Filed 5/28/15 P. v. King CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C076545

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F08209)

         v.

JERRY LEE KING,

                   Defendant and Appellant.




         A jury found defendant Jerry Lee King guilty of first degree murder and found he
personally used and intentionally discharged a firearm, causing death. (Pen. Code,
§§ 187, 12022.53, subds. (b), (c), (d).) The trial court sentenced defendant to prison for
50 years to life and he timely appealed.
         On appeal, defendant contends the trial court prejudicially misinstructed the jury
regarding self-defense, provocation, and lying in wait. Disagreeing, we shall affirm.
                                                 BACKGROUND
         On December 9, 2012, defendant fatally shot his uncle, Willis Griffin, with a rifle.

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       The People’s theory was that defendant, who lived with his mother in a rural area,
had been asked to leave, and his mother enlisted Griffin to help evict him. He had
threatened to shoot Griffin the day before, and about a week before the killing threatened
to beat Griffin because he thought Griffin was seeing defendant’s ex-girlfriend. When
Griffin arrived at the residence on the day of the murder, defendant walked 75 feet from
the residence towards him and shot him through the heart from 10 feet away. After the
killing he had gunshot residue on his hand, hid the gun, and consistently denied shooting
Griffin until his trial testimony.
       The defense theory was that Griffin--larger than defendant, and a drug-user with a
violent past--arrived, asked if defendant was going to shoot him, then charged at
defendant, who did not know whether the rifle he held was loaded. Defendant brought
the rifle up and fired it accidentally. Defendant lied about the shooting because he was
afraid. The People argued defendant’s claims of accident or self-defense should be
rejected, because they were not raised until trial and also in part argued that defendant
lacked credibility because of his three prior felony convictions.
       At trial, defendant testified Griffin outweighed him by at least 50 pounds. The day
before the killing he overheard his mother talking to Griffin, who said he would get
defendant out of the house the next day, which made him feel bad and “tore [him] up
inside.” The next day defendant argued with his mother as she prepared to leave, and
threatened to stab the tires he had bought for her car. He fell asleep, woke up, and heard
Griffin’s motorcycle. He believed he was going to be kicked out. He armed himself
because he was afraid of Griffin, having seen him beat his mother’s ex-husband with a
baseball bat and “do some pretty mean things” to others. He added about Griffin that
“[w]hen he snaps, he snaps.” Defendant did not check to see if the rifle was loaded.
       Defendant testified that when Griffin stopped his motorcycle, he looked at
defendant--who was about 10 feet away, holding the rifle with one arm--and said “what
are you going to do, fucking shoot me[?]” As Griffin tried to put the kickstand down, he

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hit his leg, swore, dismounted from the bike, and started toward defendant. Defendant
described Griffin’s advance “Like a football tackle. Like he was going to tackle me.
Like he started to run at me.” Defendant then “pulled the gun up and it just went off.” It
was an accident. Defendant admitted hiding the gun, and lying to the 911 operator, the
police, and the media. He loved his uncle, who had practically raised him. Despite this
affection, he brought the rifle “because I thought if I had the gun in my hands that he
wouldn’t come after me physically. . . . That we could actually just argue this out and
then I wouldn’t have to leave.”
                                       DISCUSSION
                                              I
                                  Pretextual Self-Defense
       Defendant contends the trial court should not have instructed the jury on the
concept of pretextual self-defense. He concedes he did not object to this instruction in
the trial court, but contends we should review his claim for various reasons. We elect to
address the claim on the merits, and reject the claim of error.
       A. Background
       The trial court gave the pattern CALCRIM instructions on self-defense and
imperfect self-defense. These instructions required the jury, before returning a murder
verdict, to find that the People had proven beyond a reasonable doubt that defendant had
not acted to defend himself, whether defendant’s belief in the need to do so was
objectively reasonable or not. As to each defense, the jury was instructed to consider
defendant’s knowledge of Griffin’s prior threatening or harmful acts in evaluating
defendant’s belief. As to regular self-defense, the jury was instructed defendant could
stand his ground.
       The trial court also gave CALCRIM No. 3472, as follows: “A person does not
have the right to self-defense if he or she provokes a fight or quarrel with the intent to
create an excuse to use force.”

