Filed 12/15/15
                     CERTIFIED FOR PARTIAL PUBLICATION*

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION ONE


THE PEOPLE,                                        A139881

     Plaintiff and Respondent,                     (Contra Costa County
v.                                                 Super. Ct. No. 51014331)
JENNELL RENEE WRIGHT,

        Defendant and Appellant.


                                   I. INTRODUCTION
        Following years of strife between Jennell Wright and her former boyfriend,
Le’Mar Green, some of it centered around their three-year-old son, defendant drove to
Green’s home, waited for him to return from work, and shot him three times. A jury
convicted defendant of first degree murder with a special circumstance finding of lying in
wait.
        On appeal, defendant argues the trial court erroneously failed to instruct on self-
defense, imperfect self-defense and provocation/heat of passion theories of voluntary
manslaughter, and on provocation as a basis for the reduction of murder from first to
second degree. She also argues the evidence was insufficient to s upport the lying-in-
wait special circumstance finding, the court erroneously excluded defense evidence, and
a juror’s postings on Facebook constituted prejudicial misconduct. We affirm.




*
 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts IV.A–E and H–J.
                             II. STATEMENT OF THE CASE
        By first amended information filed July 28, 2011, the Contra Costa County District
Attorney charged defendant, Jennell Renee Wright, with the special circumstance murder
of Le’Mar Green while lying in wait (Penal Code,1 §§ 187, 190.2, subd. (a)(15)), and
shooting at an occupied motor vehicle (§ 246) on February 23, 2010. The information
alleged that she committed each offense while personally and intentionally discharging a
firearm to cause great bodily injury or death. (§ 12022.53, subds. (b), (c), & (d).)
        Jury trial commenced November 7, 2011, and was submitted to the jury on
December 8, 2011. The jury was instructed on self-defense (CALCRIM No. 505); right
to self-defense: mutual combat or initial aggressor (CALCRIM No. 3471); right to self-
defense: may not be contrived (CALCRIM No. 3472); voluntary manslaughter–heat of
passion (CALCRIM No. 570); voluntary manslaughter–imperfect self-defense
(CALCRIM No. 571); and provocation: effect on degree of murder (CALCRIM
No. 522).
        During 10 days of deliberation, the jury made several inquiries. 2 One juror was
replaced by an alternate, argument to the jury was reopened, and an Allen charge was



1
    Unless otherwise specified, all statutory references are to the Penal Code.
2
    As relevant here, the jury asked:
       “(1) Regarding #3471 Right to self-defense: mutual combat or initial aggressor:
Must it be shown beyond a reasonable doubt that both items are true, or is it sufficient
that both are reasonably possible? [¶] (2) Does #3471 apply to imperfect self-defense?
       “Regarding instruction 570: [¶] If we assume that the defendant fired the first
shot, may any of the victim’s subsequent actions be considered provocation?
       “1.a. If a homicide is determined not to be done in self-defense or defense of
another (per instruction 505), is it necessarily unlawful? [¶] 1.b. I.e., are there other
forms of lawful homicide that could apply in this case? [¶] 2.a. Is it possible for an
unlawful homicide to not meet the requirements for either murder or manslaughter that
have not been presented to us? [¶] 2.b. If so, would that mandate a verdict of ‘not
guilty’?
                                               2
given.3 On January 11, 2012, the jury found defendant guilty of shooting at an occupied
motor vehicle, and further found she personally and intentionally used a firearm.
(§§ 246, 12022.53, subds. (b) & (c).)
       The jury reached no verdict on the murder charge and made no finding on the
allegation she personally and intentionally discharged a firearm causing great bodily
injury or death in the commission of the section 246 charge. The court declared a
mistrial on that charge and allegation.
       Jury trial before the same judge commenced January 22, 2013. The trial court
solicited briefing on the preclusive effect of the section 246 conviction on self-defense




       “Regarding instruction 520, items #3 + 4 under implied malice: [¶] 1. In item #3,
does ‘knew’ refer to knowledge gained beforehand or awareness of the moment? [¶]
2. Can you elaborate on the meaning of item #4, specifically the meaning of ‘conscious
disregard’?
       “We the jury request the following: [A]dditional arguments and clarification
regarding: [¶] -instruction 520, implied malice, in particular items #3 + 4, including
interpretation of the wording therein. [¶] –instruction 521 B. Lying in Wait.
        “Instruction 500 states, ‘If there is no legally valid excuse or justification, the
killing is unlawful and, depending on the circumstances, the person is guilty of either
murder or manslaughter. This would seem to be untrue if we are allowed to: [¶] 1. Rule
out lawful homicide in self-defense and manslaughter by imperfect self-defense (as initial
aggressor); [¶] 2. Rule out manslaughter by heat of passion (since not provoked); AND
[¶] 3. find that the evidence fails to prove the required elements of malice aforethought
(due to mental state). [¶] Please explain this apparent contradiction.
        “Implied malice appears not to require intent to kill, deliberation, premeditation, or
lying in wait. Given the limitations listed in instruction 625 [Voluntary Intoxication:
Effects on Homicide Crimes], may voluntary intoxication be considered when
deliberating implied malice? [¶] If not, and if we believe that voluntary intoxication
contributed to the defendant’s mental state, then how exactly are we to ‘not consider’ it?
[¶] Are we expected somehow to speculate as to what her mental state would have been
in the absence of intoxication?”
3
 Allen v. United States (1896) 164 U.S. 492. The court gave an instruction approved in
People v. Moore (2002) 96 Cal.App.4th 1105, 1118–1122.
                                              3
and voluntary manslaughter issues. Subsequently, the court refused to instruct on self-
defense, imperfect self-defense, provocation, and voluntary manslaughter.
       On February 26, 2013, after one day of deliberation, the second jury returned a
guilty verdict of first degree murder, found true the special circumstance that she killed
while lying in wait, and the allegation she personally and intentionally discharged a
firearm causing great bodily injury or death in connection with each substantive charge.
       On July 26, 2013, the court sentenced defendant for murder and firearm use to life
without the possibility of parole, plus 25 years to life. For shooting into an occupied
vehicle and firearm use, the court sentence defendant to the midterm of five years, plus
25 years to life. The latter sentence was stayed pursuant to section 654. Defendant
timely appeals.
                             III. STATEMENT OF FACTS
A.     The Crime Scene
       Pelican Loop in the City of Pittsburg is a secluded community of about 100
townhouses with five parking lots. On February 23, 2010, Barbara Gee returned to her
home on the Loop at about 1:00 a.m. to find the body of her next-door neighbor
Natasha’s fiancé lying face down on the ground next to the driver’s door of his car. Gee
called the police. At 12:50 a.m., another resident of the Loop had been awakened by the
sound of gunshots. The first shot was followed by a pause, then by two more gunshots
that sounded as if they came from the parking lot. Shortly thereafter she heard a car drive
out of the parking lot, pass her house going pretty fast, and turn onto Railroad Avenue.
       Pittsburg police officer Jerald Lombardi arrived at Pelican Loop a few minutes
after 1:22 a.m. A man’s body was lying face down on the ground in the parking lot
between two cars. His right hand was partially clenched into a fist. There was broken
glass on the ground around the body. The car’s driver’s door was open and the driver’s
door window was shattered. There was broken glass on the floorboard and front seat, and


                                              4
a bullet fragment on the driver’s seat. There were no signs of life. The driver’s license in
a wallet in the man’s right rear pants pocket identified him as Le’Mar Green.
       Green’s feet were one to one-and-a-half feet from the open doorjamb. Lombardi
found a pack of cigarettes and a single burned-out cigarette butt on the ground near
Green. Liquid on the ground under Green’s mouth smelled of beer. There was no blood
inside the car.
       The keys were in the ignition, which was in an “on” position, and Lombardi could
hear an audible alarm sounding an alert that the car door was open while the keys were
inside the car. The engine was not running. In the center console of the car was a cold
beer can about three-quarters full. Green’s cell phone was found in the car.
       Approximately 10 feet from the body, behind the car, was a fully loaded speed
loader containing six live rounds. Seven more live rounds were on the ground. The
bullets in the speedloader were Hornady .38-caliber, Special rounds, hollow tip, as were
the bullets found on the ground. No empty shell casings were found, indicating a
revolver was used. No weapons or additional bullet damage to the car were found.
       1. The Police Investigation
       The City of Pittsburg has surveillance cameras in all the major intersections that
feed information to a monitoring room at the police department, where the information is
recorded by computer hard drive 24 hours a day, seven days a week. A police officer on
monitoring duty at the station located seemingly relevant video footage. Still photos
from that footage of the vehicles leaving the scene at approximately 12:51 a.m. that
morning were taken to the investigating officers at the scene.
       Green’s fiancée, Natasha Griffith, was located and informed of Green’s death.
Griffith told police that defendant was the mother of Green’s three-year-old son, that
Green had been ordered to pay child support in November of 2009, that defendant had
been asking Green for more money, and that she had been excessively phoning and
texting Green. Griffith was transported to the Pittsburg Police Department, where she
                                             5
identified defendant from a picture the police showed her. They also showed her a
picture of a car she did not recognize. She told police defendant drove a beat-up red or
wine-colored automobile.
       Green’s mother, Lucinda Jackson, was summoned to the Pittsburg police station,
where other family members were also gathered. Ms. Jackson told police the only
person her son had problems with was defendant. She also identified defendant’s
mother’s car at an intersection near Green’s home in a picture the police showed her.
       Police used DMV records to verify defendant’s mother’s car was a 1997 Toyota
Avalon and matched it to the car in the surveillance video. When police later checked
defendant’s home in Vallejo, no one was home. Defendant’s car was there, but her
mother’s Avalon was not. Police learned that defendant did not go to work on
February 23.
       Later, police inspectors learned defendant had been arrested for possessing a
concealed loaded firearm at the Mar Ray motel on Railroad Avenue. Defendant had
checked into the motel on February 22, 2010, after 10:00 p.m. Defendant did not appear
intoxicated to the motel owner at that time.
       The next morning, defendant did not check out despite several warnings. When
she had not checked out by 2:30 p.m., the motel owner called the police. The responding
officer told defendant she needed to leave. Defendant was moving slowly, and said she
was feeling dizzy. She gathered her two bags and purse, and said her mother was coming
to give her a ride.
       Defendant sat outside to wait. A little while later, the motel’s housekeeper reported
to the motel owner that defendant had a gun. The motel owner again called the police
and when the police responded shortly thereafter, he pointed out to them defendant’s
green Toyota Avalon. The cleaning lady pointed out live cartridges under the mattress in
defendant’s motel room. They were hollow-tip .38-caliber Special Hornady.


                                               6
       Defendant consented to a search of her belongings. Inside one bag was a small
silver Smith and Wesson .38-caliber revolver containing six live rounds. Inside another
bag were more live .38-caliber rounds. Defendant was arrested for possession of a loaded
concealed firearm.
       There were rounds of ammunition on the driver’s seat of defendant’s car, which
was registered to Robbie Wright. Inside one of defendant’s bags police found an Orchard
Supply and Hardware sales receipt and inside her purse they found some handwritten
notes, which read: “I got to get Lucinda’s son and Robbie’s daughter,” “[i]t started with
you and will end with you,” and “[u]nknown what to do February 20.” Inside her wallet
was a debit card with Green’s photo. One of her bags contained “quite a bit of
ammunition,” including three Hornady expended brass casings consistent with .38-caliber
Hornady hollow tip bullets, and two water bottles of green liquid.
       Defendant’s mother, Robbie Wright, and sister, Joann Wright, arrived at the Mar
Ray Motel after defendant had been taken to jail. They advised the police inspector they
were afraid defendant might have attempted suicide at the motel. They were subsequently
interviewed separately at the police station. The police did not tell them Green had been
killed or that defendant was a suspect until after they were interviewed.
       Joann Wright told the police that defendant and Green had been arguing on
Saturday, February 20 when Green came to pick up their son. Joann said: “She was just
real[ly] talking nasty to him and trying to provoke him to say stuff.” Joann remembered
thinking she hoped Green did not say anything to defendant because if he did there would
be an argument.
       The recording of Robbie Wright’s interview was played for the jury. She lived in
Vallejo with defendant and Joann. On Monday evening around 10:00 or 11:00 p.m.,
defendant asked Robbie if she wanted anything from the store, and Robbie said no. At
4:00 a.m. the next morning, Joann noticed Robbie’s car was gone, but defendant’s red
Plymouth Breeze was parked in front of their house. Defendant’s mother was afraid
                                             7
defendant was going to attempt suicide again, as she had two years before, because she is
mentally ill. Robbie repeatedly called defendant’s cell phone and finally got an answer.
Defendant said she was ready to come home, but could barely talk. Robbie noticed
defendant’s Prozac bottle was empty.
       Robbie described defendant’s previous suicide attempt in 2008 and her subsequent
hospitalization and treatment. She knew that defendant and her baby’s father did not get
along. They argued. Robbie described them as a “a fuse . . . [w]hen they get together.”
She agreed with the interviewer’s characterization of their relationship as “pretty volatile
at times.”
       Robbie thought defendant was still in love with Green and wanted to get back with
him. When Green moved on and started living with his new girlfriend, Natasha, it “threw
her over the edge.” Defendant could not accept Green’s new girlfriend.
       Robbie and Joann Wright allowed a search of their home. Inside defendant’s
bedroom the inspectors found many empty tequila bottles in the dresser drawers and on
the floor, and a bottle of green antifreeze. There were three empty ammunition boxes,
two for Hornady hollow point bullets and one for .38 caliber lead bullets. They also
found speed-loader packaging and a daycare contract.
       Robbie Wright agreed to a search of her car. Inside the car were three live .38
caliber Hornady hollow tip rounds, a half-full tequila bottle, and a partially full
acetaminophen bottle.
       After interviewing Robbie and Joann Wright, the inspectors tried to interview
defendant in a holding cell at the jail. She was barely responsive, and very lethargic. She
was seated on the floor, and could not stand up by herself. The inspector could tell
something was wrong; she “appeared altered.” The inspector helped her stand up and
asked her what she had taken. Eventually defendant revealed she had taken a whole
bottle of Prozac and ingested antifreeze. The inspector requested emergency fire and
ambulance aid and verified that the officer who had searched defendant’s belongings had
                                              8
located empty pill bottles and a water bottle containing a liquid consistent with antifreeze.
Defendant was transported to the hospital in a very serious condition.
       2. Surveillance Video Evidence
       Surveillance video from the Mar Ray Motel from 10:00 p.m. to midnight showed a
vehicle entered the motel on February 22, 2010, at about 10:34 p.m. and left the premises
at about 11:54 p.m.
       A compilation of surveillance video from City of Pittsburg cameras at various
locations showed a 1997 Toyota Avalon leaving the Mar Ray Motel on February 22,
2010, at 11:53 p.m. The car turned onto Railroad Avenue, drove through the downtown
area and to Pelican Loop. Later, Green’s Pontiac Grand Prix drove on Railroad Avenue
through the downtown area and to Pelican Loop on February 23, 2010, at about 12:41
a.m. About 12:50 a.m., the Toyota Avalon drove from Pelican Loop with its lights off to
Railroad Avenue, when its lights turned on, and drove on Railroad Avenue to the Mar
Ray Motel.
       Green worked from 3:30 p.m. to midnight. Normally, when Green got off work,
he would buy a pack of cigarettes and a beer, then sit drinking the beer and smoking
cigarettes in his Pontiac Grand Prix in the parking lot at Pelican Loop.
       3. The Autopsy and Ballistics Findings
       Green was six feet, five inches tall and weighed 209 pounds. He died of multiple
gunshot wounds. There were three bullets in his body. One bullet entered his left chest
just above the nipple. It was fired from his left and travelled to his right and sharply
downward at a 45-degree angle through the third rib, left lung, heart, diaphragm, and
liver, before coming to rest in the right flank. The other two bullets entered the left arm
and left shoulder within inches of each other. The bullet that entered the left arm was
also fired from Green’s left, traveled left to right, and sharply downward as it went
through the left arm, armpit, chest, left lung, heart, diaphragm, and liver before coming to
rest in the right flank lower than the bullet that entered the chest. The bullet that entered
                                              9
the left shoulder was also fired from Green’s left, traveled from left to right and
downward as it went through the left arm, armpit, and came to rest outside the chest wall
without penetrating the chest or any organs. It was not a fatal wound. The right wrist
had gunpowder stippling, which can occur within 18 inches of the gun barrel.
       A firearms expert compared defendant’s Smith and Wesson revolver with the
bullets recovered from Green’s body. The two autopsy bullets were fired from the
revolver. The revolver did not have a hair trigger. The speed loader found in the parking
lot was for a revolver that holds six unfired cartridges in its cylinder.
       Defendant’s blood samples, taken on February 23, 2010, at 8:15 p.m., tested
negative for alcohol, methamphetamine, and cocaine, but positive for opiates,
specifically hydrocodone. The hydrocodone was present in the lowest detectable
concentration—.02 milligrams per milliliter—and could have resulted from ingestion
two days prior to the test.
       4. Defendant’s Statement to Police at the Hospital
       Police inspectors interviewed defendant at the hospital on February 25, 2010.
The recorded interview was played for the jury.
       Defendant admitted she accidentally shot Green. “I was just going to shoot at
him.” She bought the gun and ammunition to shoot herself. “It was just too much
stress.” While she was in the motel room she decided to scare Green. Defendant was
angered by Green’s relationship with his new girlfriend and his failure to fulfill his
responsibilities with defendant’s son. She waited in the parking lot for about 10 minutes
before he got there. She sat and watched Green for about five minutes before going to
shoot at him.
       The first time she fired, she missed. The shot shattered the glass. Then he got out
of his car and tried to hit her. He asked what she was doing there When he tried to
come after her she got scared. He came towards her between the two cars. She fired
once or twice. She thought maybe she hit him in the leg. He fell; she ran.
                                              10
       When she got back to the motel room she took pills and drank antifreeze to kill
herself. She said Green’s work schedule had changed and she did not know Green would
arrive while she was at the lot. Green told her where he lived, but she had never been
there before.
       She had some feelings for him, but she was not in love with him. She was not
upset he had a new girlfriend. She did not plan to scare Green. She decided to scare
Green at the motel room.
B.     Defendant’s Relationship with Green
       Lucinda Jackson (Green’s mother), Robbie Wright (defendant’s mother), Joann
Wright (defendant’s sister), Natasha Griffith (Green’s fiancée), and Andre Haywood
(Green’s friend), testified about defendant’s stormy relationship with Green.
       According to Jackson, after their son was born in 2007, Green and defendant tried
to make a go of it, but they could not get along. Green moved back in with his mother in
November of 2007 and lived with her until she moved away in July of 2008. Green
moved back in with Jackson in February 2009, after she returned to Antioch. In March or
April of 2009, Jackson asked a friend from work, Natasha Griffith, to live with her.
Griffith and Green became romantically involved and eventually moved to Pelican Loop.
       From 2007 through 2008, Green’s relationship with defendant was stressful,
tumultuous, and scary. Defendant would show up at Jackson’s house regularly. If Green
did not answer his phone, defendant would call Jackson. She would knock on Jackson’s
window and wake her up.
       After Griffith moved in, there was an incident where defendant came to Jackson’s
house at about 10:30 p.m., dressed in dark clothing. She was very aggressive and very
angry and said Green was not answering his phone. Defendant wanted to know who
lived in Jackson’s house and who Griffith was. After that, defendant would not let Green
or Jackson see their son for four months.


