Filed 4/8/14 P. v. Ramirez CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A137379
v.
RODRIGO R. RAMIREZ,                                                      (Alameda County
                                                                         Super. Ct. No. 166571)
         Defendant and Appellant.

In re RODRIGO R. RAMIREZ
                                                                         A140245
         on Habeas Corpus.


         A jury convicted defendant of first degree murder. (Pen. Code, § 187.) He is
serving 25 years to life in prison. At trial, the defense conceded that defendant killed a
girl he hired for sex but claimed he killed her in the actual, though unreasonable, belief in
the need to defend himself from death or great bodily injury after she tried to rob him.
Defendant appeals his conviction on several grounds. He claims that (1) the trial court
erred in excluding cell phone text messages about the victim or her boyfriend wanting to
rob a prior client and that defense counsel rendered ineffective assistance of counsel in
failing to raise all possible grounds for admission of the text messages; (2) the court erred
in failing to instruct the jury on a heat of passion theory of voluntary manslaughter; and
(3) there is insufficient evidence of premeditation and deliberation to support the jury’s
verdict of first degree murder.
         Defendant also filed a petition for a writ of habeas corpus, which we have
consolidated with the appeal. In his petition, defendant reiterates and expands upon his


                                                             1
claim of ineffective assistance of counsel. Defendant also asserts that the prosecutor
misrepresented facts concerning the text messages sought to be introduced in evidence.
       We shall affirm the judgment and deny the petition for a writ of habeas corpus.
                                    Statement of Facts
       It is undisputed that defendant hired a girl for sex, choked her to death, and
dumped her body on the street. The dispute at trial was why defendant killed her and,
more specifically, his state of mind at the time.
       On March 31, 2009, Tamara Thompson was 17 years old and working as a
prostitute. Around 3:00 a.m. that day, her body was found “lying in the gutter” near
Webster and 37th Streets in Oakland. The couple who found her had passed the
intersection earlier and saw nothing unusual but discovered her body on the street near
the curb when they returned to the area about 15 minutes later. Her fully clothed body
was still warm when it was discovered. The couple called 911 and tried to resuscitate
Thompson, without success.
The Autopsy
       A pathologist testified that the cause of death was asphyxia due to strangulation.
The pathologist said Thompson’s jugular veins in her neck had been compressed,
preventing recirculation of oxygen-depleted blood from her brain, as evidenced by
redness in her face and ruptured blood vessels in her eyes, known as petechial
hemorrhaging. He noted hemorrhaging around the larynx and that the hyoid bone was
dislocated, indicating “pressure was applied in a forceful manner” that reached “deep in
the neck.” The pathologist estimated that strangulation by occlusion of Thompson’s
jugular veins led to unconsciousness in 15 to 20 seconds, petechial hemorrhaging in 45 to
60 seconds, and death sometime thereafter. Thompson’s neck showed no finger imprints,
suggesting that she was strangled by an arm around the neck or some means other than
manual strangulation.
       The pathologist testified that Thompson suffered a rectal injury while alive.
“[S]omething . . . penetrated her through the anus” and caused several “jagged”
lacerations in the rectum, four inches from the anal opening, that caused bleeding. The


                                              2
pathologist said something that “may have had a sharp edge to it” “was pushed in there
that actually scraped and lacerated the inside of the rectum.” He testified that a fingernail
could have made the rectal lacerations. The pathologist observed “a lot of blood” on the
sheet under Thompson’s buttocks at the time of the autopsy and, while she had been
menstruating at the time of her death, thought the amount of blood was too much to be
attributed to menstruation alone. He noted that rectal lacerations “are generally very
bloody, very hemorrhagic.” Ultimately, the pathologist concluded the blood came from
“a combination of the lacerations of the rectum and probably also from menstruation.”
       The autopsy also revealed a small bruise at the opening of the vagina. The bruising
was consistent with sexual assault but also consistent with consensual intercourse or
something striking the area. The pathologist took swabs of the mouth, vagina, rectum,
breasts, neck and other areas of the body for the purpose of finding “whether the
perpetrator of this homicide left any DNA behind or any other materials from his own
body that could be found on her.” The pathologist also collected fingernail clippings
because “if one is being attacked, the victim may scrape the skin of the perpetrator, and
we may then find his skin underneath those fingernails particularly the DNA.”
The DNA Evidence
       A criminalist examined the biological material collected during the autopsy. The
criminalist found male saliva on the breast swab and created a DNA profile from the
saliva. The criminalist also found male DNA in the fingernail clippings that was
consistent with the DNA extracted from the breast swab. In May 2009, the DNA profile
was entered into the Combined DNA Index System (CODIS), which is a computer
database used to find matching DNA profiles. A year later, in May 2010, defendant was
identified as a match for the biological material taken from Thompson’s body.1




1
 A CODIS search in May 2009 was unsuccessful. A year later, CODIS produced a match
after defendant’s DNA was collected upon his arrest on another charge. This information
was not disclosed to the jury.