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       Defense counsel argued in part that because of Griffin’s size, violent past, and his
sudden lunge towards defendant, defendant actually believed in the need to employ
deadly force to defend himself. During rebuttal, the prosecutor argued, “A person
doesn’t have the right to self-defense if he provokes the fight or [acts] with an intent to
create an excuse to use force. Well, I’m going to go out there with this rifle, when Willis
sees it [and] says, what are you going to do, shoot me, then it’s going to be okay that I do.
That’s not the way the law works.”
       B. Analysis
       To illustrate the concept of pretextual self-defense, counsel cites an unforgettable
scene from Shane, where Jack Palance’s character--a highly experienced gunfighter--
goads Elisha Cook, Jr.’s character--an ordinary “sodbuster”--into reaching for his
revolver, whereupon Palance’s character shoots him down, having planned the entire
scenario to absolve himself of liability, because he did not draw first. But, Hollywood
notwithstanding--and regardless of whether the film correctly conveyed the extant law in
19th Century Wyoming--our Supreme Court has held that “[s]elf-defense is not available
as a plea to a defendant who has sought a quarrel with the design to force a deadly issue
and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for
killing.” (People v. Hecker (1895) 109 Cal. 451, 462.)
       Defendant contends “nothing remotely similar” happened in this case. We
disagree. The jury could plausibly find that defendant carried the rifle with him to goad
Griffin into making a threatening move. Defendant’s own testimony shows that after
Griffin saw the gun, he in effect scoffed at it, taunting defendant by asking if he was
going to “fucking shoot” Griffin. Then, when Griffin got off the motorcycle, according
to defendant, Griffin indeed rushed towards defendant, whereupon, in defendant’s
version, the rifle discharged as he brought it up defensively. The very fact he greeted his
uncle with a rifle in hand could be viewed by the jury as provocation by defendant,



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because the jury was free to disbelieve defendant’s testimony that he held the rifle in
order to ensure a peaceful dialogue with Griffin.
       Accordingly, contrary to defendant’s view, substantial evidence supported the
instruction, and therefore the trial court did not err in giving it to the jury.
       Moreover, the trial court instructed the jury that not all of the instructions were
applicable, depending on its findings about the facts of the case. The prosecutor
emphasized the trial court’s instruction that not all instructions would necessarily apply.
We presume the jury would follow the instructions and disregard the pretextual self-
defense instruction if it did not find the facts supported it. (See People v. Sanchez (2001)
26 Cal.4th 834, 852.) It did not, as defendant contends, impair the other self-defense
instructions, which required the People to disprove both the perfect and imperfect self-
defense theories. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1381 [construing
similar instruction, but rejecting claim that it “might have kept the jury from evaluating
[the] self-defense claim”].) This instruction did not negate or weaken those instructions,
nor did the prosecutor’s argument.
                                                II
                                          Provocation
       Defendant contends the trial court improperly failed to instruct on provocation as
it pertained to premeditation and deliberation, again proffering various reasons why the
lack of an objection in the trial court should be excused. We decline to excuse the failure
to object and find the claim forfeited.
       The trial court gave a voluntary manslaughter instruction (CALCRIM No. 570),
premised on a sudden quarrel or heat of passion. The instruction defined provocation and
required the People to prove beyond a reasonable doubt that defendant did not kill in the
heat of passion, and if they did not, the jury was instructed to find defendant not guilty of
murder. However, the jury was not instructed that provocation could also lessen a



