Filed 5/23/16 P. v. Rodriguez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069656

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1303718)

ROBERTO GUADALUPE RODRIGUEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Bernard J.

Schwartz, Judge. Affirmed.

         George L. Schraer for Appellant and Defendant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, A. Natasha Cortina, Alastair J. Agcaoili and Allison

Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted Robert Guadalupe Rodriquez of first degree murder (Pen. Code,

§ 187, subd. (a)) of his wife, Mary Jane Rodriguez, and found he personally used a

deadly weapon (a knife) in the commission of the offense. (Pen. Code, § 12022, subd.
(b).) The trial court sentenced Rodriguez to a total prison term of 26 years to life: 25

years to life for the first degree murder and one year for the deadly weapon enhancement.

Asserting that "provocation in the context of second degree murder has a technical

meaning peculiar to the law," Rodriguez contends the court committed federal

constitutional error by failing to instruct the jury sua sponte on that term's technical and

peculiar meaning. We reject the contention, and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In the early morning hours of April 11, 2013, Rodriguez stabbed his wife to death

with a large butcher knife. About 20 or 30 minutes later, he called 911 and told police to

come to his house. In police interviews, Rodriguez stated he had learned two or three

years earlier that his wife had been communicating and rendezvousing with other men

and had engaged in an affair with a man in Texas in particular. Rodriguez told the

investigator he believed his wife expected to take all of their money and wait for him to

die so she could be with other men. Though they had engaged in marital counseling,

Rodriguez had filed for divorce and began taking steps to protect himself financially.

       Rodriguez told the investigator that on the morning of April 11, 2013, he woke up

feeling angry and "stupid" that his wife had gone out to entice men the night before. He

went to their kitchen and got a knife, returned to their bedroom and stabbed her while she

struggled with him, explaining that he "went crazy." When asked what was going

through his head before he killed her, Rodriguez told the investigator, "Anger, . . . why

you keep doing this to me . . . why you just go away [sic], don't torture—I don't wanna



                                              2
say torcher [sic], but it's painful." Rodriguez agreed that before the murder he was "very

angry."

       The medical examiner found 25 separate stab wounds on the victim with several

potentially or individually fatal. Many of them were located to the left side of her body

and on her back. One went through the left side of her chest into her lung and heart.

That wound would have left the victim between three and five minutes to live; medical

intervention would not have saved her.

       Rodriguez, who had worked as a middle school wood shop teacher, presented

character witnesses in his defense, who testified they were shocked by the crime. The

principal at his school testified Rodriguez was a "calm, very patient, very quiet" teacher

who was never violent. Rodriguez's former brother-in-law who knew Rodriguez for 40

years testified that Rodriguez was trustworthy; he never saw him act violently and he was

not quick to anger. He testified that Rodriguez was not capable of hurting someone, and

such conduct was inconsistent with Rodriguez's character.

       The parties stipulated that in August 2012, Rodriguez and his wife had attended

marriage counseling sessions individually and together, and that the last social media

message between the victim and the Texas man occurred in April 2013. The court

admitted into evidence a letter that corroborated the victim had been communicating with

another man on the Internet.

       The trial court instructed the jury with CALCRIM No. 520 as to the elements of

murder and malice aforethought. It instructed with CALCRIM No. 521 as to murder and

first degree murder, respectively, including by telling the jury that a defendant is guilty of

                                              3
first degree murder if the People have proved he acted "willfully, deliberately, and with

premeditation"; that a defendant acts deliberately "if he carefully weighed the

considerations for and against his choice, and knowing the consequences, decided to kill"

and with premeditation "if he decided to kill before completing the acts that caused the

death"; and a "decision to kill made rashly, impulsively, or without careful consideration

is not deliberate and premeditated."1 The court then instructed the jury at the defense's

request with CALCRIM No. 522, regarding provocation, as follows: "Provocation may

reduce a murder from first degree to second degree and may reduce a murder to

manslaughter. The weight and significance of the provocation, if any, are for you to

decide. [¶] If you conclude that the defendant committed murder but was provoked,

consider the provocation in deciding whether the crime was first or second degree

murder. Also consider the provocation in deciding whether the defendant committed