                                            11
      According to Griffith, in the Fall of 2009, Green “really wanted to get custody of
his son.” He “took Ms. Wright to court. He served her.” Jackson helped Green with his
court papers to get an order for visitation and custody. During that time period, Green
showed Griftith threatening text messages to him from defendant. One said she would
not stop until he was six feet under. Other texts said, “I’m going to end you” and
“[y]ou’re going to have nothing.” Eventually, defendant and Green reached a visitation
agreement that Green would pick up their son from defendant every other weekend on
Saturdays at 11:00 a.m. and return him to defendant on Mondays at about 2:00 p.m.
before Green went to work. The exchanges were always at defendant’s home in Vallejo
and never at Griffith’s home on Pelican Loop.
      Griffith confirmed that after she moved in with defendant and his mother,
defendant came to Jackson’s house and tried to force her way inside. Defendant was
upset, very mad, and aggressive.
      After Griffith and Green moved to Pelican Loop in October 2009, Green was
adamant about not letting defendant know where he lived. At that point, the relationship
between defendant and Green was “very turbulent” and they were not on good terms.
Their telephone conversations were “ugly.”
      Griffith overheard several telephone conversations between defendant and Green.
From November 2009, Green argued with defendant on the phone and received
threatening text messages from her. Griffith believed the arguments were triggered
because defendant wanted him back, and he continued to live with Griffith. “She didn’t
like that at all.” But there was also an ongoing battle between defendant and Green over
custody, child support, and the child’s care. One issue was “[t]that he wanted his son.”
He was concerned because his son was terrified of water, unkempt, unable to use a fork
or spoon and “appear[ed] to be slightly autistic.” Green stressed that the child “needed
to be checked out.”


                                            12
       In August or September 2009, Green asked his friend Andre Haywood to help him
serve custody papers on defendant. After Haywood handed defendant the papers,
defendant told Green, “You better enjoy your son while you can.”
       Haywood described Green’s relationship with defendant as “real shaky.” Green
did not want to be on the phone with defendant because they would argue. Often,
Haywood could hear defendant screaming at Green on the phone. If Green did not
answer his cell phone when she called, there would be 20 or 30 missed calls from her and
text messages in which defendant threatened to call Green’s mother’s phone and wake
her up, or text things like, “If you don’t pick up, I’m not going to stop until you’re six
feet under.” In 2009, when Green lived in Concord, Haywood would come over and they
would work on cars for extra money. Sometimes defendant would park down the street
and call him from her car.
       In November 2009, defendant, her two sons, her mother, her sister, and her sister’s
teenage daughter moved into a six-bedroom house in Vallejo. By early 2010, that
arrangement had soured. There were arguments about finances, defendant’s failure to
pay her fair share of the household expenses, defendant’s oldest son’s troubles at school,
and putting Green and defendant’s son in daycare. The situation was aggravated by
Robbie Wright’s surgery for carpal tunnel syndrome in January. Robbie was no longer
able to take care of their son, and defendant had to pay for his daycare.
       In January 2010, they had a birthday party for their son that Green attended.
Green and defendant were still fighting. Defendant wanted to talk to Green when he was
leaving the party and would not let him go. Green asked Robbie Wright to help him so
he could leave. Green told Robbie where he was living but asked her not to tell
defendant.
       When Robbie Wright saw the yellow tape at the motel, she thought defendant
had killed herself due to too much pressure. The police did not tell her otherwise before
she talked to them. In addition to attempting suicide on February 23, 2008, defendant
                                             13
also tried to kill herself at Mare Island the night after her birthday on December 26,
2009.
C.       Defendant’s Prior Testimony
         Defendant’s sworn testimony from the first trial was read to the jury by the
prosecution. She first met Green in 2002. They were friends and coworkers and she
started dating him in 2004. He moved in with her, her mother, and her oldest son. She
became pregnant, and wanted the baby, but Green did not. She felt hurt and abandoned.
They started not getting along, squabbling about various issues. She ended up not having
that baby. She became stressed and depressed to the point she could not get up and
complete normal tasks. She was drinking a fifth of tequila a day after work.
         In 2006, defendant became pregnant again. Green did not want this child either.
The couple broke up and Green went to live with his mother. That made her feel sad and
hurt.
         Their son was born in January 2007. She still loved Green, but she did not see
him very often after their son’s birth. After she gave birth, defendant started to feel more
depressed. She had trouble concentrating, remembering things, getting out of bed. She
was stressed about her job and financial problems. She saw a doctor at Kaiser and was
prescribed Prozac, which she took without any success. She started drinking on a daily
basis.
         Right after she went back to work in April 2007, Green moved back in with her.
He would watch their son during the day when she was at work. Their relationship was
“off and on.” They argued about childcare and money, and she remained depressed about
her work and home life. Eventually, Green moved out again.
         In March of 2008 she tried to kill herself by taking sleeping pills with alcohol.
She resumed the use of Prozac. She and Green continued to argue about money and
childcare. She moved to Antioch to be closer to her childcare provider. However, Green


                                               14
was living nearby. While she saw him infrequently, they regularly fought over childcare
payments.
       She started dating her supervisor, Dwayne McFadden, in January or February
2009, and they were married in August 2009. At that time, defendant and Green were
embroiled in a custody dispute that was ultimately resolved by an agreement giving both
parents joint legal custody and Green visitation every other weekend.
       In September 2009, defendant and Dwayne’s relationship became tumultuous, and
they separated. She was drinking a fifth of tequila daily and using Vicodin, Oxycontin,
and Prozac to relax and feel “normal.”
       In November 2009, defendant moved into a house in Vallejo with family members
to ease her costs. Her depression persisted and she continued self-medicating. Defendant
soon stopped getting along with her mother and sister. She argued with her family about
housework, money, spending time with her kids, her oldest son’s bad grades. At work,
defendant sparred with her coworkers about work not getting done. She was drinking a
quart of tequila daily and taking prescription drugs. These several stressors built up to
the point she attempted suicide again in December 2009 by taking sleeping pills at the
marina near Mare Island “because it was a place where nobody would find me.” She
went to see a Kaiser therapist, who put her back on Prozac.
       In December 2009, defendant and Green tried unsuccessfully to get together. In
November 2009 she learned Green had begun dating a girl who lived with Green’s
mother. Defendant believed she was being cheated on if Green was with her and Natasha
Griffith at the same time.
       In January 2010, defendant was still feeling morose and having suicidal thoughts.
Green threatened custody modification with their son, claiming defendant was unfit. He
was keeping their son’s clothes after visits. She did not know where Green lived, and
she worried she would not know where to look for their son if Green did take him.
Green refused to tell her where he currently lived. At some point she overheard Green
                                             15
telling his address to her sister and wrote it down so she could look it up. However, she
never visited the location until the night of the shooting. Defendant denied she sent
Green a text message during this time, saying, “I won’t stop until you’re six feet under.”
       In February 2010, defendant still loved Green, but she did not want him back and
was not jealous of Griffith. She might have told a psychiatrist she thought she and
Green were going to have sex at their son’s birthday party in January 2010, but denied
saying she took off her clothes and tried to seduce him. She denied telling Anita
Greenwood if she could not have Green, nobody was going to have him.
       By this time, defendant stopped seeing her psychiatrist because she could not
afford the copayment. She resolved to kill herself on February 20 because both children
would be out of the house that day. However, defendant did not kill herself on that date
because her older son stayed home from school. When Green came to pick up their son
that day, they did not argue.
       Around this time, she wrote notes to herself, because sometimes it helped her feel
better about what was going on. The notes were not all written at the same time. One
note read in part: “It started with you. Will end with you. Never thought your pain was
funny.” Defendant explained it referred to an argument they had at the time that made
her feel as if he was laughing at her. She often felt Green was mocking her “[b]ecause
he wouldn’t take me seriously when I tried to tell him things or I’d talk to him about
things. [¶] . . . [¶] Sometimes he’d laugh. A lot of times he would do just the opposite
of what I asked or what I needed done.” Another note read: “What was in the beginning
will be in the end.” Other notes read: “I got to get Lucinda’s son and Robbie’s
daughter,” and “[u]nknown what to do, February 20th, the end.” Lucinda’s son was
Green, and Robbie’s daughter was defendant. February 20 was the day she was going to
kill herself. Defendant was otherwise unable explain what these notes meant.
Defendant also wrote, “It started with you and will end with you,” “706 blue,” “five
shots,” and “hollow.” She did not know what those meant.
                                            16
       She was going to take pills and then shoot herself with a gun she bought for
protection at the end of January from a person in the neighborhood. She bought “a lot”
of hollow tip bullets because they were on sale and the salesman said they were good
bullets. She bought a speed loader for the gun because the “[s]ales guy said it would
help me load the gun since I didn’t know anything about it.”
       Defendant’s custody agreement with Green was that he would bring their son
back on Monday, but they had a verbal agreement he would bring him back on that
Sunday because defendant had already paid for childcare for the upcoming week starting
Monday. Defendant worked Monday through Friday, 6:30 a.m. to 2:00 p.m. When
Green did not bring their son back on Sunday, February 21, defendant worried Green was
not going to bring him back in time to go to childcare on Monday. Defendant did not try
to contact Green on Sunday or Monday morning to tell him what time daycare was
supposed to start.
       Defendant was unable to work on Monday, February 22, because she had
consumed too much alcohol on Sunday. She was stressed and depressed. While she was
running errands that day, Green returned their son to defendant’s home. When defendant
returned she saw the child in diapers without the clothes he wore when Green picked him
up. This triggered defendant’s fear Green was hoarding his son’s clothes to facilitate his
keeping the boy from her.
       That night, defendant left her house about 10:00 p.m. because she was stressed and
needed to go for a drive. She drove around on the freeway and ended up in Pittsburg,
knowing Green lived there. She wanted to talk to him about his threats to take their son
away from her. She got off the freeway at the Railroad Avenue exit, which was the
closest one to Green’s home. She stayed at the Mar Ray Motel, which was near both
the freeway and Green’s home. She was going to kill herself at the motel. She had
decided to shoot herself with the gun she had obtained earlier and drink the antifreeze she
had originally bought for her car. She had the loaded gun in her purse and had packed
                                            17
her mother’s travel bag with numerous bullets. She also had the speed loader fully armed
and brought it with her, although she could not explain why. She had also packed her
work clothes and makeup bag, in case she changed her mind.
       At the Mar Ray Motel she initiated the process of suicide by drinking tequila,
taking a couple of sips of antifreeze and downing Vicodin. She was not thinking about
Green. She then fell asleep and woke up believing she needed to speak with Green about
his threats to take her son away. She still was not thinking about hurting him. Yet she
also testified she first got the idea to shoot him when she was in the motel room.
       After leaving the motel, the next thing she recalled was parking the car in the
front parking lot for the Pelican Loop apartments. She did not know exactly where
Green lived. She parked in the front so she would not miss him if he were going by.
Defendant used her mother’s car because it ran better, not because Green was
personally familiar with her Plymouth Breeze. While parked, she continued drinking
tequila, but felt nauseous until she fell asleep again. Defendant was unsure if Green
still was engaging in his habit of having a beer and some smokes before exiting his car
after work. She knew this was his usual practice. His prior schedule found him off
work around midnight but she was unsure of his current shift. She denied timing her
trip to Green’s home so she could be there when Green got home from work.
       When she woke up, she saw Green sitting in his car. Defendant decided she
wanted to talk to him. The next thing she remembered was standing by the driver’s
side window of his car. She had the gun in her hand because she “wanted him to
know I was serious when I came to talk to him.” “A lot of times he didn’t listen and
he would laugh at me when I would tell him stuff.” She fired into the window “to get
his attention.” She was not planning to shoot him or trying to kill him.
       By this time, she was feeling the effects of what she had taken, sensing a lack
of control. Green “jumped out the car” and “tried to grab” her. He was leaning
forward. When he got out of the car, she backed up. He was angry and called her a
                                             18
“motherfucker.” He “swung at” her with a balled fist, almost touching her. She was
not sure what he was going to do; she was afraid. Thinking he would hit her, she shot.
She believed she shot him twice. She shot him from a distance of less than five feet.
She was not angry as she was shooting. After the last shot, Green fell. Then she ran
to her car and drove off. She did not call 911 or try to get help for him.
       When she got back to the motel, she drank the rest of the antifreeze and took
the rest of the pills to commit suicide. In the parking lot, defendant never thought
about shooting Green, then killing herself.
       At the hospital, she told police Green came after her exiting the car. She told
them he tried to grab her and she shot him. When she was in the parking lot, she was
not thinking that she would shoot Green and then kill herself. She never told Dr. Berg
it was her original plan to scare or shoot at Green, then come back to kill herself.
When she spoke to Inspector Conaty and Dr. Berg, she did not get a chance to explain
to them everything that happened, but she told everyone she spoke to that she did not
plan to shoot Green.
       She did not remember telling Dr. Ferranti repeatedly that she was angry; she
may have been upset. She denied telling Dr. Ferranti that she got really angry as she
got ready to shoot Green. She did not recall telling Dr. Berg she shot at Green because
she was angry at him for talking crazy to her. She denied telling Dr. Berg she shot at
Green because she wanted him to spend time with their son, and did not recall telling
Dr. Berg she thought that if she shot near Green he would do the right thing.
       Defendant denied sitting outside Green’s apartment and waiting for him to come
home when he lived in Concord, denied calling him at work all the time, denied putting
sugar in his gas tank, egging Griffith’s car, sending Green threatening texts, or trying to
get at Griffith when she was at Green’s mother’s house.