                                              3
Defendant’s Police Interview
        Two homicide investigators interviewed defendant at an Oakland police station in
June 2010. The interview was conducted mostly in Spanish as defendant said he was
more comfortable speaking Spanish than English. The interview was recorded and
translated. A transcript, with some redactions, was admitted into evidence. The interview
lasted approximately three hours, 20 minutes. The transcript is 136 pages.
        At the start of the interview, the police told defendant they were investigating a
homicide. Defendant asked no questions about the victim or circumstances of the
homicide. The police asked if defendant wanted to talk to them and defendant said “Yes,
sure, I have nothing to hide.” After some preliminary questions, the police asked
defendant, who lived in Campbell, if he ever had been to Oakland. Defendant said he
came to Oakland once, around April 2009, to “hire[] the services of a girl” for sex. He
said he had sex with the girl at a motel, gave her a ride in his car to a gas station two
blocks away, and was home by midnight. His description of the prostitute’s race, age and
hair color varied. She was first described as a White girl in a blond wig, then as a Black
girl in a red wig. Defendant said the “girl” was about 20 years old then said she was “a
grande older woman” between the ages of 39 and 40. The police showed defendant a
photograph of Thompson, who was a young African-American, and defendant said she
was not the prostitute he hired. Defendant said the girl in the photograph looked about 20
years old and was “too young” to be the woman he hired, who was age 39 to 40. When
questioned further, defendant said the depicted girl “might be her.”
        In his initial description of the motel encounter, defendant said he and the
prostitute undressed, he kissed her breasts, legs, arms and vagina, and had intercourse
using a condom. The police asked defendant if he had a fight with the prostitute and he
said “no, no, no.” Defendant said if he had done something wrong, he would have gone to
Mexico.2



2
    Defendant is an undocumented immigrant from Mexico.


                                              4
         The police asked defendant if he would recognize the motel and defendant said “I
think so.” The police drove with defendant around Oakland and defendant identified the
Chaparral Motel at San Pablo and 54th Street. The men drove past where Thompson’s
body was dumped and an officer observed that defendant “looked over” at the area. They
returned to the police station and resumed the interview.
         The police told defendant the prostitute he hired is dead and that he was the only
person who could have hurt her. A police officer asked defendant why he killed her and
suggested possible reasons, saying “I don’t know if she tried to rob you. I don’t know if
she tried to do something to you. I don’t know if she did something bad with you but
something went wrong, she’s dead, your fingerprints and everything is on her . . . .” An
officer told defendant the victim’s cell phone signal was tracked to within blocks of his
house on the day she died. Defendant denied killing her. He explained the cell phone
signal by saying he found a cell phone under his car seat about a week after he hired the
prostitute but did not relate it to her until he was questioned about it. He kept the phone
and added it to his account. The officer asked defendant to explain how his DNA was
under the victim’s fingernails, and defendant said he was with a prostitute but did not kill
her.
         Defendant said he had no motive to kill the woman and the officer said killing
without a motive was “scarier” than killing with one, and asked defendant: “Are you a
psychopath? Are you crazy then?” The officer said he did not think defendant was a
“psycho” and believed “something happened.” Each of the two officers asked defendant
if the prostitute tried to rob him, and one of them also asked “Was she hurting you? I
know that girls do really bad things.” Defendant replied: “She didn’t do anything to me,
we just had sex . . . . I went out, I gave her a ride, and I left, that’s all I did.”
         Defendant repeatedly denied killing Thompson as the police detailed the evidence
against him, including the fact that her cell phone signal was tracked from where she was
found dead in Oakland to defendant’s neighborhood in Campbell.3 The police had been