1       The court instructed with CALCRIM No. 521 as follows: "The defendant is guilty
of first degree murder if the People have proved that he acted willfully, deliberately, and
with premeditation. [¶] The defendant acted willfully if he intended to kill. [¶] The
defendant acted deliberately if he carefully weighed the considerations for and against his
choice, and knowing the consequences, decided to kill. [¶] The defendant acted with
premeditation if he decided to kill before completing the act that caused the death. The
length of time the person spends considering whether to kill does not alone determine
whether the killing is deliberate and premeditated. The amount of time required for
deliberation and premeditation may vary from person to person and according to the
circumstances. [¶] A decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated. On the other hand, a cold, calculated
decision to kill can be reached quickly. The test is the extent of the reflection, not the
length of time. [¶] The People have the burden of proving beyond a reasonable doubt
that the killing was first degree murder rather than a lesser crime. If the People have not
met this burden, you must find the defendant not guilty of first degree murder, and the
murder would be of a second degree."
                                             4
murder or manslaughter." Rodriguez's counsel did not request clarification or

amplification of that instruction.

       The court also read CALCRIM No. 570, which defined the difference between

murder and voluntary manslaughter based on a sudden quarrel or the heat of passion, as

follows: "A killing that would otherwise be murder is reduced to voluntary manslaughter

if the defendant killed someone because of a sudden quarrel or . . . because of a heat of

passion.

       "The defendant killed someone because of a heat of passion if the following

elements are met:

       "One, the defendant was provoked;

       "Two, as a result of the provocation, the defendant acted rashly and under the

influence of intense emotion that obscured his reasoning or judgment;

       "And three, the provocation would have caused a reasonable person of average

disposition to act rashly and without due deliberation, that is, from passion rather than

from judgment.

       "Heat of passion does not require anger, rage, or any specific emotion. It can be

any violent or intense emotion that causes a person to act without due deliberation and

reflection.

       "In order for heat of passion to reduce a murder to voluntary manslaughter, the

defendant must have acted under the direct and immediate influence of provocation as I

have defined it. While no specific type of provocation is required, slight or remote

provocation is not sufficient.

                                             5
       "Sufficient provocation may occur over a short or long period of time. It is not

enough that the defendant simply was provoked. The defendant is not allowed to set up

his own standard of conduct. You must decide whether the defendant was provoked and

whether the provocation was sufficient.

       "In deciding whether the provocation was sufficient, consider whether a person of

average disposition in the same situation and knowing the same facts would have reacted

from passion rather than from judgment.

       "If enough time passed between the provocation and the killing for a person of

average disposition to cool off and regain his or her clear reasoning and judgment, then

the killing is not reduced to voluntary manslaughter on this basis.

       "The People have the burden of proving beyond a reasonable doubt that the

defendant did not kill as a result of a heat of passion. If the People have not met this

burden, you must find the defendant not guilty of murder."

       Defense counsel sought to modify CALCRIM No. 570 on grounds the instruction

shifted the burden to the defense to bring evidence reducing murder to voluntary

manslaughter. Rodriguez's counsel also sought a special instruction telling the jury that

the absence of heat of passion and provocation was an essential element of murder that

the prosecution had to prove beyond a reasonable doubt. The court rejected these

requests.

                                       DISCUSSION

       Rodriguez's sole contention on appeal is that the trial court reversibly erred under

federal constitutional standards by failing to instruct the jury sua sponte with the standard

                                              6
used for provocation in the context of second degree murder, which he asserts has a

technical or legal meaning relating to the effect that provocation has on the defendant's

subjective state of mind. He argues that under this standard, provocation applies even if

the conduct that provoked the defendant would not provoke a reasonable person or an

ordinary person of average disposition, and that because the term differs from the

ordinary definition and has a technical meaning peculiar to the law, the court had a sua

sponte duty to give an amplifying or clarifying instruction. According to Rodriguez, this

duty was particularly important where the court instructed the jury in detail on

provocation for purposes of voluntary manslaughter, giving rise to a danger that the jury

would give the term an incorrect meaning and making it unable to return a verdict for

second degree murder. In advancing these arguments, Rodriguez acknowledges that his

claims may appear to be undermined by People v. Mayfield (1997) 14 Cal.4th 668,

overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390; People v.

Hernandez (2010) 183 Cal.App.4th 1327 (Hernandez) and People v. Jones (2014) 223

Cal.App.4th 995, but he seeks to distinguish them on grounds they do not address the

specific issue he raises.