                                              19
D.     Defense Evidence
       In the second trial, defendant testified again, in many ways consistently with the
summary above of her testimony from the first trial. The details were similar. It is not
necessary to repeat them in our discussion of the defense evidence.
       Defendant did indicate Green infrequently provided her with money to help raise
their son, giving her funds to purchase diapers or $100 every now and then. Only after
November 2009, when the couple were involved in judicial custody proceedings, did the
assistance from Green increase a bit.
       Defendant also acknowledged she testified at her first trial the idea of shooting
Green arose while she was at the motel before going to his home, but that was not true.
“I may have misspoke, but that’s not what I meant.” She also recalled testifying she
“never thought about it.” That was true. At the motel, she was thinking about killing
herself, and feeling she needed to talk first with Green. She was unable to explain why
she felt that way. A video recording of defendant at the jail was also played for the jury.
       Dr. Melanie Lee, a physician, treated defendant in March 2008 and February
2010 for suicide attempts. On March 6 and 7, 2008, defendant was hospitalized for an
overdose of Unisom, an over-the-counter sleeping medication which contains Benadryl,
and alcohol. After being discharged from the ICU, defendant was sent to an inpatient
psychiatric facility and referred to a psychiatrist, Dr. Towery. Defendant’s diagnosis
was major depression.
       Dr. Lee also saw defendant on February 24 or 25, 2010, when defendant was
treated in the emergency room after taking antifreeze. Lab results showed defendant
had profound metabolic acidosis and an elevated anion gap, which is consistent with
ethylene glycol poisoning from ingesting antifreeze.
       Dr. Towery was asked to do a psychiatric evaluation of and make a treatment
recommendation for defendant. He saw her on March 7, 2008. Defendant came in
following an overdose and the recommended treatment was that she be transferred for
                                            20
inpatient psychiatric treatment after she was medically stabilized. Based on his
consultation with defendant, Dr. Towery diagnosed her with major depression, single
episode and recurrent. Persons suffering from major depression may have suicidal
thoughts, low or no enjoyment in doing things, low energy, low motivation for doing
things, low interest in things, sleep and appetite disturbance, and often a lower sense of
self-esteem. Major depression may also affect cognitive function. Treatment is usually
a combination of psychiatric medication and psychotherapy and generally takes place in
a psychiatric hospital or other supervised setting to prevent suicide. Prozac is
commonly used to treat major depression. He did not follow up with defendant after the
initial consultation. He next saw defendant on February 25, 2010, when he diagnosed
major depression, recurrent, and alcohol abuse/dependence. He recommended she
resume taking antidepressant medication.
           On December 28, 2009, at about 2:00 a.m., Officer Ritzie Tolentino found
defendant in a car parked in the middle of the road on the abandoned military base on
Mare Island where there were no street lights and no people. Defendant was passed out
inside the vehicle with the engine and lights on. She appeared to have passed out from
intoxication. After being awakened, she was unable to talk. She was booked and taken
to jail.
           Dr. Leland Mew, a retired emergency room doctor, treated defendant on
February 23, 2010, in the hospital emergency room when she was brought in by police
and paramedics. She was lethargic and unable to answer questions. Knowing
beforehand she had probably overdosed on ethylene glycol, which is toxic as well as
lethal, he began immediate treatment for acidosis with stomach pumping and the
antidote panipisol. Tests confirmed she had metabolic acidosis, which could be caused
by ingesting antifreeze.
           If a female five feet four inches tall and weighing 135 pounds drank a fifth of a
liter of tequila from 11:00 p.m. to 1:00 a.m., by 8:15 p.m. that evening her blood-
                                                21
alcohol level would be at or near zero. A concentration of .02 micrograms per milliliter
of hydrocodone would be at the lower end of the therapeutic range for a chronic user.
Hydrocodone is an opiate contained in Vicodin. It can affect a person’s cognitive
abilities. Alcohol can magnify the effects of opiates.
                                     IV. DISCUSSION
       Defendant contends the trial court erred prejudicially by failing to give requested
instructions on the principles of homicide law that may reduce a first degree murder to a
second degree murder or manslaughter. Specifically, the defense requested CALCRIM
Nos. 505 (justifiable homicide and self-defense), 570 (voluntary manslaughter-
provocation and heat of passion), 571 (voluntary manslaughter–imperfect self-defense),
and 522 (provocation may reduce first degree murder to second degree murder). These
instructions were given at the first trial.
       The court’s rationale for refusing to instruct on these principles and lesser
included offenses appears to have been twofold. First, the court may have concluded
the first jury’s guilty verdict on count two, shooting into an occupied vehicle, precluded
instruction on the issues of provocation, heat of passion, self-defense and imperfect self-
defense in the second trial. Second, the court concluded defendant’s testimony at both
trials, viewed in light of certain ancillary principles of homicide law, established as a
matter of law that self-defense, provocation, heat of passion, and imperfect self-defense
were unavailable as theories of defense. As we explain, the court made several errors,
but we conclude the errors do not warrant reversal.
A.     Background
       After the mistrial of the murder count, the trial court began to explore ways in
which the first jury’s verdict might foreclose, before a second jury, litigation of the
issues that had bedeviled the first jury. The trial court requested briefing on questions
that assumed the jury’s guilty verdict on the section 246 charge reflected a finding
defendant shot into the vehicle without provocation, and asked whether that finding
                                              22
“foreclose[d] as a matter of law” instructions on self-defense and voluntary
manslaughter on retrial of the murder charge. The trial court also asked if defendant’s
testimony at the first trial foreclosed instructions on self-defense and voluntary
manslaughter. The prosecutor argued that by virtue of its guilty verdict in count 2
(shooting at an occupied vehicle), the jury found defendant to be the aggressor who
provoked the encounter. Therefore, the doctrines of imperfect self-defense and heat of
passion/provocation did not apply. The prosecutor also argued that, in retrospect,
defendant’s testimony at the first trial did not warrant imperfect self-defense or heat of
passion/provocation instructions, because she was the initial aggressor, the victim’s
response was justified, being fearful of getting hit and grabbed was not equivalent to
imminent peril to life or great bodily injury, and she did not testify she was angry. The
defense responded substantial evidence supported imperfect self-defense and voluntary
manslaughter instructions, the prior jury finding did not preclude self-defense, and
defendant must be given the opportunity to testify at the next trial before the court
determined which instructions were warranted.
       The parties and the court agreed the first jury’s verdict did not limit the evidence
to be admitted at the second trial. However, the court apparently concluded the verdict
did have a preclusive effect with respect to the issues to be decided by the second jury,
and the instructions to be given.
B.     Collateral Estoppel
       The trial court never used the term “collateral estoppel.” Nevertheless, defendant
argues the trial court erred in relying on that principle to preclude jury instruction on
defense theories of the case. “ ‘Collateral estoppel’ is an awkward phrase, but it stands
for an extremely important principle in our adversary system of justice. It means simply
that when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any future


                                              23
lawsuit.” (Ashe v. Swenson (1970) 397 U.S. 436, 443.)4 The Attorney General does not
defend the application of collateral estoppel/issue preclusion in this case; rather, she takes
the position the trial court did not apply it at all. We are not entirely persuaded that is so.
       To whatever extent the court based its refusal to instruct on defense theories on
some notion that the verdict and testimony from the first trial were entitled to any
preclusive effect whatsoever in the second trial, the court erred. “Collateral estoppel” or
issue preclusion applies in criminal cases when (1) the issue sought to be precluded from
relitigation is identical to that decided in a former proceeding; (2) the issue was actually
litigated in the prior proceeding; (3) the issue was necessarily decided in the former
proceeding; (4) the decision in the former proceeding was final and on the merits; and
(5) the party against whom preclusion is sought is the same as, or in privity with, the
party at the former proceedings. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
Even when all these threshold requirements are met, the doctrine may not be applied if
the policy considerations underlying the doctrine—“preservation of the integrity of the
judicial system, promotion of judicial economy, and protection of litigants from
harassment by vexatious litigation”—are outweighed by other factors, such as fairness.
(Id. at p. 343; see People v. Davis (1995) 10 Cal.4th 463, 514–515, fn. 10; Gutierrez v.
Superior Court (1994) 24 Cal.App.4th 153, 169.)
       Here, none of the threshold requirements were met, save identity of parties. The
issues decided by the jury’s verdict on the section 246 charge were not identical to those
issues left unresolved by the jury’s mistrial on the murder charge. The issues of
imperfect self-defense, provocation, and heat of passion were not relevant to, or actually
litigated with respect to, the section 246 charge, which is a general intent crime. (People


4
 In Ashe v. Swenson, supra, 397 U.S. 436, the defendant was originally tried for the
armed robbery of K., who had been victimized by several masked men in a poker game.
After being acquitted of that charge against victim K., the defendant was then tried and
convicted of robbing a second player in the same poker game. (Id. at pp. 437–440.)
                                              24
v. White (2014) 230 Cal.App.4th 305, 316.) Nor were those issues necessarily decided at
the first trial. Indeed, the first jury was unable to resolve them. Finally, the section 246
verdict was not final. It was still open to direct attack on appeal. (People v. Burns (2011)
198 Cal.App.4th 726, 733.)
       Defendant argues the error in giving preclusive effect to the verdict and testimony
from the first trial requires reversal because it removed issues of perfect and imperfect
self-defense, provocation and heat of passion from the jury. However, even assuming the
court improperly arrogated the factfinding function of a jury to itself, we cannot
determine whether such error is prejudicial without first considering whether the trial
court erred in concluding there was not sufficient evidence in the trial record to support
giving the requested instructions. We therefore review defendant’s claims of asserted
instructional next.
C.     Asserted Instructional Errors
       In criminal cases, even absent a request, the trial court must instruct on general
principles of law relevant to the issues raised by the evidence. (People v. Breverman
(1998) 19 Cal.4th 142, 154.) This obligation includes giving instructions on lesser
included offenses such as manslaughter when the evidence raises a question whether all
the elements of the charged offense were present, but not when there is no evidence the
offense was less than that charged. (Ibid.) In the former situation, the trial court must
instruct even when, as a matter of trial tactics, a defendant not only fails to request the
instruction, but expressly objects to its being given. (People v. Banks (2014) 59 Cal.4th
1113, 1160, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391,
fn. 3; see People v. Barton (1995) 12 Cal.4th 186, 196, 199–203.) This instructional
requirement “ ‘prevents either party, whether by design or inadvertence, from forcing an
all-or-nothing choice between conviction of the stated offense on the one hand, or
complete acquittal on the other. Hence, the rule encourages a verdict, within the charge
chosen by the prosecution, that is neither “harsher [n]or more lenient than the evidence
                                              25
merits.” ’ ” (People v. Smith (2013) 57 Cal.4th 232, 239–240; accord, People v. Banks, at
p. 1160; People v. Campbell (2015) 233 Cal.App.4th 148, 162.)
       Instructions on lesser included offenses are required whenever evidence the
defendant is guilty only of the lesser offense is “substantial enough to merit
consideration” by the jury. (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) In this
context, “substantial evidence” means evidence from which a jury composed of
reasonable persons could conclude the particular facts underlying the instruction existed.
(People v. Oropeza (2007) 151 Cal.App.4th 73, 78; People v. Salas (2006) 37 Cal.4th
967, 982–983; accord, People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8.) It does not
mean “ ‘the existence of “any evidence, no matter how weak.” ’ ” (People v. Moye
(2009) 47 Cal.4th 537, 553, quoting from People v. Flannel, at p. 684, fn. 12.)
       We review the trial court’s ruling independently (People v. Waidla (2000)
22 Cal.4th 690, 733, 737; People v. Licas (2007) 41 Cal.4th 362, 366), considering the
evidence in the light most favorable to the defendant. (People v. Millbrook (2014)
222 Cal.App.4th 1122, 1137.) “ ‘Doubts as to the sufficiency of the evidence to warrant
instructions should be resolved in favor of the accused,’ ” (People v. Flannel, at p. 685)
and disbelief of her version of the facts is not a legitimate basis for rejecting a requested
instruction since “it is the jury’s function to weigh the evidence and determine
credibility.” (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1452–1453; see People v.
Breverman, supra, 19 Cal.4th at p. 162.)
       The court’s extensive comments at the instructional settlement conference
indicate it believed defendant’s first shot into the car foreclosed self-defense and
imperfect self-defense instructions because defendant was the initial aggressor whose
conduct created the circumstances that bestowed on Green the absolute right to respond
with lethal force, and categorically deprived defendant of any right to defend herself
from his attack with lethal force. (In re Christian S. (1994) 7 Cal 4th 768; People v.
Frandsen (2011) 196 Cal.App.4th 266.) Shooting into the car also foreclosed
                                              26
instructions on provocation because Green’s response to the initial shot was the
predictable conduct of a resisting victim, which similarly gave rise to Green’s right to
defend himself with lethal force and deprived defendant of the right to respond in self-
defense. (People v. Rich (1988) 45 Cal.3d 1036.) The court also indicated it believed
instructions on heat of passion/provocation manslaughter were inapplicable because
words and simple assault are not legally sufficient provocation (People v. Gutierrez
(2009) 45 Cal.4th 789), and the provocation must come from the victim, not from the
defendant’s personal circumstances (People v. Steele (2002) 27 Cal.4th 1230).
       The court proposed modifications to CALCRIM Nos. 505, 522, 570, and 571,
which incorporated its reasoning. However, defense counsel objected to the court’s
proposed modifications and the court decided not to give the instructions over
objection.5 In addition, the court believed the victim of an initial aggressor’s assault
may respond with deadly force in the face of an imminent danger of merely “suffering
bodily injury,” whereas the defendant asserting self-defense or imperfect self-defense
must be in imminent danger of “being killed or suffering great bodily injury.”6 The

5
  The court’s modified versions of CALCRIM Nos. 505 [Justifiable Homicide: Self-
defense] and 571[Voluntary Manslaughter: Imperfect Self-Defense] would have
added the following language: “However, a defendant who, through her own
wrongful conduct (for example, the initiation of a physical assault or the
commission of a felony), has created circumstances under which her adversary’s
attack or pursuit is legally justified, may not claim self-defense [imperfect self-
defense] . . . . Thus, if the person threatening, or appearing to threaten, to kill or
inflict great bodily injury on the defendant was him- or herself acting in
reasonable self-defense against the defendant’s own initial aggression, the
defendant does not have a right to use lethal force against that response. Only
when the victim resorts to unlawful force does the defendant-aggressor regain
the right of self-defense. The right of a victim to self-defense is explained in
Instruction 505A.”
6
 “Instruction 505A” would have provided: “A person who is the victim of an aggressive
act that threatens bodily injury has a right to self-defense. A victim acts in lawful self-
defense if: [¶] 1. The victim reasonably believed that he was in imminent danger of
suffering bodily injury; [¶] 2. The victim reasonably believed that the immediate use of
                                             27
court cited no authority for this latter proposition, and none has any been cited to us by
the parties. Nor have we found any.
       Defendant argues pattern self-defense instructions were supported by her
testimony that she shot out the window of Green’s car only to get his attention, had no
intent to kill him, and moved back when Green got out of the car, shooting him because
she “wasn’t sure what he was going to do,” and it happened fast. She further argues that
imperfect self-defense instructions were additionally supported by her testimony from the
first trial, that she did not intend or plan to shoot Green, but only to get his attention; and
by her testimony, at the second trial, that she did not know why she shot into the car; she
“wasn’t thinking.”

D.     The Trial Court’s Proposed Instructions on Self-defense Were Incorrect in
       Several Respects, But the Refusal to Instruct on Self-defense Was Not Error.
       To warrant instructions on self-defense in this case, there must be evidence from
which a reasonable jury could find that defendant (1) actually believed she needed to use
deadly force against Green and (2) reasonably believed Green’s actions placed her “in
imminent danger of being killed or suffering great bodily injury.” (CALCRIM No. 505;


force was necessary to defendant against that danger; AND [¶] 3. The victim used no
more force than was reasonably necessary to defend against that danger. [¶] Belief in
future harm is not sufficient, no matter how great or how likely the harm is believed to
be. The victim must have believed there was imminent danger of bodily injury to
himself. The victim’s belief must have been reasonable and he must have acted only
because of that belief. The victim is only entitled to use that amount of force that a
reasonable person would believe is necessary in the same situation. If the defendant used
more force than was reasonable, the victim did not act in lawful self-defense. [¶] When
deciding whether the victim’s beliefs were reasonable, consider all the circumstances as
they were known to and appeared to the victim and consider what a reasonable person in
a similar situation with similar knowledge would have believed. If the victim’s beliefs
were reasonable, the danger does not need to have actually existed. A victim is not
required to retreat. He or she is entitled to stand his or her ground and defend himself or
herself and, if reasonably necessary, to pursue an assailant until the danger of bodily
injury has passed. This is so even if safety could have been achieved by retreating.”
(Italics added.) (Compare, CALCRIM No. 505.)
                                              28
In re Christian S., supra, 7 Cal.4th at p. 783.) The reasonableness of the defendant’s
beliefs are judged by “what a reasonable person in a similar situation with similar
knowledge would have believed,” considering “all the circumstances as they were known
to and appeared to the defendant.” (CALCRIM No. 505.) Finally, there must be
evidence to support the hypothesis that defendant used only “that amount of force that a
reasonable person would believe is necessary in the same situation. If the defendant used
more force than was reasonable, the . . . killing was not justified.” (CALCRIM No. 505.)
       In addition, an initial aggressor has a right to self-defense only if she actually and
in good faith tried to stop fighting and indicated to her opponent by word or conduct, in a
way a reasonable person would understand, that she wanted to and did stop fighting.
(CALCRIM No. 3471.) The trial court’s proposed instructions did not include this
principle.
       The court’s analysis and proposed instructions here were flawed. Assuming
defendant became the initial aggressor when she shot at Green through the car window,
that fact did not give Green an absolute right to kill her. Under CALCRIM No. 3471,
whether or not defendant had a legal right to respond depended on whether defendant’s
actions after Green exited his car reasonably signaled to him that she was willing to and
did stop fighting. If they did, and Green nevertheless responded with deadly force,
defendant regained her right to self-defense. In our view, whether defendant’s act of
stepping back sent such a signal was a factual question for the jury to decide, if the other
requisites of self-defense were satisfied. The court’s proposed instructions on self-
defense would have been erroneous because they did not include this relevant principle of
self-defense, and applied inconsistent standards of self-defense on the defendant and the
victim.
       Nevertheless, we think self-defense instructions were not warranted for a simpler
reason. Even if defendant did not lose her right to self-defense as a result of shooting into
Green’s car, no evidence was presented from which a jury could reasonably infer that
                                             29
defendant’s use of lethal force—shooting Green twice—was objectively, reasonably
necessary to defend against the danger posed to her by Green, who was unarmed.
Moreover, despite two opportunities to testify and one pretrial statement to the police,
defendant never said she feared for her life, or feared great bodily injury, only that she
feared he might hit her, or grab her, or do something, she was not sure what. For these
reasons, the refusal to give self-defense instructions was not error.

