People v. Moore CA4/1 ( 2024 )

Filed 10/3/24 P. v. Moore CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082786
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD285976)
DARCELL MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jeffrey F. Fraser, Judge. Affirmed.
Marcia R. Clark, 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,
A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys
General, for Plaintiff and Respondent.
MEMORANDUM OPINION1
After trial, a jury convicted Darcell Moore of first degree murder (Pen.
Code, § 187, subd. (a)). On appeal, Moore contends the trial court erred by
failing to instruct the jury as to subjective provocation. We disagree and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are largely undisputed. Moore and an associate, Willie Gray,
repeatedly stabbed Shawn Puzzo, a homeless man, while he was sleeping,
leaving him mortally injured.
Moore testified at trial that three days before the stabbing, he had
awakened in the dark to see Puzzo standing very near him, looking at him
with a blank stare. Moore “hopped up” and “got out of the way.” Puzzo then
backed up. That was the only interaction Moore ever had with Puzzo. Moore
testified that this incident scared him. Later, he stole a knife “to protect
[himself] if anything happens.”
A few nights later, Moore and Gray saw Puzzo sleeping in the alcove of
a business. Moore stabbed him twice. “I wasn’t thinking. I don’t know. I
wasn’t even thinking. I just reacted. I snapped. I just went straight. I just
did it.” “I was somewhere else . . . I wasn’t there.” Moore cut his finger while
he was stabbing Puzzo, and the cut required stitches. Moore testified that he
did not decide to stab Puzzo because of the earlier incident and had no other
reason to stab him. Moore testified that Gray also stabbed Puzzo. “So after I
did what I did, I stood up, and for some reason, I don’t know, I just went into
a dizzy state.” He took gift cards out of Puzzo’s pockets but did not remove
1 This case is appropriate for resolution by memorandum opinion
because it raises “no substantial issues of law or fact.” (Cal. Stds. Jud.
Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847.)
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cash that was in one of Puzzo’s pockets. Moore then hid the knife that he had
used. On cross examination, he testified that he “probably” shook Puzzo
awake before he stabbed him. He agreed that Puzzo had done absolutely
nothing to deserve what he did to him.
The court instructed the jury on first degree murder, second degree
murder, voluntary manslaughter, and involuntary manslaughter. The jury
was instructed that Moore “has been prosecuted for first degree murder
under two theories: (1) the murder was willful, deliberate, and premeditated
and (2) felony murder.”
During deliberations, the jury posed a question: “On the verdict form
for Count 1 Murder in the 1st degree, if we have agreed on different theories
do we have to put “not true” at the end of the page. We aren’t unanimous on
which theory it is.” The court responded, “Please see CALCRIM 521. All of
you do not have to agree on a theory of first degree murder (willful,
deliberate, and premeditated or felony murder). If you have reached an
agreement on count one, fill out the blank space for that verdict. If you
cannot agree on willful, deliberate and premeditated, leave that blank.”
The jury returned a guilty verdict on the charge of first degree murder,
and found true the allegation that in the commission of the offense, Moore
used a deadly weapon. However, it left blank the line on the verdict form
stating that the murder was willful, deliberate and premeditated. The jury
also found Moore guilty of assault with a deadly weapon and robbery. The
jury did not return verdicts as to second degree murder, voluntary
manslaughter, involuntary manslaughter, or petty theft.
DISCUSSION
Moore first argues that although not requested by trial counsel, the
court had a sua sponte duty to give an instruction set forth in CALCRIM
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5222 relating to the effect of provocation on the jury’s consideration of first
degree murder because subjective provocation was a defense theory of the
commission of the crime that was supported by the evidence. (See People v.
Breverman (1998) 19 Cal.4th 142, 148–149.) Moore argues that the note sent
by the jury during deliberation shows that the jury was not unanimous in its
theory of first degree murder and that at least one juror relied on a malice
murder theory, and therefore “there was a reasonable likelihood that a juror
– or jurors – would have found appellant guilty of only second degree murder
based on subjective provocation.”
Moore concedes that the court held in People v. Rogers (2006) 39
Cal.4th 826, 880 (Rogers), that CALJIC 8.73, the predecessor instruction to
CALCRIM 522, was a pinpoint instruction, to be given upon request, and the
court did not have a sua sponte duty to give the instruction. Moore
distinguishes Rogers by noting that in Rogers, the jury had not been
instructed that provocation had to be objectively reasonable, whereas in this
2 CALCRIM 522 (“Provocation: Effect on Degree of Murder” provides in
part:
“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.”
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case, provocation was explained only in CALCRIM 5703, which required that
provocation had to be objectively reasonable (“provocation would have caused
a person of average disposition to act rashly and without due deliberation”),
and therefore the jury was not informed that it could consider subjective
provocation in weighing the difference between first degree and second
degree murder.