       The People concede that a trial court has a sua sponte duty to instruct the jury on

familiar words and phrases where the jury instructions use those terms in a technical,

legal sense. They argue the court had no such duty in this case because CALCRIM No.

522 uses the term provocation in the common, nonlegal sense of the word, and that

binding authority, including the above-referenced cases, should compel us to reject

Rodriguez's contentions and hold he forfeited them by failing to request clarifying

                                             7
instructions in the trial court. They further argue that reversal is unwarranted because

any purported error is harmless under the applicable state law standard of harmless error

or even the federal standard were that to apply, in view of the jury instructions given and

the strong evidence of Rodriguez's premeditation and deliberation. As we explain, we

agree with the People.

                 I. Standard of Review and Instructional Error Principles

       We review a claim of instructional error de novo. (People v. Posey (2004) 32

Cal.4th 193, 218; People v. Alvarez (1996) 14 Cal.4th 155, 217 [instructional error

reviewed independently as the underlying question is " 'one of law, involving as it does

the determination of . . . applicable legal principles' "]; People v. Riley (2010) 185

Cal.App.4th 754, 767.) A trial court has a duty to instruct the jury sua sponte on general

principles that are closely and openly connected with the facts before the court. (People

v. Gutierrez (2009) 45 Cal.4th 789, 824.) "[E]ven 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. [Citation.] Once the trial court adequately instructs the jury on the law, it has

no duty to give clarifying or amplifying instructions absent a request." (Hernandez,

supra, 183 Cal.App.4th at p. 1331.) Accordingly, " 'a party may not complain on

appeal that an instruction correct in law and responsive to the evidence was too general

or incomplete unless the party has requested appropriate clarifying or amplifying

language.' " (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) This "rule does not

apply when . . . the trial court gives an instruction that is an incorrect statement of the

law." (Id. at p. 1012.)

                                               8
       "In reviewing a claim that the court's instructions were incorrect or misleading, we

inquire whether there is a reasonable likelihood the jury understood the instructions as

asserted by the defendant. [Citation.] We consider the instructions as a whole and

assume the jurors are intelligent persons capable of understanding and correlating all the

instructions." (Hernandez, supra, 183 Cal.App.4th at p. 1332.)

                                 II. The Law of Homicide

       "First degree murder is an unlawful killing with malice aforethought,

premeditation, and deliberation [Citation.] Malice may be express (intent to kill) or

implied (intentional commission of life-threatening act with conscious disregard for life).

[Citation.] Second degree murder is an unlawful killing with malice, but without the

elements of premeditation and deliberation which elevate the killing to first degree

murder." (Hernandez, supra, 183 Cal.App.4th at p. 1332.) Thus, first degree murder

may be mitigated to second degree murder where premeditation and deliberation are

negated by heat of passion arising from provocation. (Ibid.) Provocation reducing first

degree murder to second degree murder "would not cause an average person to

experience deadly passion but it precludes the defendant from subjectively deliberating or

premeditating . . . ." (Ibid.; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296;

People v. Padilla (2002) 103 Cal.App.4th 675, 677-678.)

       If provocation causes an ordinary person to react with deadly passion, the crime is

further reduced to voluntary manslaughter. (People v. Trinh (2014) 59 Cal.4th 216, 232;

Hernandez, supra, 183 Cal.App.4th at p. 1332; People v. Jones, supra, 223 Cal.App.4th

at pp. 1000-1001.) The provocation sufficient to reduce murder to voluntary

                                             9
manslaughter requires not only that the defendant subjectively experience a heat of

passion resulting from the provocation but also have an objectively reasonable response:

that is, an unlawful killing is voluntary manslaughter " '[i]f the killer's reason was

actually obscured as the result of a strong passion aroused by a "provocation" sufficient

to cause an " 'ordinary [person] of average disposition . . . to act rashly or without due

deliberation and reflection . . . .' " ' " (People v. Lasko (2000) 23 Cal.4th 101, 108; see

also People v. Beltran (2013) 56 Cal.4th 935, 942; People v. Gutierrez (2002) 28 Cal.4th

1083, 1143; People v. Steele (2002) 27 Cal.4th 1230, 1254.)