3
    Cell phone tracking information was presented at trial.


                                                 5
interviewing defendant for over two hours when an officer told defendant: “we know that
you did that to her, the only thing we want to know is what happened in that moment?
Maybe you were drunk, maybe she wanted to rob you, or something happened with this
lady and . . . you know something? I’ve spoken with many people like you who are in the
same position you are, sitting on the same chair. For having a sane brain and heart, you
must let it come out, do you understand?”
       It was at this point, an officer testified, that defendant sighed, slumped forward,
and changed his story. Defendant said, “She wanted to kill me with a knife.” When asked
to explain defendant said, “Can I have 5 minutes to calm down?” The police provided a
few minutes for defendant to smoke a cigarette and compose himself.
       When the interview resumed, defendant admitted killing Thompson and said he
acted in self-defense. Defendant said they came to the motel and Thompson showered,
during which time he locked the door, undressed and lay in bed. Thompson finished
showering, demanded and received payment, then joined defendant in bed. Defendant
started kissing Thompson’s body when he heard a loud knock on the door. Defendant
said Thompson yelled out “come in here. It’s open.” Defendant pushed Thompson aside
and looked out the window. Two “Black, big guys” were standing outside the door. They
yelled, “Open the door or die.” When describing the scene, defendant made a hand
gesture indicating a gun. Just then, two police patrol cars passed on the street and the men
turned and left in a white car, “maybe a Lexus with really big rims.”
       Defendant said he turned back toward the room and Thompson jumped on him
and hung on his neck. Defendant pushed her away. Thompson took out “[a] small knife,
maybe 2 or 3 inches” long from her purse and swung it at him. She cut him but the cut
was “very slight” “wasn’t that bad” and “wasn’t a serious injury.” Defendant “gripped
her neck and she began to struggle.” He said, “I wasn’t aware of the strength I was
applying.” Defendant said he was “angry,” “scared” and “wanted to defend [him]self.”
He said: “she wanted to kill me, they wanted to hurt me, they wanted to rob me, I don’t
know, I was scared.” When Thompson stopped moving, defendant dressed her and “put
her all in order [so as] not to leave anything in the hotel.” He carried her one or two


                                              6
blocks to his car, then drove a few blocks and pushed her out of the car onto the street.
He dumped the body because he “wanted to hide things.” He did not call the police
because he has “no documents” for legal residency.
       Defendant denied having sex with Thompson, saying “[t]here was no time.” He
said he flushed the condom Thompson gave him down the motel toilet to “g[e]t rid” of
“that evidence” because “she touched it.” The police officers challenged defendant’s
claim of self-defense, remarking that he was a strong man, nicknamed Bear, weighing
over 200 pounds and Thompson was a naked girl weighing just over 100 pounds.4
Defendant insisted: “I had to kill her. If I hadn’t killed her, she would have killed me.”
Closing arguments, jury verdict and sentencing
       No claim of self-defense was made at trial. Defendant claimed imperfect self-
defense, with his attorney arguing to the jury that defendant had an actual, though
unreasonable, belief in the need to defend himself from an imminent threat of death or
great bodily injury. Defendant asked for a verdict of voluntary manslaughter. The
prosecution argued that defendant was guilty of premeditated murder. The prosecution
argued that defendant fabricated the attempted robbery and knife attack to hide a
deliberate murder that was likely linked to a sexual assault of Thompson. The prosecutor
noted that defendant denied having sex with Thompson, but the autopsy showed she had
vaginal and rectal injuries and the latter injury produced a lot of blood and, thus, must
have occurred after defendant hired her for sex. In arguing that defendant had sufficient
time to premeditate, the prosecutor maintained that defendant could have stopped
choking Thompson when she lost consciousness but, instead, made a decision “to finish
the job.”
       The jury returned a verdict of first degree murder. The court sentenced defendant
to prison for an indeterminate term of 25 years to life. Defendant timely filed a notice of
appeal and petitioned for a writ of habeas corpus.

4
  Evidence at trial established that Thompson was five feet two inches tall and weighed
114 pounds. Defendant was five feet seven inches tall and weighed 224 pounds at the
time of trial.


