People v. Nieto CA4/2

Filed 6/2/21 P. v. Nieto CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074435
v. (Super.Ct.No. FWV17004499)
JOHN NIETO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,
Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn
Kirschbaum and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury convicted John Nieto of first degree murder. (Pen. Code, § 187, subd. (a);
unlabeled statutory references are to this code.) He was sentenced to 25 years to life in
state prison.
On appeal, Nieto argues that the trial court prejudicially erred by (1) failing to
define the term “provocation” in the jury instruction pertaining to second degree murder,
and (2) improperly answering a jury question seeking clarification of the distinction
between the degrees of murder. We affirm.
BACKGROUND
A. The Perceived Conflict
Nieto started dating Elisabeth M. in 2011. They had a child together and started
living together in 2014. In 2017, Elisabeth began working at a new job. She sometimes
gave a coworker, John Doe, rides to and from work.
In October 2017, Nieto found text messages between Doe and Elisabeth on
Elisabeth’s cell phone, and the messages led Nieto to believe that Elisabeth was cheating
on him with Doe. Nieto slapped Elisabeth and demanded that she no longer have any
contact with Doe. Elisabeth broke up with Nieto and moved out of their shared
residence, taking their child with her.
B. The Killing
On November 22, 2017, Elisabeth gave Doe a ride after work and dropped him off
in the parking lot of a 7-Eleven store near his home. As Elisabeth was exiting the parking
lot, she noticed Nieto in his pickup truck exiting a parking lot across the street. The truck
2
passed in front of her car with its lights off. Doe was walking on the sidewalk toward the
intersection and stopped at the corner. Nieto pulled into the 7-Eleven parking lot and
made a U-turn, which caused his tires to screech.
Nieto attempted to hit Doe with his truck as Doe was crossing the street. Elisabeth
honked her horn to get Doe’s attention. Doe ran and avoided being hit. Doe initially
sought shelter between two electrical boxes in a parking lot. Driving fast, Nieto followed
Doe into the parking lot. Doe took cover between the electrical boxes for a couple of
seconds. Doe then ran back across the street toward the 7-Eleven. Nieto turned his truck
around, “burned rubber,” “floored” the vehicle, and chased after Doe. Nieto drove his
truck over the curb and into Doe, crushing him against a wall. Nieto’s truck was
destroyed in the impact, which also caused the front tires to blow out and the hood to fly
up. Nieto exited the truck and ran away. Within minutes of being struck, Doe died from
multiple blunt force injuries.
When Elisabeth saw Nieto chasing Doe toward the 7-Eleven, she drove back into
the 7-Eleven parking lot. After Nieto struck Doe, Elisabeth got out of her car and saw
Doe lying on the ground. Elisabeth then left the 7-Eleven parking lot and picked up
Nieto.
C. Nieto’s Interview with Law Enforcement
The next morning, law enforcement officers took Nieto into custody. An officer
interviewed Nieto. Nieto initially claimed that he did not remember what happened and
that he did not “even know” Doe and had never seen Doe before. But Nieto subsequently
3
explained that he “just wanted to fucking run [Doe] over” because Nieto believed that
Elisabeth was cheating on Nieto with Doe.
Sometime shortly after Halloween (two to three weeks before the killing), Nieto
had called Doe. Nieto told Doe to “step off,” and Doe responded that he would and
understood Nieto’s concerns. Nieto warned that Doe “better watch out,” and that Doe
was “gonna get [himself] into problems.” Nieto told Doe that he would “do whatever
[he] ha[d] to for [his] family.” Nieto described the conversation with Doe as the two men
“talking cool” with “no arguing, no screaming through the phone or nothing.”
By reading Elisabeth’s text messages, Nieto learned that when Elisabeth gave Doe
rides home from work she typically dropped off Doe at a particular 7-Eleven. Nieto tried
to call Elisabeth the day of the incident because it was her birthday. Elisabeth did not
answer his calls, which angered him. Nieto “had a feeling” that Elisabeth was going to
drop off Doe at the 7-Eleven that night, so Nieto went there, parked in a different parking
lot, and waited while thinking to himself “fuck it, I’m ruining [Doe’s] Thanksgiving and
fuckin’ holidays. [F]uckin’ kill him.”