                                         III. Analysis

       We reject Rodriguez's claim of instructional error because, as we explain more

fully below, (1) any further instruction explaining how provocation must affect the

defendant so as to reduce first degree murder to second degree murder is a pinpoint

instruction that the court has no sua sponte duty to give (see People v. Souza (2012) 54

Cal.4th 90, 118; People v. Rogers (2006) 39 Cal.4th 826, 878-879; People v. Mayfield,

supra, 14 Cal.4th at p. 778; People v. Lee (1994) 28 Cal.App.4th 1724, 1732-1734) and

(2) in this context, the term "provocation" is not used in a technical sense peculiar to the

law. (Hernandez, supra, 183 Cal.App.4th at p. 1334.)

A. Pinpoint Instruction

       "Pinpoint instructions 'relate particular facts to a legal issue in the case or

"pinpoint" the crux of a defendant's case' " and must be given on request " 'when there is

evidence supportive of the theory . . . .' " (People v. Wilkins (2013) 56 Cal.4th 333, 348-

349; quoting People v. Saille (1991) 54 Cal.3d 1103, 1119.) Such instructions relating

                                              10
not to a defense, but rather to an attempt to raise a reasonable doubt as to an element of

the crime, need not be given sua sponte but must be given only upon request. (People v.

Anderson (2011) 51 Cal.4th 989, 996-997; Saille, at p. 1120.)

       In People v. Rogers, supra, 39 Cal.4th 826, the defendant, who had been convicted

of first degree murder, asserted the trial court erred by failing to instruct with an

instruction similar to then CALJIC No. 8.732 "that provocation inadequate to reduce a

killing from murder to manslaughter nonetheless may suffice to negate premeditation and

deliberation, thus reducing the crime to second degree murder." (Id. at pp. 877-878.)

The defendant had not requested such an instruction. The Supreme Court held that any

such instruction was a pinpoint instruction because it "relates the evidence of provocation

to the specific legal issue of premeditation and deliberation" and "need not be given on

the court's own motion." (Id. at pp. 878-879; see also People v. Mayfield, supra, 14

Cal.4th at p. 778; Hernandez, supra, 183 Cal.App.4th at p. 1333.) Because evidence that

a defendant was unreasonably provoked may create doubt concerning the existence of

deliberation and premeditation, an instruction defining the type of provocation needed to

reduce first degree to second degree is a pinpoint instruction that does not need to be

given sua sponte. (Rogers, at pp. 878-879; see People v. Enraca (2012) 53 Cal.4th 735,

760; People v. Lee, supra, 28 Cal.App.4th at pp. 1732-1734.)



2      That instruction provided: "If the evidence establishes that there was provocation
which played a part in inducing an unlawful killing of a human being, but the provocation
was not sufficient to reduce the homicide to manslaughter, you should consider the
provocation for the bearing it may have on whether the defendant killed with or without
deliberation and premeditation." (CALJIC No. 8.73.)
                                              11
       Rodriguez concedes this point, but he maintains that an exception applies to this

rule when the term used by the court has a technical meaning peculiar to the law. Under

this exception, he contends, a sua sponte duty does arise to give the instruction.

Rodriguez argues that in this case, provocation in the context of second degree murder

has a technical meaning peculiar to the law, "not to the nature of the provocation, but

rather to its effect," which is "the impact of the provocation on the defendant's subjective

state of mind." He points out that the dictionary definition of the word provocation does

not mention anything about the effect of the provocation "in terms of whether the

defendant subjectively has been provoked or whether an ordinary person of average

disposition would be provoked." We are not persuaded.

B. Provocation as Used in CALCRIM No. 522 Has Its Ordinary Meaning

       We have no quarrel with the general principles on which Rodriguez relies. " 'If a

statutory word or phrase is commonly understood and is not used in a technical sense, the

court need not give any sua sponte instruction as to its meaning.' " (People v. Lucas

(2014) 60 Cal.4th 153, 296, disapproved on other grounds in People v. Romero and Self

(2015) 62 Cal.4th 1, 53, fn. 19; People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023.)