                                              7
                                        Discussion
I. Any error in denying defendant’s motion to reopen the case to admit text messages into
evidence was harmless.
       Defendant unsuccessfully sought admission of certain text messages sent and
received by Thompson’s cell phone. On appeal, defendant contends the court erred in
excluding the messages as hearsay and lacking foundation or, alternatively, that defense
counsel rendered ineffective assistance of counsel in failing to establish a proper basis for
admission of the text messages. In his habeas petition, defendant claims the prosecutor
failed to correct materially false information about the text messages when admissibility
was being argued to the court.
       The text messages at issue were sent and received by Thompson’s cell phone in
the days surrounding her death in March 2009. The police obtained the text messages
during their investigation, along with other cell phone records, including subscriber
information, call logs, and signal location data. At trial, the prosecution marked all these
cell phone records for identification, referred to their existence during opening statement,
provided witness testimony concerning their preparation, and gave copies of them to the
jury in an exhibit binder. After the close of testimony, all cell phone records were
admitted with the exception of the text messages, which were withdrawn by the
prosecutor. The contents of the voluminous text messages were reproduced in the jury
exhibit binder during the presentation of evidence, but no text message was read to the
jury. The text messages were removed from the exhibit binder after the prosecution
chose, at the close of evidence, not to seek their admission.
       Defense counsel filed a “Motion to Allow the Defense to Re-open their Case”
seeking introduction of several of the text messages. Defense counsel said the texts were
exchanged between Thompson and her pimp or someone “assisting the victim in her
business, prostitution” and revealed a prior client robbery attempt corroborative of
defendant’s claim that Thompson tried to rob him. The prosecution objected to admission
on hearsay grounds. The defense countered that the texts were admissible to prove the




                                              8
declarant’s state of mind. The court denied the motion, finding the proffered evidence
inadmissible because it lacked foundation and was hearsay.
       The texts sought to be admitted were exchanged between Thompson’s phone and
another phone on the morning of March 29, 2009, two days before Thompson was killed.
In his petition for habeas corpus, defendant has submitted documents establishing that the
other phone belonged to Raymond Marshall, Thompson’s boyfriend. The petition
includes a document showing that Marshall was interviewed by the police and, while
denying being a pimp, admitted “serving as a lookout” for Thompson “while she worked
the streets.” The text messages sought to be introduced are set out here in full, without
grammatical correction, and identify the time of the call and the phone’s registered
subscriber:
    6:02 a.m.,5 Marshall: “I sent you a text dat said i need u parked outside cause this
    nigha got more money and i want to rob him i need u parked outside and u want to
    get mad”
    6:03 a.m., Marshall: “I seen dis nigha money”
    6:04 a.m., Thompson: “Gig”
    6:05 a.m., Thompson: “Im outside”
    6:05 a.m., Marshall: “Wat the fuck that mean”
    6:07 a.m., Thompson: “Im outside”
    6:07 a.m., Marshall: “K”
    6:11 a.m., Marshall: “Im bout to come out this nigha done took his pants with him in
    the shower I got 80 im bout to cut Pimp or die”6
       In defense counsel’s motion to reopen the case to admit this evidence, counsel
argued that the texts showed Thompson’s pimp wanted to rob one of her clients and


5
 The cell phone records use the Central Time Zone. The times stated here have been
converted to the Pacific Time Zone.
6
 The words “Pimp or die” appear at the end of multiple texts sent from Marshall’s
phone. Defendant suggests that the words are an “automatic signature,” but the words do
not appear on every text.


                                             9
Thompson assisted him by telling him she was outside the room. On appeal, defendant’s
appellate counsel suggests that Thompson and her pimp boyfriend, Marshall, temporarily
switched phones, and that Thompson (using Marshall’s phone), proposed the robbery of a
client and it was her boyfriend who was outside.7 Defendant, however, states that whether
Thompson and her boyfriend switched phones is “not a determining factor in the case,”
claiming the texts admissible “no matter who instigated the texts.” Defendant asserts that
the trial court abused its discretion in denying the motion to reopen the case to admit the
texts and deprived him of his due process right to present evidence.
       “The decision to reopen a criminal matter to permit the introduction of additional
evidence is a matter left to the broad discretion of the trial court.” (People v. Jones (2012)
54 Cal.4th 1, 66.) “In determining whether a trial court has abused its discretion in
denying a defense request to reopen, the reviewing court considers the following factors:
‘(1) the stage the proceedings had reached when the motion was made; (2) the
defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect
that the jury would accord the new evidence undue emphasis; and (4) the significance of
the evidence.’ ” (People v. Jones (2003) 30 Cal.4th 1084, 1110.)
       The fourth factor, the significance of the evidence, was the trial court’s focus of
attention. The court found the proffered evidence inadmissible because it lacked
foundation and was hearsay, noting that the texts were exchanged between Thompson’s
phone and another phone belonging to an “unknown party.” Defendant has presented
police affidavits and investigative materials with his writ petition showing Marshall,
Thompson’s boyfriend, to be that party. Defendant faults the prosecutor and defense
counsel, who possessed these documents, for failing to inform the court that the pimp’s
identity was known. Defendant also argues that defense counsel was ineffective in failing