Nieto was watching from his truck as Elisabeth drove into the 7-Eleven parking
lot. Doe exited Elisabeth’s car, and Nieto “just went crazy and like just furious and I
don’t know what the fuck I did. I just wanted to fuckin’ kill him.” After Doe exited
Elisabeth’s car, Nieto saw Doe walk to the sidewalk, wait for the light, and then start
crossing the street in the crosswalk; Nieto then “stepped on it” and “tried to hit” Doe.
Elisabeth honked her horn, so Doe “dodged” Nieto’s car and started running. Nieto said
4
he then “busted a bitch and went back; I’m gonna get you, man.” Nieto described Doe as
running one way and then running in a different direction when Nieto “kind of got in
front of him.” When Doe “ran back” in the other direction, Nieto “just got on top of the
curb and I said fuck him, I’m just gonna run him over, so I got on top of the curbs and
then I just went this way, and he started running this way, so I guess I just caught up to
him. I just went on top of the curbs again. I just bounced.” Nieto was not certain how
fast he was going when he hit the wall, but he had “floored it” with the gas pedal pressed
“all the way down” until he hit the wall. Nieto said he “just lost [his] mind.”
Nieto claimed that when he hit the wall he had not seen whether he hit Doe. But
Nieto “didn’t really care if [Doe] died or not, just fuckin’ hit him and that’s it.” When the
interviewer informed Nieto that he had hit Doe, who had died, Nieto responded, “Well
fuck it he looked for it, man.” Nieto also said “I don’t regret it” and repeatedly said that
Doe “asked for it” and “deserved it.” Nieto said that he would tell his son the truth about
what happened and tell him, “yeah, fuckin’ I did it and I don’t regret it, you know.”
D. Defense Evidence
A clinical and forensic psychologist who had evaluated Nieto testified on Nieto’s
behalf. She opined that Nieto was an impulsive gratification seeker with a slightly below
average IQ who has impulse control problems and difficulty “thinking before he acts.”
From Nieto’s self-reporting, the psychologist found that Nieto had “a very high
probability of a number of substance abuse problems that are quite severe,” including
using methamphetamine.
5
E. Theories of the Case
The prosecution argued that Nieto committed first degree murder under two
possible legal theories: (1) with premeditation and deliberation and (2) by lying in wait.
Defense counsel argued that Nieto was guilty of only voluntary manslaughter. Counsel
argued that Nieto acted in the heat of passion as a result of provocation negating malice.
Counsel never argued that the jury should find Nieto guilty of second degree murder
because of provocation that made Nieto subjectively unable to premeditate or deliberate.
DISCUSSION
A. Relevant Principles of Homicide
“‘“Homicide is the killing of a human being by another . . . .”’ [Citation.]
Criminal homicide is divided into two types: murder and manslaughter. ‘Murder is the
unlawful killing of a human being, or a fetus, with malice aforethought.’ (§ 187, subd.
(a).) Malice aforethought may be express or implied. (§ 188.)” (People v. Beltran
(2013) 56 Cal.4th 935, 941 (Beltran).) “A killing with express malice formed willfully,
deliberately, and with premeditation constitutes first degree murder.” (Id. at p. 942.)
Likewise, lying in wait “is a means of proving first degree murder. ‘Lying in wait is the
functional equivalent of proof of premeditation, deliberation, and intent to kill.’” (People
v. Sandoval (2015) 62 Cal.4th 394, 416; § 189, subd. (a).)
“‘Second degree murder is the unlawful killing of a human being with malice
aforethought but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree murder.’” (Beltran, supra,
6
56 Cal.4th at p. 942.) To reduce a murder to second degree, “premeditation and
deliberation may be negated by heat of passion arising from provocation.” (People v.
Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).) “If the provocation would
not cause an average person to experience deadly passion but it precludes the defendant
from subjectively deliberating or premeditating, the crime is second degree murder.
[Citation.] If the provocation would cause a reasonable person to react with deadly
passion, the defendant is deemed to have acted without malice so as to further reduce the
crime to voluntary manslaughter.” (Ibid.)
B. Instructional Error
The jury was instructed with the standard instructions for degrees of homicide
(CALCRIM No. 520), first degree murder (CALCRIM No. 521), provocation
(CALCRIM No. 522), and voluntary manslaughter (CALCRIM No. 570). CALCRIM
No. 522 was given as follows: “Provocation by the victim 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 by the victim, 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.”
(CALCRIM No. 522.) Nieto did not request any clarification or modification of any of
the instructions.
7
The jury was also instructed on voluntary manslaughter according to a modified
version of CALCRIM No. 570 as follows: “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 by the victim; [¶]
2. As a result of the provocation, the defendant acted rashly and under the influence of
intense emotion that obscured his 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.” “In deciding whether
the provocation was sufficient, consider whether a person of average disposition, in the
same situation and knowing the same facts, would have reacted from passion rather than
from judgment.”
Nieto argues that “the term provocation in the context of second degree murder
has a technical meaning peculiar to the law,” which relates to the effect that the
provocation has on a defendant’s subjective state of mind as opposed to the objective
reasonableness of the provocation necessary to reduce the crime to voluntary
manslaughter. Because of that purported technical meaning, he argues that the trial court
had a sua sponte obligation to modify CALCRIM No. 522 to instruct the jury on that
meaning. In essence, he argues that CALCRIM No. 522 is misleading because it does
8
not define the term “provocation” for second degree murder as being subjective. We are
not persuaded.1
Absent a request, the trial court has no sua sponte obligation to instruct on
provocation for second degree murder, because it is a pinpoint instruction. (People v.
Rivera (2019) 7 Cal.5th 306, 328.) Even when a trial court “has no sua sponte duty to
instruct on a particular legal point, when it does choose to instruct, it must do so
correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) In addition, the trial court
generally “has a sua sponte duty to give amplifying or clarifying instructions ‘“where the
terms used [in an instruction] have a technical meaning peculiar to the law.”’” (People v.
Richie (1994) 28 Cal.App.4th 1347, 1360.) “‘“A word or phrase having a technical, legal
meaning requiring clarification by the court is one that has a definition that differs from
its nonlegal meaning.”’” (People v. Cross (2008) 45 Cal.4th 58, 68.) We independently
review whether a jury instruction correctly states the law. (People v. Bates (2019) 35
Cal.App.5th 1, 9.)
Other courts have concluded that CALCRIM No. 522 is not misleading. On
appeal from a first degree murder conviction, the defendant in Hernandez, supra, 183
Cal.App.4th 1327, argued that CALCRIM No. 522 was incomplete and misleading in
part because it did not instruct the jury that provocation insufficient to reduce the crime to
1 Because we conclude that the trial court did not err, we need not and do not
address the People’s contention that Nieto forfeited this argument by failing to request a
clarifying instruction in the trial court. (See People v. Mayfield (1997) 14 Cal.4th 668,
778-779, abrogated on another ground by People v. Scott (2015) 61 Cal.4th 363, 390, fn.
2.)
9
manslaughter could be sufficient to reduce the crime to second degree murder.
(Hernandez, at p. 1332.) The court rejected the argument, explaining: “CALCRIM No.
522 instructs the jury to ‘consider the provocation in deciding whether the crime was first
or second degree murder’ and ‘consider the provocation in deciding whether the
defendant committed murder or manslaughter.’ Thus, the instruction plainly states the
jury should consider provocation for both second degree murder and manslaughter.” (Id.
at p. 1335.)