E.     The Trial Court’s Proposed Instructions on Imperfect Self-defense Were Also
       Incorrect in Several Respects, But the Refusal to Instruct on Imperfect Self-
       defense Was Not Error.
       “Imperfect self-defense is not a complete defense to homicide. However, it
negates malice aforethought and thereby reduces a homicide which would otherwise be
murder to voluntary manslaughter.” (People v. Curtis (1994) 30 Cal.App.4th 1337,
1354–1355; In re Christian S., supra, 7 Cal.4th at p. 773; People v. Flannel, supra,
25 Cal.3d at pp. 679–680.) To warrant instructions on imperfect self-defense in this case,
there must be evidence from which a reasonable jury could find or infer that defendant
(1) actually believed she was in imminent danger of being killed or suffering great bodily
injury at Green’s hands, and (2) actually believed the immediate use of deadly force was
necessary to defend herself from the danger posed by Green’s actions, (3) but “[a]t least
one of those beliefs was unreasonable.” (CALCRIM No. 571.) “Put simply, the trier of
fact must find an actual fear of an imminent harm. Without this finding, imperfect self-
defense is no defense.” (In re Christian S., at p. 783.)
       The trial court refused to instruct on imperfect self-defense because “[i]mperfect
self-defense does not apply when the defendant, through her own wrongful conduct, has
created the circumstances that justify her adversary’s use of force.” (In re Christian S.,
supra, 7 Cal. 4th at p. 773, fn. 1; People v. Frandsen, supra, 196 Cal.App.4th at p. 273.)
However, the defense is available when the victim’s use of force against the defendant is
unlawful, even when the defendant set in motion the chain of events that led the victim to

                                             30
attack the defendant. (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179–1180;
People v. Ramirez (2015) 233 Cal.App.4th 940, 947; People v. Frandsen, at p. 274;
People v. Randle (2005) 35 Cal.4th 987, 1003.) Just as the trial court failed to include the
exception to the limitation on self-defense expressed in CALCRIM No. 3471, the trial
court’s modified version of CALCRIM No. 571 did not include this important exception
to the limitation on imperfect self-defense.
       Nevertheless, we conclude no instruction was required here. Defendant shot into
the car in which the victim was sitting, shattering the window. This was a use of deadly
force, whether she missed or whether she intended only to get his attention. The victim
jumped out of his car, swore at her, reached for her, and tried to hit her. He was
unarmed, and he did not use deadly force before she shot him twice, killing him. Under
these circumstances, there was no factual question presented whether the victim’s
response was unjustified or over the top. It simply was not. Therefore, the trial court did
not err in refusing to instruct on imperfect self-defense. Also, it was not error to refuse
imperfect self-defense instructions on these facts, because there was no evidentiary basis
for a jury finding that defendant actually believed she was in imminent danger of being
killed or greatly injured by Green.
F.     The Trial Court’s Failure to Instruction on Provocation and Heat of Passion
       Manslaughter Was Error.
       Since 1872, statutory voluntary manslaughter has been defined as an unlawful
killing “upon a sudden quarrel or heat of passion” (§ 192, subd. (a), italics added) and the
malice required for murder has been implied “when no considerable provocation
appears” (§ 188). As a result, both subjectively felt heat of passion and objectively
reasonable provocation are needed to negate malice and reduce a murder to manslaughter
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1143), whether the heat of passion is
generated by a sudden quarrel or a series of provocative acts over a long period of time.
Thus, to warrant instructions on provocation and heat of passion, there must be

                                               31
substantial evidence in the trial record to support a finding that, at the time of the killing,
defendant’s reason was (1) actually obscured as a result of a strong passion; (2) the
passion was provoked by the victim’s conduct; and (3) the provocation was sufficient to
cause an ordinary person of average disposition to act rashly or without due deliberation
and reflection, and from this passion rather than from due deliberation or reflection.
(People v. Barton, supra, 12 Cal.4th 186, 201; People v. Lasko (2000) 23 Cal.4th 101,
108; People v. Beltran (2013) 56 Cal.4th 935, 951.) The passion aroused can be anger,
rage, or any violent, intense, highly wrought or enthusiastic emotion, except revenge.
(People v. Breverman, supra, 19 Cal.4th at p. 163.) “The provocative conduct may be
physical or verbal, and it may comprise a single incident or numerous incidents over a
period of time.” (People v. Le (2007) 158 Cal.App.4th 516, 528.)
       As People v. Beltran, supra, 56 Cal.4th 935, has recently clarified, in California
the law of provocation focuses on “emotion reasonableness” (i.e., “whether ‘the
defendant’s emotional outrage or passion was reasonable’ ”), not on “act reasonableness”
(i.e., “whether ‘a reasonable person in the defendant’s shoes would have responded or
acted as violently as the defendant did.’ ”) (Gruber, A Provocative Defense (2015)
103 Cal.L.Rev. 273, 275 & fns. 9, 10, 276, fn. 11, quoting Lee, Murder and the
Reasonable Man: Passion and Fear in the Criminal Courtroom (2003 NYU Press),
pp. 262–263; and citing People v. Beltran, at p. 945 [301 P.3d at p. 1136].) We assess
the emotional profile of the defendant and its connection to the reasonableness of her
reaction to the provocation rather than whether it was reasonable for her to kill under the
circumstances. As the Beltran court explained, the California test for sufficient
provocation, properly understood, has never been whether the victim’s provocation
would cause an ordinary person of average disposition to kill. (People v. Beltran, at
p. 942.) “Adopting a standard requiring such provocation that the ordinary person of
average disposition would be moved to kill focuses on the wrong thing. The proper focus
is placed on the defendant’s state of mind, not on his particular act. To be adequate, the
                                              32
provocation must be one that would cause an emotion so intense that an ordinary person
would simply react, without reflection. . . . [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. Framed another way, provocation is not
evaluated by whether the average person would act in a certain way: to kill. Instead, the
question is whether the average person would react in a certain way: with his reason and
judgment obscured.” (People v. Beltran, at p. 949.) “[P]rovocation is sufficient [when]
. . . it eclipses reflection. A person in this state simply reacts from emotion due to the
provocation, without due deliberation or judgment. If an ordinary person of average
disposition, under the same circumstances, would also react in this manner, the
provocation is adequate . . . .” (Id. at p. 950; italics added.)
       Relying on earlier antecedents, the Beltran court stressed that whether adequate
provocation and heat of passion have been shown are fundamentally jury questions,
because jurors, by virtue of their random selection and varied backgrounds and
occupations, are “ ‘much better qualified to judge of the sufficiency and tendency of a
given provocation, and much more likely to fix, with some degree of accuracy, the
standard of what constitutes the average of ordinary human nature, than the judge whose
habits and course of life give him much less experience of the workings of passion in the
actual conflicts of life.’ ” (People v. Beltran, supra, 56 Cal.4th at p. 948, quoting from
Maher v. People (1862) 10 Mich. 212, 222.)
       Apparently focused exclusively on the second and third shots during the
confrontation in the parking lot, the trial court refused to instruct on provocation and/or
heat of passion, either as a means of reducing murder to manslaughter, or reducing first
degree murder to second degree murder. The trial court reasoned such instructions were
inapplicable because Green’s actions after being shot at in his car were the predictable
conduct of a victim resisting the defendant’s conduct. (People v. Rich, supra, 45 Cal.3d


                                              33
1036.)7 In the court’s view, such instructions were also inapplicable because words and
simple assault are not legally sufficient provocation (People v. Gutierrez, supra,
45 Cal.4th 789) and because the provocation must come from the victim, not from the
defendant’s personal circumstances (People v. Steele, supra, 27 Cal.4th 1230).
       Defendant argues the trial court’s focus on the shooting alone was too narrow, and
that abundant evidence adduced at trial about the acrimonious relationship between
defendant and Green, particularly concerning their ongoing custody battle over their son,
provided a substantial evidentiary basis for voluntary manslaughter instructions premised
on a provocation/ heat of passion theory. We agree.
       In light of the concurrence, it is worth reiterating we review the evidentiary
support for an instruction “in the light most favorable to the defendant” (People v.
Millbrook, supra, 222 Cal.App.4th at p. 1137) and should resolve doubts as to the
sufficiency of the evidence to warrant instructions “in favor of the accused.” (People v.
Flannel, supra, 25 Cal.3d at p. 685.) Here, the evidence adduced at the first trial was
deemed sufficient to warrant provocation/heat of passion instructions. As a result, one of
the defense theories for a manslaughter verdict advanced at the first trial was that Green’s
repeated threats to take custody of their son away from defendant, which came to a head
the weekend when Green returned him in a diaper and without his regular clothing,
provoked in her emotions of intense fear, anxiety, hopelessness, depression and anger


7
 The court’s modified versions of CALCRIM Nos. 571 [Voluntary Manslaughter: Heat
of Passion] and 522 [Provocation: Effect on Degree of Murder] would have included the
following italicized language: “The defendant killed someone because of a sudden
quarrel or in the heat of passion if: 1. The defendant was provoked by the victim’s
conduct that was not a legal or predictable response to initial aggression by the
defendant.” (CALCRIM No. 570.) “[I]f the defendant was the initial aggressor, legal
and predictable conduct by a victim resisting the defendant’s aggression is not
provocation sufficient to reduce first degree murder to second degree murder, or to
reduce a murder charge to voluntary manslaughter. . . . Legal conduct includes a
victim’s self-defense as explained in Instruction 505A.” (CALCRIM No. 522.)
                                             34
that obscured her reason.8 Defense counsel argued the jury’s proper focus was on
defendant’s state of mind; when she drove to Pelican Loop and shot Green she was
consumed with thoughts about Green’s threats to take custody of her son away from her.9
The trial court was thus on notice that defendant’s provocation/heat of passion theory

8
  Some feminist scholars posit that jurists inevitably infuse objectively reasonable
provocation with male attributes and may fail to accommodate “the emotions that drive
women to kill—fear, depression, and sadness rather than anger. Additionally, the ways
in which women develop these emotions may differ from the ‘snapped’ scenario.”
[Fns. omitted]. Thus, “provocation law should accept a variety of emotions as
constituting ‘passion,’ and permit women to argue that provocation can develop over
time. [Fn. omitted.]” (Gruber, supra, 103 Cal.L.Rev. at p. 285 & fns. 80, 81, 82, 83.)
9
 Defense counsel argued: “[I]t should come as no surprise that what I tell you your
focus should be is going to be completely different from what [the prosecutor] has told
you your focus should be. [¶] And she said that this is about Mr. Green . . . . [¶] . . . It’s
not about Mr. Green. It’s about her. It’s about delving into her mind. . . . [S]he did kill
him, but there’s more to focus on than the act.”
         “[Y]ou have to go to that place where you have a person who is in a state where
she’s ready to kill herself but is thinking he’s going to take away my son. I’m going to
talk to him first. . . . [¶] But, again, at this point as she told you she wasn’t planning to
kill him, but’s [sic] what she was thinking is, I want to go out there and see—I need to go
and see if he’s serious about taking [my son] away from me, and I want him to know that
I’m serious about it. Does that make any sense? [¶] I asked her, this thing that she was
thinking at the time, no, it doesn’t make any sense to her now. But at the time—and
remember that note about her feelings, about how she had never embarrassed him . . . .
[¶] Think back, by the way, to the testimony of Natasha Griffith when I asked her . . .
[¶]. . . [¶] ‘Well, did he ever—did he ever criticize her parenting skills?’ [¶] ‘Yes.’ [¶]
And just think. Here’s a woman who loves her child, and she was cross-examined pretty
harshly on that, on the things that she was doing in being a bad mom. But every day she
gets up, she goes to work even though she’s depressed. She takes care of her kids. She
wants to kill herself. She keeps living, and she takes care of her kids. [¶] And she’s not
thinking when she goes out there and is thinking, I want him to know that I’m serious. I
don’t want him to laugh at me. l want him to know that I’m serious, and I want to know
if he’s serious about trying to take [my son] away from me. So she goes there and she
gets there.
         “She wasn’t thinking, I’m going to attack him, I’m going to kill him, I’m going to
catch him off guard. She was thinking up until the moment that it happened, I wanted to
talk to him and I wanted him to know that I was serious. And if she hadn’t been in this
state, it wouldn’t have happened.”
                                             35
hinged not on a “sudden quarrel” in the parking lot but on a provocatory course of
conduct on Green’s part relating to their child.
       At the second trial, considerable evidence was once again adduced to support this
theory. Persons other than defendant testified about the contentious relationship between
defendant and Green, much of which revolved around their son’s care and custody. The
evidence showed that sometime after Griffith moved in with Jackson and Green in the
spring of 2009, defendant would not let Jackson or Green see her son for several months.
In response, Green filed for custody of their son, with Jackson’s help. According to
Griffith, too, Green really wanted to get custody of his son and he took defendant to court
to get custody. The court battle ended in November or December 2009 with defendant
sharing legal custody with Green and keeping physical custody, with visitation for Green.
Nevertheless, defendant testified that in January 2010 Green again started threatening to
take custody of her son away from her and she feared he would actually do it one day.
Griffith corroborated that defendant’s fear was not unwarranted: she testified that since
November 2009, Green had been arguing with defendant. Griffith believed the
arguments were partly about the ongoing battle between defendant and Green over
custody, child support, and their son’s care. One issue was “[t]hat he wanted his son.”
Green accused defendant of not potty training their son. He was concerned because in
addition to not being potty trained, the child was terrified of water, unkempt, unable to
use a fork or spoon and “appear[ed] to be slightly autistic.” Green stressed to Griffith
that the child “needed to be checked out.”
       At the first trial, defendant testified it upset her that Green thought she was an
unfit mother. Green, along with her mother and sister, made her feel like a bad mother,
and that added to her stress. On Saturday, February 20, when Green came to pick up
their son, defendant and Green argued, according to defendant’s sister. According to
defendant’s mother, when Green brought the boy back in a diaper after the visit,
defendant was upset. Defendant testified at the second trial she was concerned when she
                                             36
saw her son in a diaper instead of a pull-up, because she feared he would regress in his
potty training. She was also concerned because the child was not wearing the clothes
she had packed for him; she was afraid Green was keeping the boy’s clothes at his house
“[s]o that when he kept him, he’d have clothes for him.”
       Defendant testified at both trials that on February 22, she was only going to talk to
Green about his threats to take her son away from her. At the second trial, she testified
Green threatened this “[a]ll the time,” sometimes daily, or when he came to get the child
every other week. His threats added to the stress she was already feeling.
       At both trials, defendant testified she took the gun when she went to talk to him
because she wanted him to know she was serious about “him not taking [my son] from
me.” “A lot of times he didn’t listen and he would laugh at me when I would tell him
stuff.” At the second trial she said, “I didn’t think he would listen to me any other way.”
At the first trial, she said she fired into the window of his car “to get his attention.” At
the second trial she said she did not know why she shot into the car; she “wasn’t
thinking,” not even about Green wanting to take her son away.
       At the hospital after her arrest, defendant told police inspectors she was angry
about his relationship with his new girlfriend and his failure to fulfill his responsibilities
with his son. She said “[i]t was just too much stress.”
       At the first trial, the prosecutor’s cross-examination of defendant suggested
defendant told two doctors she was angry before she shot Green. She admitted only that
she may have been upset. She also testified she was not angry as she fired two shots at
Green. She felt she was not in control of herself. At both trials, defendant testified she
did not remember driving from the motel to the victim’s home on Pelican Loop or
walking from her car to his.
       In our view, the evidence adduced at trial was sufficient to raise a factual question
whether defendant was acting under the heat of passion provoked by Green’s repeated
threats to take custody of her son away from her when she shot him. Cases dealing with
                                              37
provocation have considered behavior patterns that developed over a “provocatory”
period as opposed to sudden and heightened instigative situations. One exemplar of the
provocative period precedent is People v. Borchers (1958) 50 Cal.2d 321 (Borchers),
where the 45-year-old defendant realized his girlfriend, Dotty, age 29, was cheating on
him during their May-October relationship. “From the evidence viewed as a whole the
trial judge could well have concluded that defendant was roused to a heat of ‘passion’ by
a series of events over a considerable period of time: Dotty’s admitted infidelity, her
statements that she wished she were dead, her attempt to jump from the car on the trip to
San Diego, her repeated urging that defendant shoot her, [her son] and himself on the
night of the homicide, and her taunt, ‘are you chicken.’ ” (Id. at pp. 328–329.) “[T]he
evidence . . . supports a finding that defendant killed in wild desperation induced by
Dotty’s long continued provocatory conduct.” (Id. at p. 329, italics added.)
       Similarly, in People v. Bridgehouse (1956) 47 Cal.2d 406 (Bridgehouse), the
defendant filed for divorce after learning of his wife’s long-standing infidelity, and
obtained a restraining order prohibiting her from seeing her lover in the presence of their
minor child. After the restraining order was served, “Mrs. Bridgehouse told him that she
would fight his divorce action and would not hesitate to lie or use any other methods in
so doing; that she would kill him if he tried to take the children away from her.” (Id. at
p. 408.) However, she was not sure she wanted to leave her lover. The next day, the
defendant took their small son to his mother-in-law’s house. His wife’s lover was sitting
in the den of his mother-in-law’s house, reading. Either the defendant or the lover said,
“Hi, Bill.” Then the defendant shot him five or six times. (Id. at p. 409.) On these facts,
the Supreme Court reversed the defendant’s second degree murder conviction for
insufficient evidence, noting that in light of the wife’s affair and her refusal to either
agree to divorce or forgo seeing the victim, “the sight of the victim in his mother-in-law’s
home was a great shock to the defendant who had not expected to see him there or
anywhere else. . . . There was ample, uncontradicted, evidence that defendant was a man
                                              38
of excellent character; that he was mentally and emotionally exhausted and was white
and shaking. It appears to us, as a matter of law, that under the circumstances here
presented there was adequate provocation to provoke in the reasonable man such a heat
of passion as would render an ordinary man of average disposition likely to act rashly or
without due deliberation and reflection.” (Id. at pp. 413–414.)
       In another relevant case, People v. Berry (1976) 18 Cal.3d 509 (Berry), defendant,
age 46, killed his wife, age 20. The victim lived with the defendant from July 13 to July
26, and during the period she “continually provoked defendant with sexual taunts and
incitements, alternating acceptance and rejection of him. This conduct was accompanied
by repeated references to her involvement with another man; it led defendant to choke her
on two occasions, until finally she achieved her unconscious desire and was strangled.”
(Id. at p. 514.) Under Berry’s provocation evidence, even a cooling off period of 20
hours would not cancel the “long course of provocatory conduct.” (Id. at p. 516.)
       Finally, in People v. Wharton (1991) 53 Cal.3d 522 (Wharton), the defendant hit
his girlfriend in the head with a blunt instrument, killing her. He told police they were
both drinking heavily and arguing. She threw a book at him and he hit her while in a
rage. He then tried to kill himself by inhaling gas from the oven and taking pills. (Id. at
p. 543.) The defense presented evidence of the defendant’s volatile relationship with the
victim; weeks before the killing, the defendant confided to two psychiatrists that “tension
between defendant and Smith was building and . . . defendant felt he was losing control
of his anger toward Smith.” (Id. at p. 572.)
       The jury was instructed on basic principles of provocation and heat of passion
manslaughter, but the Wharton court held the trial court also should have given a
defense-requested instruction that “legally adequate provocation could occur over a
considerable period of time.” (Wharton, supra, 53 Cal.3d at p. 571.) From Borchers,
Berry and Bridgehouse, the Wharton court distilled the principle that “[t]he key element
is not the duration of the source of provocation but ‘ “whether or not defendant’s reason
                                               39
was, at the time of his act, so disturbed or obscured by some passion . . . to such an extent
as would render ordinary men of average disposition liable to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.” ’ ” (Id. at
pp. 569–570, quoting People v. Rich, supra, 45 Cal.3d at p. 1112.) “It was defendant’s
theory at trial that no single action on the part of the victim provoked the fatal blow but
that the book-throwing incident was merely the culmination of his pent-up frustration and
anger emanating from his ongoing dysfunctional relationship with the victim. In other
words, his defense theory at trial was that he killed after enduring provocatory conduct by
the victim over a period of weeks.” (Wharton, at p. 571; see also People v. Thompkins
(1987) 195 Cal.App.3d 244, 256–257 & fn. 7.)
       Against this factual and legal background, the trial court’s reliance on Steele,
Gutierrez, and Rich was misplaced. In People v. Steele, supra, 27 Cal.4th 1230, the
defense conceded there was “no evidence of provocation in the sense of a quarrel,” but
argued “provocation” was just a “shorthand expression” for killing while subjectively
under a “heat of passion” for which there was abundant evidence. (Id. at p. 1251.) The
Steele court rejected the argument. (Ibid.) Here, by contrast there was concrete evidence
of both provocation from the victim—Green’s repeated threats to take custody of their
son away from defendant—and her angry, confused response to those threats, both of
which were corroborated by prosecution witnesses.
       People v. Gutierrez, supra, 45 Cal.4th 789, is similarly inapposite in this situation.
Gutierrez did not involve a course of provocatory conduct by the victim over a
considerable period of time. On the other hand, numerous well-established precedents
recognize that “provocative conduct by the victim may be physical or verbal.” (People v.
Manriquez (2005) 37 Cal.4th 547, 583–584, citing People v. Valentine (1946) 28 Cal.2d
121, 138–139; Berry, supra, 18 Cal.3d at p. 515; People v. Lee (1999) 20 Cal.4th 47, 59;
People v. Beltran, supra, 56 Cal.4th at pp. 948–949.)