7
  In support of this theory, defendant notes that a text from Thompson’s phone to
Marshall’s phone on the night of March 27 said “Ma battery is low” and on the morning
of March 29, minutes before the above text exchange, a text from Thompson’s phone to
Marshall’s phone said “Bring ma phne.” Defendant also supports the argument by
reasoning that “it seems clear that Thompson — as the prostitute — would be the one
who was in the room with the client.”


                                             10
to present all meritorious arguments for admission of the text messages. Counsel argued
that the texts were admissible to show declarant’s state of mind, specifically Thompson’s
intention to rob a client on a prior occasion. (Evid. Code, § 1250.) Defendant claims
counsel should also have argued the texts were admissible as nonhearsay conduct or, if
hearsay, admissible as a statement against penal interest. (Evid. Code, § 1230.)
       Despite the foundational weakness in the evidence, we will assume the texts were
admissible, either for the reason presented to the trial court or for reasons that should
have been presented. Nevertheless, reversal is not warranted because defendant has failed
to establish prejudice. It is not reasonably probable that a result more favorable to
defendant would have been reached had the texts been received in evidence. (People v.
Watson (1956) 46 Cal.2d 818, 836.)8
       As an initial matter, it is not clear who instigated the plan discussed in the
exchange of text messages. Defendant argued in the trial court that Marshall wrote a text
to Thompson on his phone saying “i want to rob him.” On appeal, defendant argues that
Thompson wrote that text after borrowing Marshall’s phone. Defendant’s conflicting
interpretations of the texts reflect an inherent ambiguity as to the identity of the writers,
minimizing the significance of the texts. If Marshall, writing from his phone, told
Thompson he wanted to rob a man and needed her parked outside, the prospective victim
was not necessarily one of Thompson’s clients and Thompson may not have been
complicit in the plan. Even if we assume, as does defendant on appeal, that Thompson
wrote the robbery text on a phone she borrowed from Marshall, the theft that was
contemplated, picking the pocket of her prostitution client, is very different from the


8
  At oral argument, defendant’s counsel emphasized that printouts of the text messages
had been included in the jurors’ exhibit binders during the course of trial. However, these
pages were a small portion of the voluminous exhibits included in the binders, no specific
attention was directed to those pages during the course of trial, and the jury was
instructed to consider only those exhibits that were received in evidence. Thus, there is no
reason to assume that jurors read or observed those pages. And if any juror did so, on
defendant’s view of the significance of the text messages, this could only have benefitted
defendant’s case.

                                              11
armed attack defendant described to the police and would have provided limited
corroboration of defendant’s account of his encounter with Thompson.
       Moreover, introduction of evidence impugning Thompson’s character and
suggesting her complicity in prior thefts risked introduction of evidence of defendant’s
character for violence. (Evid. Code, § 1103.) Defendant has a prior conviction for
threatening his girlfriend with death or great bodily injury. (Pen. Code, § 422.)
Defendant’s criminal record was not disclosed to the jury but could have been had
defendant reopened the case to adduce evidence of Thompson’s alleged involvement in
prior crimes.
       Even if the texts had been admitted and credited by the jury as showing a prior
thievery attempt, it is highly unlikely that this evidence would have altered the conclusion
that the jury reached based on the strong evidence of defendant’s guilt. Defendant’s
account of an armed robbery had critical weaknesses. There was a glaring discrepancy
between his claim that the attempted robbery left him no time for sex with Thompson and
the autopsy evidence showing that Thompson had rectal and vaginal injuries inflicted
shortly before death. His explanation that he discarded the condom he received from
Thompson simply because she touched it strains credulity, especially in light of his
earlier explanation to the police that he had discarded the used condom. Defendant’s
conduct in taking time to dress Thompson’s dead body and carry her from the room is
inconsistent with his claim that Thompson had robbery cohorts whose return he
presumably would have feared. Finally, the manner of killing indicates force in excess of
any he would have believed necessary to defend himself from Thompson. Thompson was
a naked girl weighing just over 100 pounds with “[a] small knife, maybe 2 or 3 inches”
long. Defendant was twice her weight and, with a strong grip of her neck, quickly
rendered her unconscious. The autopsy evidence showed that defendant continued to
strangle her after she lost consciousness, resulting in her death. Defendant’s claim that he
killed Thompson with the belief that he needed to defend himself falters on the physical
evidence that he applied force beyond the amount necessary to neutralize any perceived