Relying in part on the analysis in Hernandez, supra, 183 Cal.App.4th 1327,
People v. Jones (2014) 223 Cal.App.4th 995 (Jones) rejected the defendant’s argument
that the instructions on provocation for second degree murder and voluntary
manslaughter were misleading because they did not “inform the jury that the objective
standard applies only for reduction of murder to voluntary manslaughter, and does not
apply to reduce first to second degree murder.” (Jones, supra, at p. 999.) There, as here,
the jury was instructed with CALCRIM Nos. 520, 521, 522, and 570. (Ibid.) Jones
concluded that the instructions given accurately stated the law. The court explained that
the instructions “accurately inform the jury what is required for first degree murder, and
that if the defendant’s action was in fact the result of provocation, that level of crime was
not committed. CALCRIM Nos. 521 and 522, taken together, informed jurors that
‘provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this
in turn shows no premeditation and deliberation.’ [Citation.] As the jury also was
instructed [with CALCRIM No. 570], a reduction of murder to voluntary manslaughter
10
requires more. It is here, and only here, that the jury is instructed that provocation alone
is not enough for the reduction; the provocation must be sufficient to cause a person of
average disposition in the same situation, knowing the same facts, to have reacted from
passion rather than judgment. [¶] There was no error in giving these instructions.” (Id. at
p. 1001.)
We agree with the reasoning and analyses in Jones, supra, 223 Cal.App.4th 995,
and Hernandez, supra, 183 Cal.App.4th 1327. CALCRIM No. 522 accurately describes
the law as it pertains to provocation for second degree murder and is not misleading.
Nieto claims that Jones, supra, 223 Cal.App.4th 995, and Hernandez, supra, 183
Cal.App.4th 1327, are inapposite because the defendants in those cases did not address
the same argument that Nieto makes about provocation having a technical meaning
peculiar to the law. Regardless of the issues addressed or not addressed in Jones and
Hernandez, our Supreme Court has held that in cases in which the evidence is not
sufficient to support an instruction on voluntary manslaughter the term provocation as
used in the provocation instruction bears its “common meaning,” which requires ‘“no
further explanation in the absence of a specific request.”’ (People v. Souza (2012) 54
Cal.4th 90, 118 (Souza); People v. Cole (2004) 33 Cal.4th 1158, 1217-1218 (Cole).)
Souza and Cole involved the CALJIC version of the provocation instruction for second
degree murder (CALJIC No. 8.73). (Cole, supra, at p. 1217; Souza, supra, at pp. 117-
118.) Nieto did not cite the Supreme Court precedent on this issue in his opening brief
and did not respond in his reply brief to the People’s argument on this point. He has
11
therefore provided no argument as to why or how the term “provocation” should be
treated differently in CALCRIM No. 522 or in the circumstances of this case. We are
bound by Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
In addition, in rejecting another component of the defendant’s challenge to
CALCRIM No. 522, Hernandez, held that provocation “was not used in a technical sense
peculiar to the law.” (Hernandez, supra, 183 Cal.App.4th at p. 1334.) Quoting a
dictionary, Hernandez explained that “[p]rovocation means ‘something that provokes,
arouses, or stimulates’; provoke means ‘to arouse to a feeling or action[;] . . . to incite to
anger.’” (Ibid.) As Hernandez explained, that definition of “provocation” comports with
its meaning in the law (ibid.), which our Supreme Court has explicated as follows: “The
evidentiary premise of a provocation defense is the defendant's emotional reaction to the
conduct of another, which emotion may negate a requisite mental state.” (People v. Ward
(2005) 36 Cal.4th 186, 215.) Given the common meanings of the terms “provocation”
and “provoke,” Hernandez concluded that “the jurors would have understood that
provocation (the arousal of emotion) can give rise to a rash, impulsive decision, and this
in turn shows no premeditation and deliberation.” (Hernandez, at p. 1334.)