However, a court's obligation to give instructions without request by either party " 'comes

into play when a statutory term "does not have a plain, unambiguous meaning," has a

"particular and restricted meaning" [citation], or has a technical meaning peculiar to the

law or an area of law.' " (People v. Hudson, supra, 38 Cal.4th at p. 1012.) A word has a

technical legal meaning requiring clarification by the court when its definition differs



                                             12
from its nonlegal meaning. (People v. Cross (2008) 45 Cal.4th 58, 68; Hudson, at

p. 1012.)

       We disagree that CALCRIM No. 522 uses the word provocation in any other sense

than its ordinary meaning as " 'something that provokes, arouses, or stimulates' " or " 'the

defendant's emotional reaction to the conduct of another . . . .' " (Hernandez, supra, 183

Cal.App.4th at p. 1334.) The California Supreme Court has stated as such in a similar

context. (See People v. Cole (2004) 33 Cal.4th 1158, 1217-1218 [provocation as used in

CALJIC No. 8.73 "bore [its] common meaning, which required no further explanation in

the absence of a specific request"]; People v. Ward (2005) 36 Cal.4th 186, 215 ["[t]he

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"; defining

provocation by Merriam-Webster's Collegiate Dictionary].) And this court so held in

Hernandez, when we explained that in the context of CALCRIM No. 522, "provocation

was not used in a technical sense peculiar to the law" and assumed the jurors were aware

of the common meaning of the term. (Hernandez, supra, 183 Cal.App.4th at p. 1334.)

       Rodriguez characterizes Hernandez as inapposite, and its conclusion as flawed

dictum. He first maintains that provocation in the context of CALCRIM No. 522 is used

in a technical sense. But this assertion would have us simply disagree with Hernandez's

conclusion. It does not explain why Hernandez's point is dictum in light of the facts of

the case or otherwise not necessary to determine the issue before it. To the contrary,

Hernandez addressed the very issues raised by Rodriguez's argument. In Hernandez, the

prosecution sought to convict defendant of first degree premeditated murder, and the

                                             13
defendant claimed he acted in reasonable self-defense supporting acquittal, or

unreasonable self-defense supporting a verdict of voluntary manslaughter. (Hernandez,

supra, 183 Cal.App.4th at p. 1331.) In addition to instructions on those defenses, the

defendant asked the court to instruct the jury on provocation to support a verdict of

second degree murder with CALCRIM No. 522, without asking that it be clarified or

amplified. (Ibid.)

       On appeal from his first degree murder conviction, the defendant claimed

CALCRIM No. 522, the same instruction on provocation given in this case, was

incomplete and misleading in part because it did not specify that provocation could

negate premeditation or deliberation necessary for first degree murder. (Hernandez,

supra, 183 Cal.App.4th at p. 1331.) We rejected that claim of instructional error,

pointing out such an instruction would be a pinpoint instruction that need not be given

sua sponte absent a request, and because the trial court was not required to give the

instruction at all, it was not misleading to give CALCRIM No. 522 without expressly

using the defendant's proposed language, particularly when it was given in conjunction

with CALCRIM No. 521. (Id. at pp. 1333-1334.) "Although CALCRIM No. 522 does

not expressly state provocation is relevant to the issues of premeditation and deliberation,

when the instructions are read as a whole there is no reasonable likelihood the jury did

not understand this concept. Based on CALCRIM No. 521, the jury was instructed that

unless the defendant acted with premeditation and deliberation, he is guilty of second, not

first, degree murder, and that a rash, impulsive decision to kill is not deliberate and



                                             14
premeditated. Based on CALCRIM No. 522, the jury was instructed that provocation

may reduce the murder to second degree murder." (Id. at p. 1334.)

       This court in Hernandez further held that provocation in this context was not used

in a technical sense, which as we have explained above, would have required the court to

give the instruction sua sponte. (Hernandez, supra, 183 Cal.App.4th at p. 1334.) Thus,

Hernandez concluded that "even without express instruction, the jurors understood that

the existence of provocation can support the absence of premeditation and deliberation"

and "without a request for further instruction, the trial court was not required to amplify

the instructions to explain this point." (Id. at p. 1334.) Notwithstanding the defendant in

Hernandez did not expressly argue that provocation had a technical meaning, our

conclusions in Hernandez directly addressed, and were necessary to resolve, the

defendant's claim that the court committed instructional error by giving CALCRIM No.

522 without the additional proposed language.