                                             12
threat. The court’s denial of the motion to reopen the case to admit the text messages was
harmless.
II. The trial court had no duty to instruct the jury on a theory of heat of passion voluntary
manslaughter, and trial counsel was not ineffective in failing to request an instruction,
because there was insufficient evidence to support the theory.
       The trial court instructed the jury on first and second degree murder and the lesser
included offense of voluntary manslaughter under a theory of imperfect self-defense.
(CALJIC Nos. 5.17, 8.10-8.11, 8.20, 8.30, 8.31, 8.40, 8.50, 8.70-8.73.) Defendant
contends the trial court erred in failing to instruct the jury, sua sponte, on the heat of
passion theory of voluntary manslaughter. (CALJIC No. 8.42.) Alternatively, defendant
contends trial counsel was ineffective in failing to request the instruction.9
       “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) That obligation
includes “ ‘giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present’ ” and
there is substantial evidence to support the lesser included offense. (Ibid.) “In a homicide
case, the trial court has a sua sponte duty to instruct on voluntary manslaughter as a lesser
included offense of murder whenever there is evidence from which a reasonable jury
could conclude that a manslaughter, but not a murder, was committed. [Citation.] This
duty includes instruction on voluntary manslaughter due to a sudden quarrel or heat of
passion when there is substantial evidence that shows such a theory is relevant.” (People
v. Thomas (2013) 218 Cal.App.4th 630, 643.) Moreover, “[h]eat of passion manslaughter
is a lesser included offense of murder . . . because it negates the element of malice” and
thus, where provocation is properly presented in a murder case, the failure to instruct the



9
  Jury instructions were discussed off the record, but it does not appear that trial counsel
requested a heat of passion voluntary manslaughter instruction. During closing argument,
defense counsel conceded that the heat of passion theory of voluntary manslaughter did
not apply to the case.


                                               13
jury on heat of passion relieves the prosecution of proving each element of murder and
violates the defendant’s federal due process rights. (Id. at p. 644, italics omitted.)
       The evidence here did not support a heat of passion instruction and thus there was
no error. “A heat of passion theory of manslaughter has both an objective and a
subjective component.” (People v. Moye (2009) 47 Cal.4th 537, 549.) “ ‘ “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.’ ” ’ ” (Ibid.) “The
provocative conduct by the victim may be physical or verbal, but the conduct must be
sufficiently provocative that it would cause an ordinary person of average disposition to
act rashly or without due deliberation and reflection.” (Ibid.) “To satisfy the subjective
element of this form of voluntary manslaughter, the accused must be shown to have
killed while under ‘the actual influence of a strong passion’ induced by such provocation.
[Citation.] “ ‘Heat of passion arises when “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.” ’ ” (Id. at p. 550.)
       There is evidence supporting the objective component of the heat of passion
theory of voluntary manslaughter. Defendant’s police statement provided that evidence
and, although self-serving, was entitled to consideration by the jury. (People v. Thomas,
supra, 218 Cal.App.4th at p. 645.) “In deciding whether there is substantial evidence of a
lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury.”
(People v. Breverman, supra, 19 Cal.4th at p. 162.) Defendant claimed Thompson
attacked him with a knife shortly after two of her accomplices came to the door of the
room with a gun in an apparent robbery attempt. The Attorney General denies that there
was sufficient evidence of provocation, noting defendant’s greater size and strength, the
admittedly slight injury produced by the small knife, and the quick departure of
Thompson’s accomplices. It is also noteworthy that defendant did not present a claim of
self-defense at trial but claimed only imperfect self-defense, which suggests a recognition
that Thompson’s conduct, viewed objectively, did not place defendant in imminent