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murder from first degree murder to second degree murder, by negating premeditation or
deliberation or both. (See, e.g., CALCRIM No. 522.)
       As for provocation and heat of passion, the prosecutor argued defendant provoked
Griffin, who was merely walking up the driveway with his motorcycle. Defendant’s act
of grabbing the rifle and confronting Griffin was not an objectively reasonable response
to anything Griffin did. Defense counsel argued defendant became afraid when Griffin
lunged at him suddenly, which qualified as a sudden quarrel for purposes of provocation.
       CALCRIM No. 522 or similar instructions on provocation as it may bear on the
questions of premeditation and deliberation are not necessary to the jury’s understanding
of the applicable law; such instructions merely “pinpoint” one fact--provocation--that
may be emphasized by the defense to parry the prosecution’s evidence about a
defendant’s intent, specifically, the mental states of premeditation and deliberation.
Accordingly, such instruction must be requested by the defense in the trial court. (See
People v. Rogers (2006) 39 Cal.4th 826, 877-880 [addressing CALJIC No. 8.73]; People
v. Middleton (1997) 52 Cal.App.4th 19, 28-33, disapproved on another point by People v.
Gonzalez (2003) 31 Cal.4th 745, 752-753, fn. 3.) Defendant cites no authority supporting
his proposition that if some provocation instructions are given, all provocation
instructions must be given. As we have just described, precedent holds that not all such
instructions are necessary for the jury to understand the case.
       Defendant points to an appellate decision holding such instruction is a pinpoint
instruction, People v. Lee (1994) 28 Cal.App.4th 1724, at pages 1732 to 1734, and urges
us not to follow it. But the opening brief does not address the holding of People v.
Rogers, supra, 39 Cal.4th 826, and we may not depart from Supreme Court precedent.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
       In the reply brief, defendant notes that Rogers and other cases interpreted CALJIC
No. 8.73, not CALCRIM No. 552. We see no material difference. Although CALCRIM
No. 552 addresses both murder and manslaughter and the different degrees of murder,

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whereas CALJIC No. 8.73 addresses only the latter, in this case, the jury was instructed
on the former via CALCRIM No. 570. The only principle of law it did not receive
instruction on was that provocation can affect the degree of murder, by negating
premeditation or deliberation, a pinpoint instruction that was not requested by the defense
in the trial court as required.
       Nor, on this record, can defendant bypass this procedural hurdle by invoking
ineffectiveness of trial counsel. Defendant’s trial counsel largely emphasized the
accident defense supported by defendant’s testimony. That was a rational tactical reason
for not quibbling about provocation. (See People v. Dennis (1998) 17 Cal.4th 468, 527
[“defense counsel reasonably could decide to forgo the [pinpoint] instruction for tactical
reasons”].)
                                             III
                                        Lying in Wait
       Defendant contends no substantial evidence supported a lying-in-wait instruction
and that the instruction that was given was incomplete. We disagree.
       The jury was instructed on premeditated murder and lying-in-wait murder, and the
People argued the evidence supported each theory. The prosecutor’s argument about
lying in wait made the point that it was the equivalent of premeditation and deliberation.
She emphasized that defendant had threatened to shoot Griffin the day before, but needed
to wait for a better opportunity, presumably when his mother was absent. When Griffin
arrived the next day, after defendant’s mother had left, defendant took the opportunity to
approach him with a rifle and take him unawares. Defense counsel argued there was no
lying in wait, or ambush, because defendant openly walked 75 feet from the residence
towards Griffin and shot him from 10 feet away.
       A. Sufficiency of the Evidence
       Defendant first contends that the record does not support a murder under a lying-
in-wait theory, because defendant did not shoot from cover. No such requirement inheres

