s testimony indicated that Douglas tried to fight back.
Thus, according to the medical examiner, O’Connor’s
strangulation of Douglas likely took a few minutes, and involved
strangulation and then suffocation, during which time O’Connor
had an opportunity to consider and recommit to killing Douglas.
(See, e.g., People v. Hovarter, supra, 44 Cal.4th at p. 1020
[explaining that strangulation, “which requires an offender to
apply constant force to the neck of the victim, affords ample time
for the offender to consider the nature of his deadly act,” which
would permit a rational trier of fact to infer a deliberate plan to
kill].) Further, the jury could infer from the couch pillow under
Douglas’s face that O’Connor intended to silence Douglas while
she attacked her or suffocate her after the strangulation was
insufficient. This indicates O’Connor chose to continue
attempting to kill Douglas as she would have had to walk to the
couch to get the cushion before placing it under Douglas’s face.
Accordingly, substantial evidence supported the jury’s
finding that the murder was deliberate and premeditated.
C. Defense Counsel Was Not Ineffective in Not
Requesting a Pinpoint Instruction on Provocation
Criminal defendants have a constitutional right to the
effective assistance of counsel at trial and on appeal. (See
Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct.
232052, 80 L.Ed.2d 674].) To establish ineffective assistance, a
defendant must demonstrate both that counsel’s performance fell
below an objective standard of professional reasonableness and
that there is a reasonable probability that, but for counsel’s
failings, there would have been a more favorable outcome. (Id. at
pp. 687-688, 694.)
O’Connor argues that defense counsel rendered ineffective
assistance because he did not request the pinpoint instruction on
provocation, CALCRIM No. 522. That instruction states,
“Provocation may reduce a murder from first degree to second
degree [and may reduce a murder to manslaughter]. The weight
and significance of the provocation, if any, are for you to decide.
[¶] If you conclude that the defendant committed murder but
was provoked, consider the provocation in deciding whether the
crime was first or second degree murder. [Also, consider the
provocation in deciding whether the defendant committed murder
or manslaughter.]” (Ibid., bracketed text in original.)
O’Connor fails to demonstrate either that defense counsel
was ineffective or that she was prejudiced by his decision not to
request the instruction. In requesting the instruction on the
lesser included offense of voluntary manslaughter, defense
counsel repeatedly argued that instruction was warranted
because O’Connor had been provoked. The trial court observed
that in order to give the instruction, it would have “to presume
the provocation.” After the benefit of two sessions of argument
and the parties’ briefing, the court ruled the evidence was
insufficient to warrant a manslaughter instruction. Thus, the
trial court would have also denied a request that it give the
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pinpoint instruction on provocation.5 Nor would have arguing for
such an instruction provided grounds for meritorious appeal
given that we have determined there is no substantial evidence
that would have warranted giving such an instruction. “Counsel
is not ineffective for failing to make frivolous or futile motions.”
(People v. Thompson (2010) 49 Cal.4th 79, 122.)
5 O’Connor argues the prosecutor conceded the provocation
instruction should be given, and that this demonstrates her
counsel was ineffective. In particular, O’Connor points to the
prosecutor’s statement that, “If the defense wants to argue that
perhaps there was some element of provocation or rash decision
that negated premeditation, that’s another thing. And the court
can give that provocation instruction.” Read in context, however,
it is clear the prosecutor was saying that if the defense put forth
some evidence of provocation, then the provocation instruction
could be given. Immediately after making that statement, the
prosecutor clarified, “But I don’t believe there are any inferences
that one can draw here because there is no evidence of what went
on inside that apartment or that there was an act of provocation
that the jury can make a decision about.”
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
KLINE, J.*
* Retired Presiding Justice of the Court of Appeal, First
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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