                                             40
       The concurrence agrees the evidence here shows “a course of provocation that
built up over time.” (Conc. opn. of Humes, J., at p. 70.) It also acknowledges the
Bridgehouse-Borchers-Berry-Wharton line of cases. But it disagrees that case law gives
rise to a need for either a manslaughter or second degree murder provocation instruction
here, because it views those cases as dependent upon a showing that “the built-up
provocation culminated in some event involving the killer and victim that . . . caused a
passionate or immediate reaction resulting in the killing.” (Conc. opn. of Humes, J., at
p. 70.) The concurrence points out that in Borchers, immediately before he shot her, the
girlfriend gave the defendant her gun and dared him to shoot her. But, as quoted earlier,
the Borchers court did not view that taunt in isolation as an act that triggered a sudden
quarrel. Rather, it viewed the evidence “as a whole” and treated the final taunt (final
because he killed her) as part of “Dotty’s long continued provocatory conduct.”
(Borchers, supra, 50 Cal.2d at pp. 328–329)
       Similarly, in Berry, the defendant fatally strangled his wife in an uncontrollable
rage when she started screaming and would not stop. (Berry, supra, 18 Cal.3d at
pp. 513–514.) Relying on Borchers, the Berry court ruled the defendant was entitled to a
manslaughter instruction on these facts, not because he immediately killed his wife upon
hearing her scream (nor upon her preceding statement, “I suppose you have come here to
kill me”), but because there was “ample evidence in the record to support the conclusion
that this passion was the result of the long course of provocatory conduct by Rachel.”
(Berry, at p. 516.) Likewise, the book-throwing incident in Wharton was not the reason
our Supreme Court ruled the trial court should have given defendant’s pinpoint
instruction that provocation can develop over a considerable period of time. We agree
with the concurrence that, standing alone, each of the instigative acts described above—
or the diaper and disappearing clothing discovery in this case—are too trivial to support
heat of provocation/passion instructions. However, we disagree that the provocatory
course of conduct theory of heat of passion/ provocation always requires the existence of
                                             41
some instigative final act, however trivial, before it is worthy of consideration by the
jury.
        The concurrence stresses that, in this case, “there still must be something—
certainly something more than just quietly sitting in one’s car, by one’s home, minding
one’s own business—that incites the passionate or immediate reaction that causes the
killing.” (Conc. opn. of Humes, J., at p. 72.) But, in Bridgehouse, the victim—wife’s
lover—was just sitting in defendant’s mother-in-law’s den, reading the paper, when
defendant shot him dead. Our Supreme Court reduced Bridgehouse’s second degree
murder conviction to voluntary manslaughter because the sum total of the circumstances
proved, as a matter of law, the existence of adequate provocation and heat of passion.
(Bridgehouse, supra, 47 Cal.2d at p. 414.) The concurrence questions the continued
vitality of Bridgehouse because it was the wife’s conduct that was provocatory, not the
victim’s, and the provocation must come from the victim; but we are not so sure. The
facts recited in the opinion make clear Bridgehouse considered the conduct of both his
wife and her lover reprehensible and provocatory. “There is testimony by defendant’s
neighbors that Bahr’s car was often seen standing all night, or the major portion thereof,
in front of the Bridgehouse home.” (Bridgehouse, at p. 408.) “The record also showed
that defendant’s wife and Bahr had a joint bank account which was known to defendant;
that one of defendant’s charge accounts had been used to buy a gift for Bahr; that
defendant had found Bahr’s clothing hanging in the closets of his home . . . . When
defendant was asked what his feeling was concerning Bahr, he answered: “I tried very
much to make a non-entity out of him in my own mind, in my mind’s eye. I knew from
various sources that he was not the kind of person whom I could consider an upright,
solid citizen.” (Bridgehouse, at p. 411.) In any event, to date Bridgehouse remains one
of the foundational cases establishing the provocatory course of conduct theory of
manslaughter in California, and it has never been questioned or disapproved on that


                                             42
ground by the California Supreme Court.10 We therefore think it retains precedential
value. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
       The concurrence does not consider Green’s act of bringing their son home one day
later than they had agreed, in a diaper, dressed in clothes other than those she sent with
him for the visit, a sufficiently provoking instigatory event because (1) it occurred on
Monday afternoon, February 22, and defendant shot Green shortly after midnight on
Tuesday, February 23; (2) it did not trigger in defendant a sufficiently passionate
emotion; and (3) even if it did cause a passionate response, “insufficient evidence was
presented that [Wright] was still under the influence of that emotion when she fired the
first shot.” (Conc. opn. of Humes, J., at p. 70, fn. 15.) But the evidence showed
defendant spent Sunday and Monday stewing in her own juices, debating whether to kill
herself or talk to Green first, then kill herself. In Berry, supra, 18 Cal.3d 509, our
Supreme Court did not consider the 20 hours defendant waited in the apartment for
Rachel’s return too lengthy a cooling off period to allow for jury consideration of a
manslaughter verdict, in light of the “long course of provocatory conduct” lasting two
weeks. (Berry, at p. 516). In our view, the question in this case—whether 8 hours
between the last provocatory act and the killing constituted sufficient time for passion to
subside and reason to return, after a provocatory course of conduct lasting several
months—like basic questions about the existence of provocation and its effect, if any,
upon the defendant’s mind—is a question of fact for the jury. (People v. Taylor (1961)
197 Cal.App.2d 372, 380; People v. Wickersham (1982) 32 Cal.3d 307, 327, overruled on
another point in People v. Barton, supra, 12 Cal.4th at p. 201.)
       The concurrence also does not consider the evidence here jury-worthy because

defendant “did not kill as an immediate response to provocatory conduct” (conc. opn. of

10
  People v. Blakeley (2000) 23 Cal.4th 82, 89 and People v. Lasko (2000) 23 Cal.4th
101, 110 disapproved dictum in Bridgehouse, supra, 47 Cal.2d 406 that voluntary
manslaughter requires an intent to kill.
                                             43
Humes, J., at p. 70, fn. 15). The concurrence stresses the immediacy of the response in
reliance upon the following statement in People v. Wickersham, supra, 32 Cal.3d at page
329: “[W]here the evidence of provocation would justify a jury determination that the
accused had formed the intent to kill as a direct response to the provocation and had acted
immediately, the trial court is required to give instructions on second degree murder
under this theory.” (Italics added.) The Wickersham court explained that the evidence of
heated words and a struggle in that case could have raised a reasonable doubt about
whether the defendant planned the killing in advance; or the jury could have found that
the defendant did not form the intent to kill until after the victim came toward her and
tried to grab the gun; or the jury could have found the defendant did not premeditate “but
rather acted upon a ‘sudden and unconsidered impulse[].’ ” (Wickersham, at pp. 329–
330.)
        Wickersham’s discussion relied on People v. Valentine, supra, 28 Cal.2d 121, for
the principle that “provocation which is not ‘adequate’ to reduce the class of the offense
[from murder to manslaughter] may nevertheless raise a reasonable doubt that the
defendant formed the intent to kill upon, and carried it out after, deliberation and
premeditation.” (People v. Valentine, supra, 28 Cal.2d at p. 132.) Valentine arguably did
not involve an immediate response to provocation, although it did involve an argument.
(Id. at pp. 127–129.) Defendant testified he went back to his house to get his gun
between the first and last confrontation with the victim, and shot the victim during an
argument after the victim swung at him. (Id. at p. 130.) Valentine labeled “manifestly
erroneous” an instruction that “[i]t is not less murder because the act is done suddenly
after the intent to commit the homicide is formed. It is sufficient that the malicious
intention precedes and accompanies the act of homicide.’ (Italics added.)” (Valentine, at
p. 134.) Thus, Valentine—and by extension Wickersham—stand, at most, for the
proposition that provocation can negate the inference of malice arising from an act done
immediately after the intent to kill is formed. Neither Valentine nor Wickersham, supra,
                                             44
32 Cal.3d 307, address provocation in the context of a long period of provocatory
conduct or, in our view, imposed an immediacy requirement in that scenario.
       Finally, with a nod to footnote 8 in the majority opinion, the concurring opinion
dismisses Borchers, Bridgehouse and Berry as cases based on “obliquely sexist
reasoning” and questions whether “if the defendants in these cases had been women” the
courts would have “so quickly concluded that ordinary people in their position would
have had their judgment eclipsed by passion due, in significant part, to their partners’
infidelity.” (Conc. opn. of Humes, J., at p. 72, fn. 16.) The concurrence concludes the
evidence here was not jury-worthy because “Green’s conduct before the shooting was
insufficient to prompt a passionate response in any reasonable person, woman or man, in
Wright’s circumstances.” (Conc. opn. of Humes, J., at p. 72, fn. 16.) But we think these
observations miss the mark. The question is not whether neither male nor female
killers—or both—should be able to have a jury consider whether an intimate partner’s
infidelities can provoke in them a killing rage, but whether this jury should have been
able to consider whether Green’s provocatory course of conduct, and the fear, depression,
and sadness, rather than rage and anger, that resulted from it, could have driven Wright to
act rashly, even though those provocative acts and emotions may be different from the
ones that may drive men to act rashly. (Gruber, supra, 103 Calif. L. Rev. at p. 285 &
fns. 80, 81, 82, 83; Borchers, supra, 50 Cal.2d at pp. 328-329.)11


11
   In the related context of battered women’s syndrome evidence (renamed “intimate
partner battering” to make it gender neutral (Evid. Code, § 1107, subd. (f)), case law
recognizes that supporting instructions on self defense are appropriate when the evidence
shows a woman killed her intimate partner after being battered by him over a long period
of time, even when the victim was asleep, as in People v. Aris (1989) 215 Cal.App.3d
1176, disapproved on another point in People v. Humphrey (1996) 13 Cal.4th 1073, 1089.
The objective reasonableness required for self defense is not all that different from the
objective reasonableness required for provocation, as our supreme court recognized in
People v. Enraca (2012) 53 Cal.4th 735 when it quoted Humphrey to illustrate the
reasonable person standard applicable to provocation. “The standard is not the reaction
                                             45
       As discussed above, the trial court was willing to instruct on provocation only if
the jury was also instructed that “if the defendant was the initial aggressor, legal and
predictable conduct by a victim resisting the defendant’s aggression is not provocation
sufficient to reduce first degree murder to second degree murder, or to reduce a murder
charge to voluntary manslaughter. . . Legal conduct includes a victim’s self-defense as
explained in Instruction 505A.” (Italics added.) As noted elsewhere, the trial court’s
view of a victim’s right to self-defense is not supportable; nor is the court’s cross-
pollination of the law governing provocation with “initial aggressor” rules. The refusal to
instruct on provocation without including the self-defense gloss was therefore error. In
addition, we conclude the kernel principle, that a resisting victim’s predictable conduct
cannot establish the provocation needed for voluntary manslaughter, had no application
to defendant’s theory of provocation in this case.
       The “predictable conduct” principle apparently arises from People v. Jackson
(1980) 28 Cal.3d 264, overruled on another point in In re Sassounian (1995) 9 Cal.4th
535, 545, footnote 6, and People v. Cromer (2001) 24 Cal.4th 889, 901, footnote 3. The
Jackson court distinguished the provocative course of conduct and heat of passion present
in Berry, supra, 18 Cal.3d 509 from the case before it, where the record indicated “that
defendant may have become enraged and brutally attacked and killed one of his elderly
victims because she awakened during the burglary and began to scream. No case has
ever suggested, however, that such predictable conduct by a resisting victim would
constitute the kind of provocation sufficient to reduce a murder charge to voluntary
manslaughter.” (Jackson, at p. 306.)
       In People v. Rich, supra, 45 Cal.3d 1036, the court applied the Jackson principle
to reject the assertion that “the victims’ resistance to being raped could have provoked



of a ‘reasonable gang member.’” (Enraca, at p. 759, quoting People v. Humphrey, at
p.1087.)
                                             46
defendant to explode.” (Id. at p. 1112; see People v. Dixon (1995) 32 Cal.App.4th 1547,
1554 [victim’s refusal to have sex after having been given drugs].)
        In People v. Balderas (1985) 41 Cal.3d 144, 196, the asserted provocation was the
victim’s resistance to being robbed. In People v. Blacksher (2011) 52 Cal.4th 769, 833,
the asserted provocation for shooting the victim was her predictable response of coming
to the aid of another shooting victim. In People v. Kanawyer (2003) 113 Cal.App.4th
1233, 1247, the asserted provocation came from the victim’s predictable conduct of
screaming for the intruder to leave his house and for his wife to call the police. In People
v. Souza (2012) 54 Cal.4th 90, 117, the victim was shot after he stood up from the couch
and reached for one of three unknown armed men who forcibly entered the house. In
People v. Thomas (2012) 53 Cal.4th 771, 781, the defendant placed his gun between the
victim’s eyes and threatened “to blow [his] brains out,” then shot the victim in a rage
after the victim grabbed for his gun. In each case, the victims’ resistance was to the
defendant’s felonious conduct that preceded the lethal assault. More importantly, in all
of these cases, no theory of provocation was presented at trial—no sudden quarrel, no
simmering response to a provocatory course of conduct—other than the victims’
predictable reactions to the defendants’ assaults; thus, there was no rational basis for a
jury finding of provocation. It is true that in both Blacksher and Kanawyer there was
evidence of a history of bad blood between the mentally ill defendants and their victims,
who were family members, but neither court tied its discussion of the predictable conduct
principle to that history or to the defense theory that the defendant killed his victim in a
heat of passion aroused by a history of provocative acts by the victim.
        None of these cases suggests the “predictable conduct” principle should preclude
the jury’s consideration of a defense theory that defendant’s heat of passion was ignited
by a series of provocative acts on the part of the victim over a considerable period of
time.