       Rodriguez further argues that Hernandez's statement is flawed because the case

"contains no discussion of the subjective standard of provocation in the context of second

degree murder and the objective standard of provocation in the context of voluntary

manslaughter based on heat of passion." Rodriguez claims this "indicates . . . Hernandez

did not consider that provocation in the context of homicide requires something more

than the common definition of the term . . . ." The argument is simply incorrect.

Hernandez expressly recognized the subjective and objective distinction as to how

provocation will reduce first degree to second degree murder, and how it will further

reduce the crime to voluntary manslaughter. (Hernandez, supra, 183 Cal.App.4th at

                                             15
p. 1332, citing People v. Fitzpatrick, supra, 2 Cal.App.4th at pp. 1295-1296.) This court

was well aware of the standards when it concluded, correctly, that the word provocation

in CALCRIM No. 522 was not used in a technical sense. In either case, the word

provocation has its standard meaning, regardless of the effect the provocation has on the

defendant and the resulting penal consequences.

       Rodriguez additionally points out that in Hernandez, unlike this case, the jury was

not instructed with CALCRIM No. 570, which set out an objective test for reducing

murder to voluntary manslaughter. By this point, Rodriguez apparently suggests the jury

in this case was misled by the objective standard, whereby the "defendant is not allowed

to set up his own standard of conduct." We disagree. This was an argument rejected by

the California Supreme Court in People v. Rogers, supra, 39 Cal.4th 826, where the jury

was instructed on provocation as it relates to voluntary manslaughter but not provocation

as it related to second degree murder. (Id. at pp. 879-880.) On the defendant's claim that

the court erred by not instructing on provocation sua sponte, the court concluded the

omission of such an instruction was not misleading: "[T]he standard manslaughter

instruction is not misleading, because the jury is told that premeditation and deliberation

is the factor distinguishing first and second degree murder. Further, the manslaughter

instruction does not preclude the defense from arguing that provocation played a role in

preventing the defendant from premeditating and deliberating; nor does it preclude the

jury from giving weight to any evidence of provocation in determining whether

premeditation existed." (Id. at p. 880.) Rogers held the sought-after instruction was a

pinpoint instruction that the court did not need to give on its own motion. (Ibid.)

                                             16
       This court reached a similar conclusion in Hernandez, in response to the

defendant's argument that CALCRIM No. 522 was deficient because it did not instruct

the jury that provocation insufficient to reduce the crime to manslaughter may

nevertheless be sufficient to reduce the crime from first degree to second degree murder.

(Hernandez, supra, 183 Cal.App.4th at p. 1335.) We rejected the contention:

"CALCRIM No. 522 instructs the jury to 'consider the provocation in deciding whether

the crime was first or second degree murder' and 'consider the provocation in deciding

whether the defendant committed murder or manslaughter.' Thus, the instruction plainly

states the jury should consider provocation for both second degree murder and

manslaughter." (Ibid.) In this case, reviewing the instructions given as a whole as we

must, we cannot say the jury would be misled. (People v. Rogers, supra, 39 Cal.4th at

p. 880; Hernandez, at p. 1334.)3

       Our conclusions are further supported by People v. Jones, supra, 223 Cal.App.4th

995, in which the trial court, as in this case, instructed the jury with CALRIM Nos. 520,

521, 522, and 570. (Id. at p. 999.) In Jones, the defendant argued, similar to Rodriguez's

insinuation as to the giving of CALCRIM No. 570 here, that the pattern instructions were


3       In a footnote, Hernandez stated: "The lack of error in this particular case is further
supported by the fact that, apart from the brief reference to manslaughter in the
CALCRIM No. 522 provocation instruction, the jury was not otherwise instructed on a
heat of passion/provocation theory of voluntary manslaughter. Thus, the jury would not
have focused on the provocation evidence for purposes of manslaughter while failing to
consider it for purposes of second degree murder." (Hernandez, supra, 183 Cal.App.4th
at p. 1335, fn. 5.) Hernandez does not suggest that the giving of CALCRIM No. 570
would have caused the jury to misdirect its focus, and here, Rodriguez gives no
indication—other than the two-day length of deliberations—that persuades us the jurors
put undue focus on the standards expressed in that instruction.
                                             17
likely to have misled the jury into concluding that the provocation standard to reduce

murder to voluntary manslaughter also applied to reduce first to second degree murder.