Nieto argues that Hernandez, did not include any “discussion of the subjective
standard of provocation in the context of second degree murder and the objective
standard of provocation in the context of voluntary manslaughter based on heat of
passion.” The argument mischaracterizes Hernandez, which explained that provocation
12
sufficient for voluntary manslaughter is based on objective reasonableness and
provocation for second degree murder is based on a subjective state of mind.
(Hernandez, supra, 183 Cal.App.4th at p. 1332.) Thus, although Hernandez did not
mention that distinction in its analysis of whether the term “provocation” has a technical
legal meaning, the court was aware of the different standards for provocation when it
held that CALCRIM No. 522 uses the term “provocation” in a nontechnical manner.
We also reject Nieto’s attempt to distinguish Hernandez, on the ground that the
jury in Hernandez was not instructed with CALCRIM No. 570, which sets forth the
objective standard of provocation necessary to reduce murder to voluntary manslaughter.
As the court explained in Jones, CALCRIM No. 522 is not misleading when given along
with CALCRIM No. 570. (Jones, supra, 223 Cal.App.4th at p. 1001.) We agree with
Hernandez that provocation in CALCRIM No. 522 does not have a technical meaning
peculiar to the law (Hernandez, supra, 183 Cal.App.4th at p. 1334), even when given
along with CALCRIM No. 570, as it was here.
For all of these reasons, we conclude that the trial court did not err by failing to
clarify sua sponte the term “provocation” in CALCRIM No. 522, which has a common
meaning and not a technical meaning peculiar to the law.
C. Jury Question
Nieto argues that the trial court prejudicially erred by improperly answering a
question posed by the jury during deliberations. We conclude that the argument lacks
merit.
13
1. Relevant Proceedings
During deliberations, the jury sent the following note to the court: “Can we please
get clarification on Cal Crim 521 lines 3 through 5? [¶] Is it two separate theories?
[A]nd does it require both? [¶] [A]lso any clarification on the differences between 1st
degree [and] 2nd degree murder would be appreciated.” Outside the presence of the jury,
the trial judge explained to counsel that he interpreted the note as containing three
subparts and thus had drafted a written response to each of those subparts. The
prosecutor and defense counsel confirmed that they had read the court’s proposed
responses and that they agreed with the proposed answers. The court sent the written
response to the jury.
In response to the jury’s first question seeking clarification on lines three through
five of CALCRIM No. 521, the court wrote: “Based on your question, we cannot offer
clarification beyond what is contained in the 521 instruction itself.”2 Responding to the
second part of the jury’s question about the two theories of first degree murder, the court
wrote: “The defendant is being prosecuted under 2 theories of first degree murder. The
defendant cannot be found guilty of first degree murder unless all of you agree that the
people have proved all of the elements of one of those theories. However, you do not
need to all agree on the same theory. The theories are described, along with the elements
that must be proved beyond a reasonable doubt, in Calcrim 521.” In response to the
2 Lines three through five of CALCRIM No. 521 read: “The defendant has been
prosecuted for first degree murder under two theories: (1) the murder was willful,
deliberate, and premeditated and (2) the murder was committed while lying in wait or
immediately thereafter.”
14
jury’s final inquiry seeking clarification on the differences between first and second
degree murder, the court wrote: “The elements of, and differences between, first and
second degree murder are contained in Calcrims 520 and 521. Based on your question,
no further clarification can be provided at this time.”
After the court sent the response to the jury, defense counsel asked the court to
modify its response to the jury’s question about the differences between first and second
degree murder. Defense counsel suggested that CALCRIM No. 522 also responded to
the jury’s inquiry in that CALCRIM No. 522 provides that provocation may affect the
degree of murder. Defense counsel requested that the response be amended to inform the
jury that CALCRIM Nos. 520, 521, and 522 all provided “guidance on the difference
between first and second degree murder.” The court denied the request, explaining that
CALCRIM No. 522 was “beyond the purview of their question.” The judge expressed
concern that the suggested response might draw the jury’s attention “to an area where I
don’t know that their original question pondered.” The court expressly left open the
possibility of reconsidering the issue if the jury requested further clarification.