                                              14
danger. Nevertheless, we believe that defendant’s police statement describing an armed
attack was sufficient evidence of provocation under the objective component of heat of
passion manslaughter to warrant the jury’s consideration.
       There was not, however, evidence supporting the subjective component of the
offense. For heat of passion voluntary manslaughter to apply, a defendant must “actually
be motivated by passion in committing the killing.” (People v. Beltran (2013) 56 Cal.4th
935, 951.) “This passion must be a ‘ “ ‘ “[v]iolent, intense, high-wrought or enthusiastic
emotion” ’ ” ’ ” (id. at p. 950) that obscures defendant’s reason and causes him “ ‘ “to act
rashly or without due deliberation and reflection, and from this passion rather than from
judgment” ’ ” (People v. Breverman, supra, 19 Cal.4th at p. 163). “[C]ase law and the
relevant jury instructions make clear the extreme intensity of the heat of passion required
to reduce a murder to manslaughter.” (Beltran, supra, at p. 950.)
       The evidence does not show that defendant acted rashly under the throes of intense
emotion that obscured his reason. Defendant told the police he acted in self-defense and
described deliberate conduct in responding to Thompson’s knife attack and covering up
the killing. He disarmed her, choked her until she stopped moving, flushed the condom
she gave him down the motel toilet to “g[e]t rid” of “that evidence” because “she touched
it,” dressed her, “put her all in order [so as] not to leave anything in the hotel,” carried her
one or two blocks to his car, then drove some distance from the hotel and pushed her out
of the car onto the street. He dumped the body because he “wanted to hide things.”
Defendant described his mental state during the attack as being “angry,” “scared” and
“want[ing] to defend myself.” Defendant told the police: “I had to kill her. If I hadn’t
killed her, she would have killed me.”
       A defendant’s anger or fear does not necessarily constitute grounds for instructing
the jury on heat of passion voluntary manslaughter. “[T]he anger or other passion must be
so strong that the defendant’s reaction bypassed his thought process to such an extent that
judgment could not and did not intervene.” (People v. Beltran, supra, 56 Cal.4th at
p. 949.) Nor does a claim of self-defense or imperfect self-defense, where the defendant
claims he was attacked and feared for his life, necessarily warrant instruction on heat of


                                              15
passion. (People v. Moye, supra, 47 Cal.4th at p. 555.) A heat of passion instruction is
warranted where the defendant claiming self-defense presents evidence that he panicked
and acted in a chaotic, unthinking response to the perceived threat. (People v. Breverman,
supra, 19 Cal.4th at pp. 163-164.) An instruction is not warranted where the evidence
shows the defendant acted deliberately to defend himself from the attack. (Moye, supra,
at p. 555.) “[N]o principle of law” requires a trial court “to disregard the evidence in
order to find that the jury should consider whether defendant subjectively killed in the
heat of passion, when no substantial evidence supported that theory of manslaughter, and
the evidence actually introduced on the point - the defendant’s own testimony - was to
the contrary.” (Id. at p. 554.) The core of defendant’s police statement was deliberate
self-defense. There was insubstantial evidence that defendant subjectively killed under
the heat of passion. Since there was insufficient evidence of heat of passion, the trial
court had no duty to instruct the jury on that theory of voluntary manslaughter. For the
same reason, trial counsel was not ineffective in failing to request an instruction.
       Moreover, any error in failing to request or administer a jury instruction on heat of
passion voluntary manslaughter was harmless beyond a reasonable doubt. “Error in
failing to instruct the jury on a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the omitted instructions adversely to
defendant under other properly given instructions.” (People v. Lewis (2001) 25 Cal.4th
610, 646.) The instructions here were unlike the instructions administered in People v.
Thomas, supra, 218 Cal.App.4th at page 645 that were “bereft of any indication that the
jury could consider [defendant’s] emotional excitement as a factor that could reduce his
criminal culpability” by negating malice. While the court here, as in Thomas, supra, at
pages 643-644, did not instruct the jury with a heat of passion voluntary manslaughter
instruction (CALJIC Nos. 8.42, 570), the court did, unlike Thomas, instruct the jury on
the general impact of heat of passion and provocation on the element of malice and
degrees of murder. The court instructed the jury: “If you find that the killing was
preceded and accompanied by a clear, deliberate intent on the part of the defendant to
kill, which was the result of deliberation and premeditation, so that it must have been