                                              47
       The concurrence does not buy defendant’s argument, raised for the first time in the
reply brief, that “ ‘[b]ased on the history of violence between the parties, heat of passion
may have come into play in [her] decision to fire the second and third rounds.’ ” (Conc.
opn. of Humes, J., at p. 73.) We wish to make clear, we do not buy it either. In the first
place, as discussed elsewhere, there was no admissible evidence of violence between the
parties. Furthermore, even if there were a factual predicate for it, the argument would be
barred by proper application of the predictable conduct cases discussed above. For that
reason, we think if the trial court’s proposed instruction had been limited to the fatal
confrontation in the parking lot, or accompanied by a Wharton instruction (Wharton,
supra, 53 Cal.3d 522) that provocation can develop over a considerable period of time,
the court’s instruction might have been acceptable.12 What was not acceptable was
depriving defendant of her only defense to murder, since her only other defense—
intoxication and mental disease—could not reduce murder to voluntary manslaughter.
(People v. Saille (1991) 54 Cal.3d 1103, 1117.) In sum, our independent review of the
law and the facts leads to the conclusion it was error for the court to refuse to give
requested manslaughter instructions premised on heat of passion/provocation in this case.

G.     The Court’s Failure to Instruct on Provocation and Second Degree Murder
       Was Error.
       It was also error to refuse a requested instruction that if the provocation is
insufficient to reduce a murder to manslaughter, it may nevertheless reduce the murder

12
  We are aware that amplifying instructions such as the one discussed in Wharton, supra,
53 Cal.3d 522 need only be given upon request. (People v. Guiuan (1998) 18 Cal.4th
558, 570.) In our view, the “predictable conduct” instruction contemplated by the court
here also was more akin to an amplifying instruction than to a general principle of law on
which the court must instruct sua sponte. “Even if the 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 this case, where there
was considerable evidence of provocatory acts over a period of time, a further amplifying
instruction would have been required to correctly set the parameters of the predicable
conduct principle.
                                             48
from first to second degree. “Provocation of a kind, to a degree, and under circumstances
insufficient to fully negative or raise a reasonable doubt as to the idea of both
premeditation and malice (thereby reducing the offense to manslaughter) might
nevertheless be adequate to negative or raise a reasonable doubt as to the idea of
premeditation or deliberation, leaving the homicide as murder of the second degree; i.e.,
an unlawful killing perpetrated with malice aforethought but without premeditation and
deliberation.” (People v. Thomas (1945) 25 Cal.2d 880, 903; People v. Carasi (2008)
44 Cal.4th 1263,1306; People v. Wickersham, supra, 32 Cal.3d at p. 329; People v.
Valentine, supra, 28 Cal.2d at p. 132.) “The existence of provocation and its extent and
effect, if any, upon the mind of defendant in relation to premeditation and deliberation in
forming the specific intent to kill, as well as in regard to the existence of malice (Pen.
Code, § 188), constitute questions of fact for the jury and they should have been so
advised.” (Thomas, at pp. 903–904; see CALCRIM No. 522; CALJIC No. 8.71.)
       The evidence adduced at trial about the long-simmering conflict between
defendant and Green over their son’s care and custody could have raised a reasonable
doubt about the existence of premeditation and deliberation, one of the two theories of
first degree murder on which the jury was instructed. Defense counsel properly objected
to the trial court’s revision of CALCRIM No. 522, which would have misdirected the
jury to focus its attention solely on defendant as the initial aggressor, rather than
permitting the jury consider whether defendant’s conduct was a rash response to Green’s
provocatory conduct with respect to their son.13



13
  We do not agree with the concurrence that “whether the evidence of Green’s conduct
after Wright shot into his car was sufficient to require a provocation instruction for the
purposes of a second degree murder is a closer call.” (Conc. opn. of Humes, J., at p. 75.)
In our view, any instruction based on the shots fired by Wright after Green got out of his
car would be subject to the predictable conduct rule of the Jackson-Rich line of cases,
regardless of her subjective state of mind.
                                              49
       The question remains whether the errors were prejudicial.14 Reversal is required
only if “ ‘the court, “after an examination of the entire cause, including the evidence,” is
of the “opinion” that it is reasonably probable that a result more favorable to [defendant]
would have been reached in the absence of the error.’ ” (People v. Wharton, supra,
53 Cal.3d at p. 571, quoting from People v. Watson (1956) 46 Cal.2d 818, 836; see
People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Rogers (2006) 39 Cal.4th
826, 868.) Under Watson, the court “may consider . . . whether the evidence supporting
the existing judgment is so relatively strong, and the evidence supporting a different
outcome is so comparatively weak,” that there is no reasonable probability the jury would
have decided differently had the trial court instructed on the lesser included offense.
(People v. Breverman, at p. 177.)
       The Attorney General argues any error in failing to instruct on heat of passion and
provocation was harmless because “the evidence of heat of passion due to provocation
was relatively weak. . . . [T]here was no direct evidence of appellant’s actual heat of
passion or that Green actually provoked appellant’s shooting.” She also argues any
failure to instruct was harmless by virtue of the overwhelming evidence of lying in wait,
and the jury’s lying-in-wait special circumstance finding.
       Although the evidence of defendant’s actual state of mind was indirect, there was
enough evidence from sources other than or in addition to defendant’s testimony from
which a properly instructed jury reasonably could have concluded that defendant in fact


14
  The Courts of Appeal are currently debating whether the erroneous failure to instruct
on provocation/heat of passion manslaughter is evaluated for prejudicial error under
People v. Watson, supra, 46 Cal.2d at p. 836, or Chapman v. California (1967) 386 U.S.
18, 24. (See People v. Thomas (2013) 218 Cal.App.4th 630, 633, 641–645; People v.
Millbrook, supra, 222 Cal.App.4th at pp. 1145–1146; People v. Peau (2015)
236 Cal.App.4th 823, 830–831.) In this case, unlike in Thomas, Millbrook, and Peau,
defendant has not argued Chapman is the correct standard of reversal. It would not be
appropriate for this court to weigh in on the debate when the issue has not be fully briefed
by the parties. (People v. Moye, supra, 47 Cal.4th 537, 558, fn. 5.)
                                             50
was angry with Green (despite her protestations to the contrary), “wasn’t thinking,” and
acted under the actual stress and provocation of Green’s threats to take custody of her son
away from her when she shot him. (People v. Wickersham, supra, 32 Cal.3d at p. 328;
People v. Barton, supra, 12 Cal.4th at p. 202.) If not sufficient to negate malice and
reduce the offense to manslaughter, it could well have been sufficient, especially in
combination with the evidence of intoxication and mental disease, to negate
premeditation and deliberation and reduce the offense to second degree murder.
However, the evidence defendant acted in a heat of passion was relatively weak
compared with the evidence that knowing Green’s work schedule and post-work routine,
she drove to the Pelican Loop parking lot and waited for him to come home, whereupon
she sneaked up on him unaware and shot him while he was in his car.
       Moreover, the jury was instructed in connection with premeditation and
deliberation that “[a] decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated.” (CALCRIM No. 521.) It was also
instructed on lying in wait as an alternative theory of first degree murder liability and
returned a true finding on the special circumstance allegation that she killed Green “by
means of lying in wait.” (CALCRIM No. 728.) “ ‘[L]ying in wait [is] the functional
equivalent of proof of premeditation, deliberation, and intent to kill.’ [Citation.] Thus, a
showing of lying in wait obviates the necessity of separately proving premeditation and
deliberation” (People v. Hardy (1992) 2 Cal.4th 86, 162) or intent to kill (People v. Ruiz
(1988) 44 Cal.3d 589, 614). Provocation cannot negate first degree murder by lying in
wait. (People v. Battle (2011) 198 Cal.App.4th 50, 75.)
       In this case, even if the jury theoretically could have found that provocation or
heat of passion negated premeditation and deliberation, its special circumstance finding
demonstrated beyond a reasonable doubt that it did not necessarily, or solely, rely on
premeditation and deliberation to find first degree murder. In addition, the jury was
instructed that intoxication and mental disease could be considered for the limited
                                             51
purpose of deciding whether, at the time of the shooting, defendant acted with intent to
kill, premeditation and deliberation, intended to make a surprise attack as required for
first degree murder on a lying in wait theory, and whether defendant intended to kill
Green by taking him by surprise as required for the special circumstance of lying in wait.
(CALCRIM Nos. 625, 3428.) Despite these instructions, the jury rejected the evidence
showing those mental states were affected by defendant’s mental impairments, strongly
suggesting the jury also would have rejected the evidence those mental states were
affected by heat of passion. In our view, the failure to give an instruction relating
provocation to second degree murder could not have been prejudicial in this case.
       To be sure, before there can be a lying in wait finding, there must be a murder
finding. “To prove first degree murder of any kind, the prosecution must first establish a
murder within section 187—that is, an unlawful killing with malice aforethought.
[Citations.] Thereafter, pursuant to section 189, the prosecution must prove the murder
was perpetrated by one of the specified statutory means, including lying in wait, or ‘by
any other kind of willful, deliberate, and premeditated killing.’ ” (People v. Stanley
(1995) 10 Cal.4th 764, 794.)
       Here, the jury was instructed it could consider intoxication and mental disease
“only in a limited way” that did not include their effects on implied malice. (People v.
Saille, supra, 54 Cal.3d at p. 1117.) Unlike intoxication and mental disease, provocation
and heat of passion can negate both implied malice and intent to kill. (People v. Lasko,
supra, 23 Cal.4th at pp. 108–111; People v. Blakeley, supra, 23 Cal.4th at pp. 89, 91;
People v. Breverman, supra, 19 Cal.4th at p. 154.) We are aware the first jury, which
heard virtually the same evidence and was instructed on provocation/heat of passion as
well as intoxication and mental disease, wrestled with implied malice in this case, and
ultimately was unable to agree on a murder verdict. However, from its questions, it
appears the first jury’s concerns may have been prompted by the connection between


                                             52
implied malice and intoxication and mental disease, rather than between implied malice
and provocation and heat of passion. (See fn. 2, ante.)
       This jury, however, must have believed the evidence showed defendant shot Green
with “a state of mind equivalent to deliberation or premeditation” in order to return a true
finding on the lying in wait special circumstance finding. (CALCRIM No. 728.) That
finding cannot be reconciled with a finding she also lacked malice because Green’s
conduct provoked in her an “emotion so intense that an ordinary person would simply
react, without reflection.” (People v. Beltran, supra, 56 Cal.4th at p. 949.) Also, our
Supreme Court has found that a lying in wait special circumstance finding renders the
failure to instruct on provocation/heat of passion manslaughter harmless error. (People v.
Cruz (2008) 44 Cal.4th 636, 665.) In short, while the jury should have been instructed on
provocation and heat of passion, after close examination of the evidence and the jury’s
findings, we cannot conclude it is reasonably probable a result more favorable to
defendant would have been reached in the absence of the error. (People v. Watson,
supra, 46 Cal.2d at p. 836; People v. Cruz, at p. 665 [intentional murder, perfecting
escape and lying in wait special circumstance findings “negate any possibility that
defendant was prejudiced from the failure to instruct on provocation/heat of passion or
unreasonable self-defense theories of manslaughter.”].)
H.     Exclusion of Green’s Prior Aggressive Conduct and Statements Was Not Error.
       The trial court excluded evidence that (1) Green told Dr. Ferrante he “pushed”
defendant when he found out she was pregnant in 2006 or 2007, and that in 2008 they
pushed each other when they were both drunk ; (2) Green told his mother, “I could kill
her,” when he learned she was pregnant, and (3) Green was nicknamed “Maniac” as a
teenager.
       A trial court’s evidentiary rulings admitting or excluding evidence are reviewed
for abuse of discretion, “ ‘ “and will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
                                             53
in a manifest miscarriage of justice.” ’ ” (People v. Geier (2007) 41 Cal.4th 555, 585.)
       Here, the trial court excluded the evidence of Green’s moniker from his teenage
years as too old (13 years had passed) and too ambiguous; his 2004 statement to his
mother because it was too remote, never communicated to defendant, and never acted
upon by Green; and the evidence of prior pushing incidents because defendant did not
testify (at the first trial) that the pushing incidents were on her mind when she shot Green.
       Evidence Code section 210 provides: “ ‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or hearsay declarant, having
any tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.” Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
       The excluded evidence here was either not relevant to any disputed issue in the
trial, or was insufficiently probative relative to its potential for prejudice and confusion of
issues. While the pushing incidents may have been relevant in the abstract to self-
defense and imperfect self-defense, defendant never indicated at either trial that the prior
pushing incidents played any part in the shooting. Similarly, the prior threat
communicated to Green’s mother was not relevant because it could not have instilled fear
of Green or informed defendant’s mental state at the time of the shooting if she did not
know of it. Finally, Green’s teenage moniker could only have contributed to speculation.
We see no abuse of discretion.
I.     Substantial Evidence Supports the Lying in Wait Special Circumstance Finding.
       “To prove lying in wait, the prosecution must prove there was a concealment of
purpose, a substantial period of watching and waiting for a favorable or opportune time to
act, and that immediately thereafter the defendant launched a surprise attack on an
unsuspecting victim from a position of advantage.” (People v. Gurule (2002) 28 Cal.4th
                                              54
557, 630.) Defendant argues there was insufficient evidence to support the lying in wait
special circumstance because while “there was a ‘waiting’ by appellant, there was little
evidence of ‘watching’: she appears to have been asleep.” Also, she argues there was
insufficient evidence of concealment. We disagree.
       “ ‘On appeal we 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—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.’ ” (People v. Gurule, supra, 28 Cal.4th
at p. 630.) “The same rule applies to the review of circumstantial evidence. ‘The court
must consider the evidence and all logical inferences from that evidence in light of the
legal definition of lying in wait. [Citation.] But it is the jury, not the appellate court,
which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]
Therefore, an appellate court may not substitute its judgment for that of the jury. If the
circumstances reasonably justify the jury’s findings, the reviewing court may not reverse
the judgment merely because it believes that the circumstances might also support a
contrary finding. [Citations.]’ ” (People v. Poindexter (2006) 144 Cal.App.4th 572, 577
[lying in wait theory of first degree murder].)
       In this case, there was ample evidence from which a reasonable jury could find all
the elements of the lying in wait special circumstance. There was evidence defendant
was still in love with Green (though she denied it) and jealous of his new relationship.
She bought a handgun, ammunition and a speed loader. She took those items with her
when she drove to Green’s address in Pelican Loop.
       She was familiar with his years-long routine of getting off work at midnight,
buying a pack of cigarettes and a beer, and sitting in his parked car drinking and smoking,
even though she claimed not to know whether that was still his routine. She left her
home in her mother’s car, instead of the one she usually drove, in plenty of time to rent a
motel room near her destination and get to Pelican Loop before Green returned home
                                              55
from work. Extensive surveillance video evidence established defendant’s mother’s car
arrived at the motel at 10:34 p.m., left the motel at 11:54 p.m., and drove through the
downtown area to Pelican Loop. Defendant waited over 45 minutes before Green’s car
arrived at Pelican Loop at 12:41 a.m. on February 23. He parked next to defendant’s
mother’s car. A reasonable jury could infer he was not expecting to see defendant at that
time and did not recognize her mother’s car, which defendant was counting on.
Defendant drove out of Pelican Loop with her car’s lights off about nine minutes later, at
12:50 a.m., the same time a neighbor heard shots and a car speeding away.
       From the ballistics and autopsy evidence, a rational jury could infer Green did not
recognize the car defendant was in, did not see defendant approach him, and the first shot
took him by surprise. He was shot twice more in short order when he got out of the car:
the neighbor heard one shot, a pause, then two more shots in quick succession.
       Other than defendant’s testimony that she fell asleep while she was waiting and
fortuitously woke up when Green arrived, there was no evidence about defendant’s state
of watchfulness during the 45 minutes she waited in her car. The jury was not required to
accept her version of the facts, and apparently did not do so. As defendant
acknowledges, 45 minutes is a “ ‘substantial period of waiting.’ ” (People v. Poindexter,
supra, 144 Cal.App.4th at p. 584.) Moreover, the nine-or-so-minute time span between
the time Green parked his car, took a sip of beer, and lit a cigarette—the beer was still in
his mouth when his body was found—and the time defendant left Pelican Loop, supports
a reasonable inference that defendant watchfully waited for the most opportune time to
surprise Green, and concealed her person and her purpose from him until she shot him.
“The required concealment need not be physical. It suffices if the defendant’s purpose
and intent are concealed by his actions or conduct, and the concealment of purpose puts
the defendant in a position of advantage, from which the fact finder may infer that lying
in wait was part of the defendant’s plan to take the victim by surprise.” (People v. Ceja


                                             56
(1993) 4 Cal.4th 1134, 1140.) Substantial evidence supports the jury’s special
circumstance finding.
J.     Jury Misconduct by Juror No. 12 Does Not Require Reversal.
       Defendant contends her state and federal constitutional rights to a fair trial by an
impartial jury were violated by jury misconduct. (U.S. Const., 6th & 14th Amends.; Cal
Const., art I, § 16; Pen. Code, § 1181, subd. 3.) In this case, after full briefing and an
evidentiary hearing at which the offending juror testified, the trial court found Juror
No. 12 had committed misconduct by posting and receiving comments about the trial on
Facebook, but also found the presumption of prejudice had been rebutted. The trial court
denied defendant’s new trial motion on that basis. “We accept the trial court’s credibility
determinations and findings on questions of historical fact if supported by substantial
evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a
mixed question of law and fact subject to an appellate court’s independent
determination.” (People v. Nesler (1997) 16 Cal.4th 561, 582.)
       1. Relevant Historical Facts
       On February 20 at 6:38 p.m., two hours after court adjourned until February 25,
and the day on which defendant testified, Juror No. 12 posted the following comment on
her Facebook page: “WHOA….defendent (?) or defendant (?) or whatever…took the
stand today. Velly interesting!” Several people “liked” and/or responded to the
comment. At 6:45 p.m., Mr. P. wrote: “He’s guilty. Hang him.” At 6:52 p.m. Juror
No. 12 wrote back: “I have to keep an open mind until next week!! They don’t know
how easy that is for a blonde . . . feel that breeze blowing thru every day.!!” At 7:07 p.m.
Ms. McK. posted: “which trial? Im [sic]watching the tearless Jody [sic] Arias describe
how she killed her boyfriend is self-defense . . . yea right . . . the only time she cried is
when she was discussing her own life . . . not one tear for him . . . psychopath. . . .” Juror
No. 12 responded at 7:18 p.m.: “I have been on one over in Richmond since 1/22.”