We reject this effort to distinguish Rogers. In Rogers, as here, the
defense argued that Rogers did not premeditate, but instead acted without
thinking:
“Defendant’s own testimony provided sufficient evidence
from which the jury could conclude the killing was not
premeditated. Defendant testified that when he killed
Clark, he was not making any calculated judgment or
weighing considerations for and against killing her; rather
he felt only fear and pulled the trigger without thinking.
Defendant’s experts likewise testified defendant did not
premeditate or deliberate in the killing of Clark. . . . Dr.
Glaser believed that in this emotional state, defendant was
incapable of premeditating and deliberating. Dr. Bird
agreed the killing of Clark was an impulsive, emotional act
3 CALCRIM 570 (“Voluntary Manslaughter: Heat of Passion” provides in
pertinent 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.”
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of passion and fear, and opined there was no ‘thoughtful
advance planning or anticipation of doing what he did,’ no
reasoning or thinking, and no weighing of consequences.”
(Rogers, supra, 39 Cal.4th at p. 867.)
In Rogers as here, the defense asserted that the trial court should have
instructed the jury that even if provocation was insufficient to reduce the
killing from murder to manslaughter, it could consider provocation to negate
premeditation and deliberation, reducing the crime to second degree murder.
Rogers, supra, 39 Cal.4th at pp. 877-878. (See, e.g. People v. Thomas (1945)
25 Cal.2d 880, 903 [provocation raised reasonable doubt about premeditation
or deliberation, “leaving the homicide as murder of the second degree; i.e., an
unlawful killing perpetrated with malice aforethought but without
premeditation and deliberation.”])
But as the Rogers court concluded, “the manslaughter instruction does
not preclude the defense from arguing that provocation played a role in
preventing the defendant from premeditating and deliberating; nor does it
preclude the jury from giving weight to any evidence of provocation in
determining whether premeditation existed. For the foregoing reasons, we
hold that [the predecessor to CALCRIM 522] is a pinpoint instruction that
need not be given on the court’s own motion.” (Rogers, supra, 39 Cal.4th at
p. 880.) We agree.
Moore contends that even if the court did not have a sua sponte duty to
give CALCRIM 522, his trial counsel was ineffective in failing to make the
request for the instruction, because if counsel had done so, the jury could
have considered “that even though appellant’s earlier confrontation with
[Puzzo] happened days before the homicide, he was subjectively, albeit
unreasonably, triggered when he saw [Puzzo] again” and thus there was a
reasonable likelihood that the jury would have returned a more favorable
verdict.
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Upon review of a claim of ineffective assistance of counsel, first an
appellant must show that trial counsel’s performance was deficient, i.e., that
counsel made errors so serious that appellant was denied his Sixth
Amendment right to counsel. Then appellant must show that his defense
was prejudiced by the deficient performance. (People v. Mitchell (2022) 83
Cal.App.5th 1051, 1060 (Mitchell).)
We cannot conclude that the performance of Moore’s trial counsel was
deficient. Because the court instructed the jury on first degree murder,
second degree murder, voluntary manslaughter, and involuntary
manslaughter, defense counsel was able to argue that Moore’s testimony
established that he acted without thinking and that he could not have
premeditated or deliberated before the killing. That was the crux of counsel’s
argument to the jury:
“Everything about this case screams an action done without
deliberation based on emotion, being overcome and not
thinking through, not carefully weighing the decisions. And
it’s not just Mr. Moore’s own words. It’s backed up by the
context, by the rest of the evidence that has been presented
to you. [¶] The prosecution’s evidence has fallen far short of
beyond a reasonable doubt for premeditated murder, and
you should find him not guilty based on that theory.”
A further instruction on CALCRIM 522 would have added nothing to this
argument.
For the same reason, we cannot conclude that trial counsel’s failure to
request a pinpoint instruction resulted in any demonstrable prejudice. (See
Mitchell, supra, 83 Cal.App.5th at p. 1060.) Moore testified several times as
to his mental state, i.e., that Puzzo had scared him, and that when he
encountered Puzzo on a subsequent occasion, “I wasn’t even thinking. I just
reacted. I snapped.” Trial counsel used this testimony as well as other
evidence to argue that Moore could not have premeditated or deliberated in a
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manner that would allow a conviction for first degree murder. The fact that
at least some members of the jury concluded otherwise does not lead to a
conclusion that counsel was ineffective or that Moore was prejudiced by the
lack of a pinpoint instruction.
DISPOSITION
The judgment is affirmed.
KELETY, J.
WE CONCUR:
IRION, Acting P. J.
CASTILLO, J.
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