(Id. at p. 1001.) The Court of Appeal in Jones, applying Hernandez's reasoning, held the

instructions were correct taken together and that defense counsel's failure to request a

more specific, or pinpoint, instruction forfeited his claim on appeal. (Ibid.)

       These authorities compel us to conclude the trial court gave full and correct

instructions on the law, and it was not required to give sua sponte any further instruction

than CALCRIM No. 522 regarding provocation in the context of reducing first degree to

second degree murder.

                                       IV. Prejudice

       Even if the trial court somehow erred by not giving an additional instruction on its

own motion, we would nevertheless conclude Rodriguez suffered no conceivable

prejudice. In reaching this conclusion, we reject Rodriguez's argument that the federal

constitutional standard of harmless error set forth in Chapman v. California (1967) 386

U.S. 18, 24 applies. Rodriguez relies on People v. Thomas (2013) 218 Cal.App.4th 630,

but the instructions given here were unlike the instructions administered in Thomas,

which were "bereft of any indication that the jury could consider [defendant's] emotional

excitement as a factor that could reduce his criminal culpability" by negating malice. (Id.

at p. 645.)4 Here, as we have concluded, the jury was properly instructed via CALCRIM




4      In Thomas, there was evidence of a heated argument between the defendant and
the victim before the shooting, and the defendant testified at trial that the victim hit him
                                             18
Nos. 521 and 522 as to all of the degrees of murder and how provocation would reduce

the degree of murder to either second degree murder or voluntary manslaughter.

Rodriguez makes no argument that the prosecutor misapplied those standards or

somehow incorrectly stated the People's burden of proof. Further, unlike the defendant in

Thomas, the jury here found Rodriguez guilty of first degree, not second degree, murder.

(Thomas, at p. 641.) In finding him guilty of first degree murder, "the jury necessarily

found defendant premeditated and deliberated the killing. This state of mind, involving

planning and deliberate action, is manifestly inconsistent with having acted under the

heat of passion—even if that state of mind was achieved after a considerable period of

provocatory conduct." (People v. Wharton (1991) 53 Cal.3d 522, 572; see also People v.

Carasi (2008) 44 Cal.4th 1263, 1306.)

       An error is prejudicial under People v. Watson (1956) 46 Cal.2d 818 if, " ' " ' "after

an examination of the entire cause, including the evidence," [the reviewing court] is of

the "opinion" that it is reasonably probable that a result more favorable to the appealing

party would have been reached in the absence of the error.' " ' " (People v. Wilkins (2013)

56 Cal.4th 333, 351.) Our Supreme Court has stated that " 'a "probability" in this context

does not mean more likely than not, but merely a reasonable chance, more than an

abstract possibility.' " (Ibid., italics omitted.)

       The evidence in this case was quite weak as to provocation, if any, by Rodriguez's

wife that would cause Rodriguez to actually but unreasonably react from passionate


and then lunged at him after the defendant had retrieved a rifle and told the victim to not
come closer. (People v. Thomas, supra, 218 Cal.App.4th at pp. 634-640.)
                                                19
emotion so as to "play[] a role in preventing [him] from premeditating and deliberating."

(People v. Rogers, supra, 39 Cal.4th at p. 880.) The evidence must show the defendant

"formed the intent to kill as a direct response to . . . provocation and . . . acted

immediately . . . ." (People v. Wickersham (1982) 32 Cal.3d 307, 329, italics added,

disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.)5

Though Rodriguez's wife had left the house the evening before her death, there was no