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in the lying-in-wait doctrine. Instead, as the jury was instructed, “A person can conceal
his or her purpose even if the person killed is aware of the person’s physical presence.”
Indeed, defendant concedes that a traditional ambush is not required, and that acting
insidiously qualifies, pursuant to Supreme Court authority (see People v. Stevens (2007)
41 Cal.4th 182, 202 [lying-in-wait special circumstance]), as does an attack performed
“in a purposeful manner that required stealth and maneuvering to gain a position of
advantage over the” victim (People v. Mendoza (2011) 52 Cal.4th 1056, 1074).
       Although many cases cited by defendant to illustrate lying-in-wait murder involve
ambush from cover or attacks on sleeping victims, these cases do not limit the ambit of
lying-in-wait murder. The jury could find that defendant surprised his uncle by shooting
him as Griffin approached defendant to talk, unaware that defendant intended to shoot
him at close range instead of having a civil discussion. The fact that defendant was
armed would not necessarily alert Griffin to any danger, as even defendant claimed great
affection for his uncle. The jury could well find that defendant managed to get within
easily lethal range by concealing his murderous purpose.
       B. Instructional Claim
       Defendant claims the pattern first degree murder instruction, CALCRIM No. 521,
does not require the jury to find that the act of lying-in-wait is the means of the killing.
He posits we are likely to reject the claim based on precedent, but seeks to preserve it for
review in the Supreme Court.
       The pattern instruction as given in this case provided in relevant part:

               “The defendant is guilty of first degree murder if the People have proved
       that the defendant murdered while lying in wait or immediately thereafter. The
       defendant murdered by lying in wait if:

              “1. He concealed his purpose from the person killed;

              “2 He waited and watched for an opportunity to act;



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              “AND

              “3. Then, from a position of advantage, he intended to and did make a
       surprise attack on the person killed.

              “The lying in wait does not need to continue for any particular period of
       time, but its duration must be substantial enough to show a state of mind
       equivalent to deliberation or premeditation.

              “A person can conceal his or her purpose even if the person killed is aware
       of the person’s physical presence.”
       As indicated by the penultimate paragraph just quoted, a lying-in-wait finding
equates to a finding of deliberation or premeditation, as the prosecutor argued.
       Defendant focuses on the first quoted sentence, to the effect the “the defendant
murdered while lying in wait or immediately thereafter.” (Italics added.) He contends
the word “while” removes any necessary causal connection between his actions and the
killing and supplants it with a purely temporal one.
       “In reviewing claims of instructional error, we look to whether the defendant has
shown a reasonable likelihood that the jury, considering the instruction complained of in
the context of the instructions as a whole and not in isolation, understood that instruction
in a manner that violated his constitutional rights. [Citations.] We interpret the
instructions so as to support the judgment if they are reasonably susceptible to such
interpretation, and we presume jurors can understand and correlate all instructions
given.” (People v. Vang (2009) 171 Cal.App.4th 1120, 1129; cf. People v. Speegle
(1997) 53 Cal.App.4th 1405, 1413 [noting counsel was “[e]ngaging in the proscribed
hypertechnical parsing of instructions [citations] rather than determining the reasonably
likely interpretation given them by reasonable jurors”].)
       Although the beginning of the instruction refers to a killing “while” lying in wait
or immediately thereafter, the instruction then lists three elements that must be proven
beyond a reasonable doubt to establish such a killing: that the defendant (1) “concealed



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his purpose,” (2) “waited and watched for an opportunity to act,” and (3) “from a position
of advantage . . . intended to and did make a surprise attack on the person killed.”
       We agree with the People that these elements in combination, and in particular the
third element, require that the act of lying in wait must be the mechanism by which the
killing is achieved, that is, it must cause the killing. The defendant must intend to and
“make a surprise attack on the person killed.” (Italics added.) This requires that the
defendant’s actions of concealment of person or purpose or both affect the killing. The
instruction does not permit a jury to find a lying-in-wait murder simply because a
defendant concealed himself or his purpose at some point prior to or during the
commission of the killing. Thus a mere temporal connection between the defendant’s
actions and the killing will not suffice to prove lying in wait under the pattern instruction.
                                       DISPOSITION
       The judgment is affirmed.



                                                         DUARTE                , J.



We concur:



      RAYE                   , P. J.



      HOCH                   , J.




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