                                               57
       Several people responded to the length of the trial, or expressed interest in learning
about the case when it was over.
       The next day, Ms. McC. posted: “Hey Miss [Juror], are you off today or are you
FBing while in court? Do they let you keep your phones with you?” Juror No. 12
responded: “Yeah, my mind is already made up so I am FBing. LOL! Since we are
always off on Friday they are just going to wait until Monday to give us the case so we
got today off. I never have my phone with me but the 3 times I did, [I] thought it was off
& it rings!! Now when we go in, everyone looks at me & asks if my phone is off! I hand
it to someone else to double check it.!” Later, Juror No. 12 added: “Everyday but
Fridays to Richmond. Hopefully it will be done this next week!” Mr. McC responded:
“[Juror]. . . this is your social gold ticket! You’ll have a guaranteed invitation to every
meaningful social event in Antioch (. . . that includes the possum round-up and stomp.)
Nothing entertains like an inside look at the criminal just-ass system! Milk it, baby!”
       Juror No. 12 filed a declaration under penalty of perjury and also testified under
oath at the hearing on the motion for a new trial.
       In her declaration, Juror No. 12 averred she believed she was complying with the
court’s order to not share information about the case because she posted no information
she received in court, did not identify defendant, the nature of the case, or any evidence
or facts. She did not post anything on Facebook while court was in session. She did not
tell other jurors about her postings. Nothing that happened outside the courtroom
affected her decision in the case. She did not make up her mind about the verdict until
after she had discussed the case with the other jurors during deliberations. She
deliberated fully with the other jurors. When she posted her “[v]elly interesting”
comment she had not made up her mind and was careful not to post any details or
information about the case. She did not know what caused Mr. P. to post, “He’s guilty.
Hang him,” but she was careful not to give him any information. She explained her


                                             58
duties as a juror by replying she had to keep an open mind until the following week and
joking about being a blonde.
       She was joking when she said her mind was made up. She emphasized she was
joking by using “LOL,” which means “laugh out loud.” She was just letting off some
steam and being a “smartass”; she was not being serious. She did not realize her
comments were in violation of the court’s instructions.
       Juror No. 12’s testimony was consistent with her declaration. She testified she
recalled the judge telling the jury not to Facebook or share information about the case to
others. She thought she was being faithful to the court’s instructions by not discussing
the facts of the case on Facebook. She did not think stating the defendant had taken the
stand was discussing the case. She thought that fact was not a secret since there were
other people in the courtroom. She now realized she had not been using her good
judgment since her husband’s recent death. She now understood posting her first
comment on Facebook was inconsistent with her duties as a juror.
       “Velly interesting” was a reference to Arte Johnson’s skits on Rowan and Martin’s
Laugh In in the 1960’s. That comment was her first post about the trial and not a
response to another post. Mr. McC.’s posting about her social gold ticket was just
“nonsense banter” she did with a few people on Facebook to keep her spirits up; she did
not take it as having anything to do with her involvement in the trial. She lived in
Antioch; Mr. McC. did not. Mr. McC. was teasing her about Antioch being the kind of
place where the social scene included “possum stomps.” When she wrote “my mind’s
made up” she was joking, as indicated by “LOL,” which everyone knows means “laugh
out loud.” At that point, she did not know what the jury was supposed to be deciding,
since they were told in the very beginning that defendant admitted shooting the victim.
       She honestly did not even take in the comment about the “just-ass” system. At the
time, it made no impact on her.


                                            59
       Everything she put in her declaration was true. She apologized for “being so
stupid, for wasting everyone’s time.”
       2. The Trial Court’s Ruling
       The trial court issued a detailed ruling, indicating the court had “looked at every
single case in the United States relating to Facebook posts and misconduct.” The court
found Juror No. 12 had disobeyed the court’s order and engaged in juror misconduct, but
also found Juror No. 12 “very credible that she didn’t think that what she was doing was
wrong. [¶] So I don’t find that there was an intentional violation of the Court’s
instructions that would suggest a general disregard of her duties as a juror in this case.”
       Distinguishing People v. Cissna (2010) 182 Cal.App.4th 1105, on which the
defense relied, the court found the presumption of prejudice had been rebutted in
defendant’s case because the comments were isolated and “[n]othing whatsoever about
the merits of the case, about the juror’s impressions of the case, of why the defendant
decided to testify or didn’t decide to testify, or what it meant. There is nothing about
that. There is banter. There is silly banter. Most of it vacuous.”
       The court viewed the reference to the Jodi Arias case as unrelated to anything,
unlike the reference to O.J. Simpson in an unnamed case. The court viewed the other
responding Facebook posts as “generic cynical comments” that were not directed at the
evidence in defendant’s case, and were not extrajudicial information about defendant’s
case, “because the juror had not disclosed anything about those things.” The court
compared the responding comments to “a generic rant that one sees all the time in the
newspaper or hears at cocktail parties.”
       The court stated in conclusion: “Juror No. 12 never expressed any bias in any
statements that she made on Facebook. She never revealed that she had made up her
decision in any way, but a joking way in relation to whether she could Facebook in court.
[¶] She did not engage any of the Facebook friends with any discussions of the facts [or]
the merits. She said she was kidding when she [said she] made up her mind. When she
                                             60
said she made up her mind, she said that at the time with the ‘LOL.’ She confirmed that
she had to keep an open mind. She was credible as a witness here in court. Confirmed
that she hadn’t made up her mind because she didn’t understand the law well enough, and
why in a case where someone admitted the shooting that it would be a triable issue. [¶]
She needed to hear the law on that before she could make up her mind. That’s what she
said and I believe that. I think she’s a credible witness on that point, and I don’t believe
that there is any substantial likelihood that she rendered a verdict based on anything but
the evidence in this case. [¶] She got no external information, she did not reveal
anything about her thoughts about the case or what the case was about at all, and so I do
find that the presumption of prejudice has been rebutted.”
       3. Analysis
       “ ‘It is misconduct for a juror to consider material [citation] extraneous to the
record. [Citations.] Such conduct creates a presumption of prejudice that may be
rebutted by a showing that no prejudice actually occurred.’ [Citation.] ‘[T]he extraneous
material to which jurors are exposed must be inherently likely to prejudice a juror, or
there must be facts from which it can be concluded that there was substantial likelihood
of actual bias.’ ” (People v. Montes (2014) 58 Cal.4th 809, 895.) “[J]uror bias exists if
there is a substantial likelihood that a juror’s verdict was based on an improper outside
influence, rather than on the evidence and instructions presented at trial, and the nature of
the influence was detrimental to the defendant.” (People v. Cissna, supra,
182 Cal.App.4th at p. 1116.) “[T]he test for determining whether juror misconduct likely
resulted in actual bias is ‘different from, and indeed less tolerant than,’ normal harmless
error analysis. [Citations.] If the record shows a substantial likelihood that even one
juror ‘was impermissibly influenced to the defendant’s detriment,’ reversal is required
regardless of whether the court is convinced an unbiased jury would have reached the
same result.” (Id. at p. 1117.)


                                             61
       Defendant argues Juror No. 12’s failure to comply with the court’s instructions
casts serious doubts on her willingness to follow the court’s other instructions. We
disagree. (People v. Cissna, supra, 182 Cal.App.4th at p. 1118.) The trial court
expressly addressed this claim and decided, as a factual matter, that Juror No. 12 was
“very credible that she didn’t think that what she was doing was wrong. [¶] So I don’t
find that there was an intentional violation of the Court’s instructions that would suggest
a general disregard of her duties as a juror in this case.”
       The record supports the trial court’s decision. Juror No. 12 testified she did not
think reporting on Facebook that defendant had taken the stand was secret, or the same as
discussing the facts of the case, and she had been very careful not to say anything more
about the case in her followup posts. The total number of Facebook posts in the thread
were few. They were not daily or ongoing posts. The juror did not repeat the offense.
Plus, the juror explained that she had been suffering lapses in good judgment since her
husband’s recent death. There is no basis in the record for us to infer, contrary to the trial
court, that Juror No. 12 was a scofflaw when it came to court orders.
       Next, defendant argues the persons who posted comments in response to Juror
No. 12’s comment acted as unsworn “13th juror[s].” (People v. Cissna, supra,
182 Cal.App.4th at p. 1120.) We reject this claim because Juror No. 12 did not say
anything substantive about the facts of the case. Therefore, the other Facebook posters
had nothing substantive to say back to her about the case. We agree with the trial court
the posters’ comments about a notorious criminal trial and the criminal justice system had
more in common with newspaper editorials and cocktail party banter than with
“deliberative-type discussions.” (Ibid.)
       Finally, defendant argues that Ms. McK.’s post about the Jodi Arias trial “is
particularly troubling because it appears to contradict Juror No. 12’s claim in her
declaration that she did not discuss the facts of the case with anyone.” This argument
assumes defendant’s case shares certain similarities with the Jodi Arias case, and that
                                              62
Juror No. 12 discussed those asserted similarities in a prior, undisclosed Facebook post.
The record does not support these inferences. First, Juror No. 12 was questioned by the
court about her “[v]elly interesting” post. She testified nothing preceded that comment,
which was posted at 6:38 p.m. on February 20. She also testified the two pages of posts
before the court were “all of the statements [she] made on [her] Facebook page relating to
this trial.” The record suggest the trial court found Juror No. 12 credible on this point.
       Furthermore, the content and timing of Ms. McK’s responding post about Jodi
Arias suggest she may have been watching some evening broadcast about the Arias case,
as she was posting her comment. At 7:07 p.m. Ms. McK. posted: which trial? Im [sic]
watching the tearless Jody [sic] Arias . . . . [italics added].” Moreover, Juror No. 12’s
response—“I have been on one over in Richmond since 1/22”—suggests she had not
already told Ms. McK. about serving as a juror in a trial, and conveyed no identifying
details. Again, we see no basis in the record to infer Juror No. 12 was lying when she
testified she had no Facebook communications about the trial other than the ones before
the court.
       Based on our independent review of the record, we conclude Juror No. 12’s
Facebook posts did not reveal she was biased against defendant, nor were the responding
posts likely to prejudice her as a juror. We conclude there was no substantial likelihood
that Juror No. 12’s verdict was based on an improper outside influence, rather than on the
evidence and instructions presented at trial, or that the nature of the influence was
detrimental to the defendant. Therefore, the trial court did not err in denying defendant’s
motion for a new trial based on juror misconduct.
                                      DISPOSITION
       The judgment is affirmed.




                                             63
                                 _________________________
                                 DONDERO, J.


I concur:



_________________________
MARGULIES, J.




A139881

                            64
HUMES, P.J., Concurring.
       Jennell Wright shot Le’Mar Green while he was sitting in his car, minding his own
business. The two had had no direct interaction for two-and-a-half days before the
shooting, and the only reason they were together at the time of the shooting was because
Wright drove herself to Green’s residence, parked her car outside, and waited for him to
return home from work. The majority concludes that the trial court erred by not giving
heat-of-passion and provocation instructions because of the evidence presented about the
estranged couple’s acrimonious history, which included conflicts about child rearing and
custody. According to the majority, Wright could have shot Green in a heat of passion or
without premeditation as a result of provocation that “developed over a ‘provocatory’
period.” Although I agree that a course of provocatory conduct can give rise to the need
for such instructions in some circumstances, I disagree that those circumstances are
present here. I therefore do not believe the trial court erred.
       The duty to instruct on the heat-of-passion form of voluntary manslaughter or to
give “a [requested] pinpoint instruction on the effect of provocation” on the degree of
murder arises when substantial evidence is presented to support such an instruction.
(People v. Ward (2005) 36 Cal.4th 186, 214; People v. Breverman (1998) 19 Cal.4th 142,
162.) Only the “bare legal sufficiency”—not the weight—of the evidence is considered.
(Breverman, at p. 177.) Still, “ ‘the existence of “any evidence, no matter how weak”
will not justify instructions on a lesser included offense [or a pinpoint instruction on
provocation], [and] such instructions are required [only] whenever [the] evidence . . . is
“substantial enough to merit consideration” by the jury.’ ” (People v. Moye (2009)
47 Cal.4th 537, 553, italics in original; People v. Marshall (1997) 15 Cal.4th 1, 39.)
       Substantial evidence of provocation may require jury instructions on voluntary
manslaughter, the effect of provocation on the degree of murder, or both, depending on


                                              65
the nature of the provocation. For a killing to be reduced to voluntary manslaughter, both
“ ‘provocation and heat of passion must be affirmatively demonstrated.’ ” (People v.
Steele (2002) 27 Cal.4th 1230, 1252, italics in original; see also Pen. Code, §§ 188, 192,
subd. (a).) First, there must be evidence that the defendant actually killed in a heat of
passion. (People v. Beltran (2013) 56 Cal.4th 935, 951.) This subjective component is
not met “[i]f sufficient time has elapsed for one’s passions to ‘cool off’ and for judgment
to be restored.” (Ibid.) Second, there must be evidence of provocation that would have
“render[ed] an ordinary person of average disposition [in the defendant’s position] ‘liable
to act rashly or without due deliberation and reflection, and from this passion rather than
from judgment.’ ” (Id. at pp. 956-957.) The provocation “must be caused by the victim
[citation], or be conduct reasonably believed by the defendant to have been engaged in by
the victim.” (People v. Lee (1999) 20 Cal.4th 47, 59.) The objective test for adequate
provocation is not whether the victim’s conduct would have moved an ordinary person to
kill but whether it “would cause an emotion so intense that an ordinary person would
simply react, without reflection. . . . [T]he anger or other passion must be so strong that
the defendant’s reaction bypassed [his or her] thought process to such an extent that
judgment could not and did not intervene.” (Beltran, at p. 949, italics in original.) A
person who kills with such a state of mind “lacks malice and is guilty not of murder but
of the lesser offense of voluntary manslaughter.” (People v. Lasko (2000) 23 Cal.4th
101, 108.)
       When evidence of some provocation is presented, but it is insufficient to support a
conviction of voluntary manslaughter because the provocation “would not [have caused]
an average person to experience deadly passion” (People v. Hernandez (2010)
183 Cal.App.4th 1327, 1332), a killing may still be reduced from first to second degree
murder if the provocation “played a role in preventing the defendant from premeditating
and deliberating.” (People v. Rogers (2006) 39 Cal.4th 826, 880.) For an instruction to
be required on provocation’s effect on the degree of murder, “the evidence of provocation
                                             66
[must be sufficient to] justify a jury determination that the accused had formed the intent
to kill as a direct response to the provocation and had acted immediately,” i.e., without
premeditation or deliberation. (People v. Wickersham (1982) 32 Cal.3d 307, 329, italics
added.) Unlike the provocation required to reduce a killing to voluntary manslaughter,
which objectively must have been sufficient to have caused an ordinary person to react
without reflection, the provocation required to reduce a killing to second degree murder
need only have “preclude[d] the defendant from subjectively deliberating or
premeditating.” (Hernandez, at p. 1332, italics added; People v. Fitzpatrick (1992)
2 Cal.App.4th 1285, 1295-1296 [rejecting argument that “jury must apply an objective
standard of provocation to reduce first degree murder to second degree murder”]; see also
People v. Ward, supra, 36 Cal.4th at p. 215 [“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”].)
       Applying these legal standards in this case, the questions we must resolve are
(1) whether a heat-of-passion instruction was required for voluntary manslaughter
because a reasonable jury could have concluded that Green’s actions aroused in Wright a
passion that would have eclipsed the judgment of an ordinary person (People v. Beltran,
supra, 56 Cal.4th at p. 950) and (2) whether a provocation instruction for second degree
murder was required because a reasonable jury could have concluded that Green’s actions
caused Wright to form an intent to kill upon which she acted immediately, i.e., without
premeditation. (People v. Wickersham, supra, 32 Cal.3d at p. 329.) To answer these
questions, we need to consider two sets of facts. The first set, which includes the facts
relied upon by the majority in reaching its conclusions, is the “abundant evidence
adduced at trial about the acrimonious relationship between [Wright] and Green,
particularly concerning their ongoing custody battle over their son.” The second set is
the events between the shot Wright fired into Green’s car and the shots she fired that
killed Green. I therefore turn to examine both sets of facts.
                                             67
       A.     The Couple’s Acrimonious Relationship and Conflicts About Their
              Child’s Custody and Rearing.
       There is no question that plenty of evidence was presented that Wright and Green
had a relationship marked by disagreements and conflict, including evidence that Wright
was specifically angered by Green’s relationship with his new girlfriend and his
perceived failure to fulfill his parental responsibilities. But this evidence, in my view,
does not constitute substantial evidence upon which a reasonable jury could have
concluded that Green’s conduct was sufficiently provocatory to have either roused in an
ordinary person a passion eclipsing judgment or caused Wright to kill immediately,
without premeditation.
       Green and Wright’s last face-to-face interaction before the shooting was when
Green picked up their child from Wright’s home on Saturday, February 20. At the first
trial, Wright testified that she and Green did not argue then. Wright’s sister Joann,
however, told the police that at that time, “ ‘[Wright] was just real talking nasty to
[Green] and trying to provoke him to say stuff.’ ” Joann remembered thinking that she
hoped Green did not say anything to Wright because, if he were to do so, the couple
would argue. No other evidence was presented about any conflict between Wright and
Green at the time Green picked up their child or during the rest of the weekend.
       Two days later, at around 2:30 p.m. on Monday, February 22, Green returned the
child to Wright’s residence, but the two adults had no contact then because Wright was
out running errands. The exact time that Wright returned home is unclear, but it was
sometime before 5:00 p.m. She testified that when she arrived, she became “concerned”
because the child was wearing a diaper instead of a pull-up. She was also “concerned”
that he was wearing clothes she had not bought for him and that the clothes she had
packed were not in his bag, making her think that Green was keeping them as part of a
plan to take their child away from her. Joann characterized Wright as being “upset,” but