2. Standard of Review
Section 1138 provides, in pertinent part: “After the jury have retired for
deliberation, . . . if they desire to be informed on any point of law arising in the case, they
must require the officer to conduct them into court. Upon being brought into court, the
information required must be given in the presence of, or after notice to, the prosecuting
attorney, and the defendant or his counsel, or after they have been called.”
15
Section 1138 “imposes on the trial court a mandatory ‘duty to clear up any
instructional confusion expressed by the jury’” during deliberations. (People v. Lua
(2017) 10 Cal.App.5th 1004, 1016 (Lua).) “This does not mean the court must always
elaborate on the standard instructions. Where the original instructions are themselves full
and complete, the court has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury's request for information.” (People v.
Beardslee (1991) 53 Cal.3d 68, 97.) “‘When a question shows the jury has focused on a
particular issue, or is leaning in a certain direction, the court must not appear to be an
advocate, either endorsing or redirecting the jury’s inclination.’” (People v. Montero
(2007) 155 Cal.App.4th 1170, 1180 (Montero).) We apply “the abuse of discretion
standard of review to any decision by a trial court to instruct, or not to instruct, in its
exercise of its supervision over a deliberating jury.” (People v. Waidla (2000) 22 Cal.4th
690, 745-746; Lua, supra, at p. 1017.)
3. Analysis
As the People correctly observe, defense counsel expressly agreed to the court’s
response to the jury about the distinction between first and second degree murder. In
general “[w]hen the trial court responds to a question from a deliberating jury with a
generally correct and pertinent statement of the law, a party who believes the court’s
response should be modified or clarified must make a contemporaneous request to that
effect; failure to object to the trial court’s wording or to request clarification results in
forfeiture of the claim on appeal.” (People v. Dykes (2009) 46 Cal.4th 731, 802; People
16
v. Salazar (2016) 63 Cal.4th 214, 248; People v. Debose (2014) 59 Cal.4th 177, 207.)
Here, counsel initially agreed to the court’s response but soon thereafter requested that
the court modify its response. We need not decide whether the forfeiture rule applies in
these circumstances because we conclude that the trial court did not err.
The trial court did not abuse its discretion by refusing defense counsel’s request to
inform the jury that CALCRIM No. 522 provided additional guidance concerning the
distinction between first and second degree murder. The court answered the jury’s
question seeking “any clarification” on the differences between the degrees of murder by
directing the jury to the instructions that set forth the elements of first and second degree
murder. Nieto does not contend that those instructions were incorrect or incomplete
statements of the law. Moreover, nothing in the court’s answer precluded the jury from
considering the evidence of provocation in its continued deliberations.
The jury did not articulate any confusion about provocation as it related to murder
or otherwise, or about the distinction between manslaughter and murder. It was
reasonable under the circumstances for the court to conclude that directing the jury to the
provocation instruction might confuse the jury by unduly emphasizing the role of
provocation and possibly directing the jury to consider provocation in the context of
voluntary manslaughter. (See People v. Davis (1995) 10 Cal.4th 463, 522 [court
reasonably declined to instruct further on an issue about which the jury did not express
confusion].) The risk of confusing the jury was particularly high because defense counsel
never argued that Nieto was guilty of only second degree murder because he was
17
provoked. Rather, counsel argued that Nieto was guilty of only voluntary manslaughter
because he was provoked, a topic also addressed by CALCRIM No. 522. By directing
the jury to CALCRIM Nos. 520 and 521, the court’s answer responded directly to the
jury’s question by focusing the jury on the different elements necessary to convict Nieto
of first degree or second degree murder without improperly “‘either endorsing or
redirecting the jury’s inclination.’” (Montero, supra, 155 Cal.App.4th at p. 1180.)
Under these circumstances, we conclude that the trial court’s response to the jury’s
question seeking clarification on the degrees of murder adequately addressed the jury’s
question and was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
18