5       We note that in People v. Wright (2015) 242 Cal.App.4th 1461, a majority panel
of the First District, Division One rejected the emphasis on People v. Wickersham's
immediate conduct statement, observing that "[c]ases dealing with provocation have
considered behavior patterns that developed over a 'provocatory' period as opposed to
sudden and heightened instigative situations." (Wright, at p. 1486.) It referred to several
cases including People v. Borchers (1958) 50 Cal.2d 321, in which the 45-year-old
defendant realized his younger girlfriend was cheating on him during their months-long
relationship, and the court held the trial court could have concluded the defendant "was
roused to a heat of 'passion' by a series of events over a considerable period of time: [the
girlfriend'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.'
. . . [T]he evidence on the issue of not guilty supports a finding that defendant killed in
wild desperation induced by [the girlfriend's] long continued provocatory conduct."
(Borchers, at pp. 328-329.) Similarly, in People v. Berry (1976) 18 Cal.3d 509, the
defendant was a 46-year-old man who killed his 20-year-old wife, who had left the
country three days after they were married. (Berry, at p. 512.) When she returned, she
told the defendant she had fallen in love with another man who she had sexual relations
with, and wanted a divorce. (Id. at p. 513.) For the next two weeks, the wife taunted the
defendant with her involvement with the other man but also indicated her desire to
remain with the defendant. A defense psychiatrist testified the wife was a depressed and
suicidally-inclined woman who had taunted the defendant in an unconscious desire to
provoke him into killing her, and that "as a result of this cumulative series of
provocations, defendant . . . was in a state of uncontrollable rage, completely under the
sway of passion." (Id. at pp. 513-514.) In Wright, a concurring justice disagreed with the
majority's conclusions about these cases, holding in them, "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." (Wright, 242 Cal.App.4th at p.
                                               20
evidence of a heated argument or altercation between them, or that she said or did

anything that was so shocking or inflammatory that it might have caused him to obscure

his reasoning or judgment under a heat of passion. At this point, her perceived or actual

infidelity had been going on for years, so it was not provocative for her to have left the

house again. Indeed, Rodriguez and his wife apparently went to sleep that night without

incident. She was asleep, or just waking up from sleep, when Rodriguez began his

attack.

          Furthermore, in our view, this was an overwhelming case of Rodriguez's

premeditation and deliberation. "First degree willful, deliberate, and premeditated

murder involves a cold, calculated judgment, including one arrived at quickly [citation],

and is evidenced by planning activity, a motive to kill, or an exacting manner of death."

(People v. Carasi, supra, 44 Cal.4th at p. 1306.) " 'Deliberation' refers to careful

weighing of considerations in forming a course of action; 'premeditation' means thought

over in advance. [Citations.] 'The process of premeditation and deliberation does not

require any extended period of time. 'The true test is not the duration of time as much as

it is the extent of the reflection.' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

"[F]or instance, 'an execution-style killing may be committed with such calculation that

the manner of killing will support a jury finding of premeditation and deliberation,

1502, conc. opn. of P. J. Humes.) Presiding Justice Humes stated, "[B]y 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." (Id. at p. 1504.)

                                             21
despite little or no evidence of planning and motive.' " (People v. Tafoya (2007) 42

Cal.4th 147, 172.)

       After knowing for years of his wife's perceived or actual infidelity and aware she

had gone out the night before, Rodriguez awoke in the morning angry, walked to the

kitchen to retrieve a knife, returned to the bedroom where his wife slept, and began to

stab her repeatedly. In walking to and from the kitchen, Rodriguez had time to reflect on

his actions. He forcefully stabbed his wife 25 times, including through her chest and

back. Rodriguez's stab wound to her chest was fatal. That the jury found him guilty of

first degree murder based on premeditation and deliberation shows that, notwithstanding

evidence showing his anger toward his wife, the jury found he acted with reflection and

careful consideration. Likewise, the jury could reasonably infer from the evidence that

Rodriguez's manner of killing his wife demonstrated a deliberate plan to kill her. (See,

e.g., People v. San Nicolas (2004) 34 Cal.4th 614, 658 [the number of wounds on the

victim's body, many of which were fatal, led to reasonable inference defendant intended

to kill the victim].) The fact the multiple wounds were clustered in areas containing vital

organs suggests a preconceived design to kill, rather than a sudden explosion of violence.

(See People v. Prince (2007) 40 Cal.4th 1179, 1253; People v. Elliot (2005) 37 Cal.4th

453, 471 [three potentially lethal knife wounds, repeated throat slashing and numerous

other stab wounds could be construed as suggesting a premeditated design to kill].)

       Given the state of the evidence, and the jury's verdict reflecting its finding that

Rodriguez acted with premeditation and deliberation rather than rashly or impulsively,

we cannot say it is reasonably probable the jury would have found he subjectively acted

                                             22
out of passion even if the court had given further instruction on provocation in the

context of second degree murder.

                                      DISPOSITION

       The judgment is affirmed.




                                                                            O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


NARES, J.




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