                                             68
there is no evidence that the child’s appearance provoked an emotion any more intense
than that.
       Hours later, around 10:00 p.m., Wright left her residence, drove around on the
freeway, and checked into a motel near Green’s residence in Pittsburg. She had been
drinking and was contemplating suicide, but she testified that she also “wanted to talk to
[Green] about his threats [to take their child] away from [her]” and headed to Pittsburg
for that reason. She denied, however, that she was thinking about killing Green. After
drinking more alcohol, taking “a couple of sips” of antifreeze, and taking Vicodin “to
start the process of killing [herself],” Wright fell asleep at the motel.
       She eventually woke up and left the motel, still feeling that she needed to talk to
Green about his threats to take their child. She drove to Green’s residence, parked her
car, drank more alcohol, and fell asleep again. When she woke up, Green had returned.
She waited another five minutes, got out of her car, and approached Green’s car.
       Then, around 12:50 a.m. on February 23, Wright fired a shot into the driver’s-side
window, shattering it. The evidence conflicts as to whether Green saw her approach and
asked her what she was doing there, a story she recounted to the police but later denied,
or whether, as she testified, she shot at him immediately after he began to turn his head.
Her testimony about her motive for firing the first shot was also contradictory, but she
specifically denied that she was intending to kill Green, thinking of his threat to take their
child, or otherwise feeling angry or upset.
       In my view, nothing in the evidence up to this point could have allowed a
reasonable jury to conclude that the judgment of an ordinary person would have been
eclipsed by passion or that Wright formed an intent to kill upon which she immediately
acted in response to provocation by Green. Days had passed since the two had had any
face-to-face interaction—a period in which the only person potentially being provocative
was Wright; hours had passed since Wright had returned home and became “upset” upon


                                              69
seeing their child; and Green was doing nothing except sitting in his car when she
approached and shot at him.15
       The majority points to a line of decades-old cases holding that provocation need
not arise from a “sudden and heightened instigative situation[]” but can build up over a
period of time. None of these cases is controlling here, and they do not stand for the
proposition, suggested by the majority’s opinion, that people can exist in a prolonged
passionate state about a bad relationship and be entitled to a heat-of-passion instruction
when tried for killing a former partner whom they seek out or happen upon. It is true that
the evidence in these cases showed, as the evidence shows here, a course of provocation
that built up over time. But in these cases, unlike here, the built-up provocation
culminated in some event involving the killer and victim that—even if insufficient on its
own to have necessitated a heat-of-passion or provocation instruction—caused a
passionate or immediate reaction resulting in the killing.
       Three of the cases involved a killing that occurred as the defendant and victim
were actively fighting. People v. Borchers (1958) 50 Cal.2d 321 held that the defendant
could have killed his girlfriend in a heat of passion roused by a series of events, including
his girlfriend’s admitted infidelity, remarks about wishing to be dead, attempt to jump
from a moving car, and repeated urgings for him to kill her. (Id. at pp. 328-329.)

15
   The majority recognizes that “the last provocatory act” possible was Green’s drop-off
of their child on Monday afternoon. It contends that heat-of-passion and provocation
instructions were nevertheless required because “the evidence showed [Wright] spent
Sunday and Monday stewing in her own juices” and the jury was entitled to determine
whether there was a sufficient cooling-off period or whether the provocation prevented
Wright from killing with premeditation. But I view the passage of time between the
drop-off and the killing as significant for two reasons. First, even if the drop-off caused a
passionate response in Wright, insufficient evidence was presented that she was still
under the influence of that emotion when she fired the first shot. Second, even if eight or
so hours is not long enough to establish as a matter of law that Wright did not act in a
heat of passion, it is long enough to establish as a matter of law that she was not entitled
to a provocation instruction because she did not kill as an immediate response to
provocatory conduct.
                                             70
Immediately before the killing, the victim taunted the defendant by giving him a gun and
saying, “ ‘Go ahead and shoot, what is the matter, are you chicken[?]’ ” (Id. at p. 326.)
Similarly, People v. Berry (1976) 18 Cal.3d 509 held that a husband who killed his wife
could have been roused to a heat of passion by a course of conduct, including his wife’s
sexual taunts and incitements, alternating acceptance and rejection of him, and repeated
references to involvement with another man. (Id. at p. 516.) As in Borchers, the victim
did something to provoke the defendant immediately before the killing: she asked him if
he had come to their apartment to kill her, started screaming even though he said he
wanted only to talk, and “struggled” with the defendant after he tried to quiet her. (Berry,
at p. 514.) Finally, in People v. Wharton (1991) 53 Cal.3d 522, the defendant killed his
girlfriend by hitting her with a blunt instrument after she threw a book at him during a
drunken argument. At trial, the defendant’s theory was that “no single action on the part
of the victim provoked the fatal blow but that the book-throwing incident was merely the
culmination of [the defendant’s] pent-up frustration and anger emanating from his
ongoing dysfunctional relationship with the victim.” (Id. at p. 571.) The court concluded
that the jury should have been instructed that “legally adequate provocation could occur
over a considerable period of time.” (Ibid.)
       In the final case, People v. Bridgehouse (1956) 47 Cal.2d 406, the defendant’s
wife admitted to the defendant that she had been unfaithful and often discussed the affair
with him. (Id. at pp. 407-408.) The defendant sought a restraining order to prevent her
from associating with her lover in the presence of her and the defendant’s young son. (Id.
at pp. 408-409.) A few days later, the defendant shot and killed the lover when the
defendant arrived at his mother-in-law’s home with his son and unexpectedly came upon
the lover, who was living there. (Id. at p. 409.) The court concluded that these
circumstances constituted “adequate provocation to provoke in the reasonable man such a
heat of passion as would render an ordinary man of average disposition likely to act
rashly or without due deliberation and reflection [citation].” (Id. at pp. 413-414.)
                                               71
       The continued vitality of People v. Bridgehouse, supra, 47 Cal.2d 406 is dubious
since it was the wife’s conduct, not the victim’s, that was provocatory, and the defendant
specifically testified that he did not “resent[]” the victim or “fe[el] angry” toward him. 16
(Id. at pp. 411-412; cf. People v. Lee, supra, 20 Cal.4th at p. 59 [provocatory conduct
“must be caused by the victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim”].) But even if a course of provocatory
conduct by a spouse that culminates in the shock of seeing the spouse’s lover in an
unexpected place is sufficient provocation to reduce the killing of the lover to voluntary
manslaughter, what happened here is not analogous: there is absolutely no evidence that
Green did anything to spark an emotional response from Wright before she shot into his
car.
       I have no quarrel with the majority that “ ‘long continued provocatory conduct’ ”
matters in evaluating whether a heat-of-passion instruction must be given (italics
omitted), but in my view there still must be something when the killing occurs—certainly
something more than the victim’s just quietly sitting in his car, by his home, minding his
own business—that stimulates the passionate emotion or immediate response of the
killer. My reading of the cases relied upon by the majority is that they make the simple
and reasonable point that the effect of a victim’s actions before the killing must be
considered in the context of any course of provocatory conduct by the victim. This
means that an act by the victim that, standing alone, would be insufficient to require


16
   Like People v. Borchers, supra, 50 Cal.2d 321 and People v. Berry, supra, 18 Cal.3d
509, People v. Bridgehouse, supra, 47 Cal.2d 406 includes obliquely sexist reasoning. If
the defendants in these cases had been women, would the courts have so quickly
concluded that ordinary people in their position would have had their judgment eclipsed
by passion due, in significant part, to their partners’ infidelity? The majority suggests in
footnote 8 that passion may develop and be expressed differently in women. But even if
this is so, I would still conclude that Wright was not entitled to a heat-of-passion
instruction because Green’s conduct before the shooting was insufficient to prompt a
passionate response in any reasonable person, woman or man, in Wright’s circumstances.
                                              72
instructions on heat of passion or provocation, such as throwing a book (see People v.
Wharton, supra, 53 Cal.3d at p. 571), might be sufficient when viewed as the culmination
of a history of ongoing conflict and simmering emotions. But by not requiring evidence
of any instigative circumstances, the majority essentially holds that such instructions
must be given whenever evidence is presented that the killer and victim had a troubled
relationship involving charged issues, such as infidelity or child custody. I do not believe
that such an expansive holding is either compelled or proper—particularly when, as here,
the killer effectively ambushes the victim. (See, e.g., People v. Carasi (2008) 44 Cal.4th
1263, 1273-1276, 1306-1307 [no substantial evidence of provocatory conduct by victim
requiring heat-of-passion and provocation instructions where defendant stabbed ex-
girlfriend after long period of custody and child-support disputes involving their son].)
       B.     Green’s Conduct Between the First Shot and the Fatal Shots.
       Since the evidence of Wright and Green’s acrimonious relationship and
disagreements about their child up to the time Wright shot into Green’s car would not
have allowed a reasonable jury to find provocation sufficient to reduce the killing to
voluntary manslaughter or second degree murder, I turn to whether sufficient evidence of
provocation was presented based on Green’s conduct between the first shot and the
deadly shots. These facts are not the basis for the majority’s conclusion that heat-of-
passion and provocation instructions were required, but they are among the facts relied
upon by Wright. She argues that “[c]ritical issues for the murder charge were whether or
not Green launched a deadly attack on [her] after the window was shot out and whether
he needed to pursue such an attack if [she] was, as she testified, backing away. Based on
the history of violence between the parties, heat-of-passion may have come into play in
[her] decision to fire the second and third rounds.” I do not buy it.
       Wright testified that in response to the shot into his car, Green jumped out, leaned
forward and tried to grab her, swore at her, and swung a fist at her. She testified that in
those moments she was afraid but not angry. To conclude that Green’s reaction to having
                                             73
been shot at was sufficiently provocative to require a heat-of-passion instruction turns
provocation principles on their head. After all, who provoked whom here? Green’s
advances on Wright after she shot at him were perfectly predictable and eminently
justifiable. And no evidence was presented that Wright fired the fatal shots for any
reason other than Green was advancing toward her.
       A line of cases leaves little doubt that the evidence of Green’s actions after Wright
shot into his car was insufficient to require a heat-of-passion instruction. In People v.
Jackson (1980) 28 Cal.3d 264, our state Supreme Court held that evidence “that [the]
defendant may have become enraged and brutally attacked and killed one of his elderly
victims because she was awakened during the burglary and began to scream” was
insufficient to show that the defendant killed in a heat of passion caused by sufficient
provocation. “No case has ever suggested . . . that such predictable conduct by a resisting
victim would constitute the kind of provocation sufficient to reduce a murder charge to
voluntary manslaughter.” (Id. at p. 306.) The court applied the same principle in
People v. Rich (1988) 45 Cal.3d 1036, where it held “that the victims’ resistance to the
criminal act of rape [was] ‘predictable conduct’ and [was] insufficient provocation to
negate malice” (id. at pp. 1112-1113), and in People v. Souza (2012) 54 Cal.4th 90,
where it held that the victim’s rising from the couch and reaching for one of the
defendants, “one of three armed unknown men bursting into the home[,] constituted
predictable and reasonable conduct by a victim resisting felonious assault, and not
provocation sufficient to merit a manslaughter instruction.” (Id. at pp. 116-117; see also
People v. Johnston (2003) 113 Cal.App.4th 1299, 1313 [no heat-of-passion instruction
warranted where the “[d]efendant was ‘culpably responsible’ for [his] altercation” with
the victim; having provoked a fight with the victim, the defendant could not “be heard to
assert that he was provoked when [the victim] took him up on the challenge”], italics in
original.) Indeed, even if Wright had not provoked Green first by shooting at him, no
evidence indicated that Green had a gun or any other weapon when he advanced on
                                             74
Wright. Thus, and at most, he threatened Wright with nothing more than an assault,
which is insufficient provocation to warrant a heat-of-passion instruction—even where
there is evidence that the defendant and victim have a pre-existing acrimonious
relationship. (People v. Gutierrez (2009) 45 Cal.4th 789, 798-799, 825-827.)
       Whether the evidence of Green’s conduct after Wright shot into his car was
sufficient to require a provocation instruction for purposes of second degree murder is a
closer call. In People v. Rich, supra, 45 Cal.3d 1036, our state Supreme Court held that
analogous evidence was insufficient to require even a provocation instruction, not just a
heat-of-passion instruction. (Id. at pp. 1112-1113.) But in determining whether a
victim’s resistance is provocation sufficient to reduce a killing to second degree murder,
the court stated that “the inquiry is whether the ordinary person would ‘explode’ because
the victim resisted” and a “defendant’s subjective response to . . . victims’ resistance” is
irrelevant. (Id. at p. 1112.) This statement is at odds with the cases discussed above,
including other Supreme Court decisions, establishing that the provocation needed to
reduce a killing to second degree murder is judged only subjectively. Moreover, it is
unclear whether Rich’s holding on the provocation instruction was based on the principle
that a victim’s predictable resistance never suffices to reduce the degree of murder or on
the lack of evidence in that case that the victims had resisted. (See id. at pp. 1112-1113.)
       Unless People v. Rich, supra, 45 Cal.3d 1036 stands for the principle that a
victim’s predictable resistance can never constitute provocation sufficient to prevent a
defendant from deliberating and premeditating, it is plausible to suggest that a reasonable
jury here could have concluded, if it accepted Wright’s testimony, that Wright did not
form the intent to kill until Green advanced towards her, at which point she became
scared and immediately shot him. But we need not decide whether a provocation
instruction was required on this basis because Wright has not argued this point. In her
briefing, she argues that CALCRIM No. 522, the standard instruction on provocation’s
effect on the degree of murder, should have been given, but she incorrectly characterizes
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it as an instruction on voluntary manslaughter, exclusively addresses the legal standards
for voluntary manslaughter, and fails to discuss with any particularity how the evidence
could have supported a provocation instruction.
       Nor is such an argument the basis for the majority’s conclusion that a provocation
instruction was required. The majority concludes that “[t]he evidence adduced at trial
about the long-simmering conflict between [Wright] and Green over their son’s care and
custody could have raised a reasonable doubt about the existence of premeditation and
deliberation.” I cannot agree that this is a valid reason for concluding that the trial court
erred. For a provocation instruction to be warranted, a defendant must kill “immediately”
upon “form[ing] the intent to kill as a direct response to the provocation.” (People v.
Wickersham, supra, 32 Cal.3d at p. 329.) Here, there was no evidence upon which a
reasonable jury could have concluded that Wright shot Green immediately after forming
an intent to kill prompted by the couple’s acrimonious relationship.
       In my view, when a person ambushes a victim with deadly force (as Wright did),
the victim attempts an unsuccessful defense (as Green did), and the attacker responds to
the unsuccessful defense by killing the victim (as Wright did), the killer is not entitled in
an ensuing murder trial to have the jury instructed on heat of passion or provocation
simply because the two had an acrimonious relationship that included disputes about their
child. I disagree with the majority’s opinion to the extent it suggests otherwise.

                                           __________________________________
                                           Humes, P.J.




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Trial Court                                 Contra Costa County Superior Court

Trial Judge                                 Hon. Leslie G. Landau

Counsel for Defendant and Appellant         Dirck Newbury
Jennell Renee Wright                        By appointment of the Court of Appeal
                                            under the First District Appellate Project,
                                            Independent Case System

Counsel for Plaintiff and Respondent        Kamala D. Harris, Attorney General
People of the State of California           Dane R. Gillette and Gerald A. Engler,
                                            Assistant Attorneys General,
                                            Catherine A. Rivlin and Allen R. Crown,
                                            Deputy Attorneys General.




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