                                             16
formed upon pre-existing reflection and not under a sudden heat of passion or other
condition precluding the idea of deliberation, it is murder of the first degree.” (CALJIC
No. 8.20.) The jury was further instructed: “If the evidence establishes that there was
provocation which played a part in inducing an unlawful killing of a human being, but the
provocation was not sufficient to reduce the homicide to manslaughter, you should
consider the provocation for the bearing it may have on whether the defendant killed with
or without deliberation and premeditation.” (CALJIC No. 8.73.) Unlike Thomas, the jury
here found defendant guilty of first degree, not second degree, murder. (Thomas, supra,
at p. 641.) In finding defendant guilty of first degree murder, “the jury necessarily found
defendant premeditated and deliberated the killing. This state of mind, involving planning
and deliberate action, is manifestly inconsistent with having acted under the heat of
passion . . . .” (People v. Wharton (1991) 53 Cal.3d 522, 572.) In view of these
instructions, and considering the factual determinations made by the jury in reaching a
verdict of first degree murder, we conclude the jury would have returned the same verdict
of first degree murder even if the heat of passion voluntary manslaughter instruction had
been given. Accordingly, even if we assume the trial court erred in instructing the jury,
any error was harmless.
III. There is substantial evidence of premeditation and deliberation sufficient to support
the jury’s finding of first degree murder.
       Defendant claims the evidence presented is insufficient to establish premeditation
and deliberation necessary for a first degree murder conviction. “In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] The federal standard of review is to the same effect: Under principles of
federal due process, review for sufficiency of evidence entails not the determination
whether the reviewing court itself believes the evidence at trial establishes guilt beyond a
reasonable doubt, but, instead, whether, after viewing the evidence in the light most


                                             17
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is
the same in cases in which the prosecution relies mainly on circumstantial evidence.
[Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court[,] which must be
convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.” ’ ” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
       “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.]
However, the requisite reflection need not span a specific or extended period of time.
‘ “ ‘Thoughts may follow each other with great rapidity and cold, calculated judgment
may be arrived at quickly . . . .’ ” ’ ” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
“ ‘ “ ‘Premeditation and deliberation can occur in a brief interval. ‘The test is not time,
but reflection.’ ” ’ ” (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) “Appellate
courts typically rely on three kinds of evidence in resolving the question raised here:
motive, planning activity, and manner of killing. [Citations.] These factors need not be
present in any particular combination to find substantial evidence of premeditation and
deliberation.” (Stitely, supra, 35 Cal.4th at p. 543.)
       There is little evidence of motive and planning activity. The Attorney General
notes that Thompson suffered injuries to her vagina and rectum and argues that the
evidence points to a planned sexual assault and cover-up. A sexual assault provides some
evidence of motive as a jury may infer defendant killed the victim to avoid detection and
punishment. (People v. Proctor (1992) 4 Cal.4th 499, 529.)
       The strongest evidence here, however, is the deliberate manner of killing.
Defendant killed Thompson by strangling her, with his arm wrapped around her neck.
The pathologist noted bleeding around the larynx and a dislocated hyoid bone, indicating


                                               18
“pressure applied in a forceful manner” that reached “deep within the neck.” The
pathologist estimated that Thompson was rendered unconsciousness in 15 to 20 seconds,
suffered petechial hemorrhaging in 45 to 60 seconds with the loss of blood circulation,
and died sometime thereafter. The pathologist testified that brain death from strangulation
generally takes “somewhere around four minutes” but can occur in less time. He
estimated that Thompson was strangled “at least 45 seconds to a minute.”
       “This prolonged manner of taking a person’s life, 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.” (People v. Hovarter (2008) 44 Cal.4th 983, 1020;
see also People v. Stitely, supra, 35 Cal.4th at p. 544 [strangulation is evidence of
premeditation and deliberation].) Thompson lost consciousness after 15 to 20 seconds of
being choked yet defendant continued to apply pressure for at least an additional 25
seconds and perhaps as long as an additional three minutes. The jury could infer that
defendant’s act in continuing to strangle Thompson after she lost all power to resist him
was calculated to kill.
                                        Disposition
       The judgment is affirmed and the petition for writ of habeas corpus is denied.



                                                  _________________________
                                                  Pollak, Acting P.J.

We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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