         Filed 5/19/16 P. v. Montenegro CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D069426

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FWV1101427)

CARMEN MONTELONGO
MONTENEGRO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Gregory S. Tavill, Judge. Affirmed.

         Randall B. Bookout, under appointment by the Court of Appeal, for Defendant

and Appellant.

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

Assistant Attorneys General, Barry Jay Carlton and James Henry Flaherty III, Deputy

Attorneys General, for Plaintiff and Respondent.
       A jury convicted Carmen Montelongo Montenegro of first degree murder. (Pen.

Code,1 § 187, subd. (a).) It found true an allegation that she personally used a deadly and

dangerous weapon in the commission of the offense. (§ 12022, subd. (b)(1).) The court

sentenced her to 25 years to life on the murder conviction, and one consecutive year on

the enhancement.

       Montenegro contends the court erroneously (1) denied her motion for acquittal

under section 1118.1, given that insufficient evidence supported the charge she murdered

the victim, Samuel Wiggins, much less with the intent required for first degree murder;

(2) failed to instruct the jury sua sponte on the lesser included offense of provocation

manslaughter, thus violating her constitutional right to due process of law; (3) instructed

the jury with CALCRIM No. 359 regarding corpus delicti; and (4) instructed the jury

with CALCRIM No. 362 regarding consciousness of guilt. Montenegro further contends

there was cumulative error. We affirm the judgment.

                                         BACKGROUND

Prosecution's Case-in-Chief

       Samuel Wiggins was last seen alive in late April 2011. Police did not know the

exact date he was murdered, but believed based on their investigation that it happened in

the last week of April 2011.

       Araceli Falcon, one of Wiggins's next-door neighbors in Diamond Bar, California,

testified Wiggins introduced Montenegro to her as his date "maybe [in] 2009," and at one



1      All statutory references are to the Penal Code unless otherwise stated.
                                             2
point Montenegro lived with Wiggins for approximately one year. When Falcon last saw

Wiggins in April 2011, he did not seem himself; rather, he was moving slowly, his

speech was slurred, and he seemed worn down. In April or May 2011, she saw a van

with a carpet near it parked in front of Wiggins's house. Falcon was surprised because

Wiggins had not consulted her about changes to his house like he usually did. On May

20, 2011, Falcon, who had not seen Wiggins since before Easter, telephoned Wiggins's

home and left a message insisting that he telephone her or she would call the police. The

next day, Montenegro telephoned Falcon and told her Wiggins was taking care of

personal matters. When Falcon asked more questions, Montenegro then said Wiggins

was out of town and would contact Falcon on his return. Falcon admitted she did not

"get a good vibe" from Montenegro, in part because Wiggins had told her Montenegro

had asked him for money.

      Silvia Fonseca was another of Wiggins's neighbors, and last saw him around the

end of April 2011. She later saw some people moving potted plants from Wiggins's

residence. Fonseca found that strange because Wiggins rarely moved things, and he had

not consulted her as he usually did. Approximately a couple of days later, Fonseca saw

Montenegro driving Wiggins's car, something Fonseca had never seen Montenegro doing

while Wiggins was alive.

      Robert Baltes, Wiggins's landlord, testified that on April 20, 2011, when he went

to Wiggins's residence to pick up a rent check, Wiggins had introduced Montenegro as

his girlfriend and said she would move in with him. On May 17, 2011, when Baltes

returned to Wiggins's house to pick up the next month's rent, he did not see Wiggins;

                                            3
rather, Montenegro gave Baltes the rent check. Baltes assumed she was living with

Wiggins. Baltes testified that Wiggins was small and "[Montenegro] was maybe a little

bit bigger" than Wiggins.

      Wiggins's daughter-in-law, Michele Wiggins,2 testified she lived in Houston,

Texas, and usually spoke with Wiggins by telephone once a month, if not more. She last

did so on March 2, 2011. At some point, she and Wiggins talked about him wanting to

visit her in Texas in May 2011. Wiggins told Michele that Montenegro had asked

Wiggins to leave her money for her children but Wiggins did not want to do that.

Michele spoke to Montenegro about this matter, and Montenegro said she was angry with

Wiggins, who did not want to leave $500 with her children and leave his car with

Montenegro. Therefore, Wiggins decided not to visit Michele. Michele testified

Wiggins never loaned his car to Montenegro or anybody else.

      Michele testified that on Easter, which fell on April 24, 2011, and several days

afterwards, she tried telephoning Wiggins at different times, but he never replied, which

Michele thought was "weird." On May 19, 2011, Michele telephoned the Los Angeles

County Sheriff's Department requesting they do a welfare check on Wiggins. That same

day, Montenegro telephoned Michele, saying Wiggins was out of town with a drug dealer

named "Emmett." Michele asked Montenegro to have Wiggins call her, and Montenegro

replied that after Wiggins returned, she and he were going out of town for a week. A

couple of days later, Montenegro telephoned Michele, saying Wiggins had a drug



2     We refer to Michele Wiggins by her first name to avoid confusion.
                                            4
problem and she was trying to convince him to get help from the Veteran's

Administration.

       Detectives obtained copies of Wiggins's bank statements, which showed bank

transfers made after the date of Wiggins's presumed death. Specifically, on April 25,

2011, three money transfers were made from Wiggins's savings account to his checking

account: two $500 transfers then one $300 transfer. On April 26, 2011, someone used

Wiggins's bank card to withdraw money from a Pomona, California branch of Wiggins's

bank. Bank surveillance video captured images of someone using Wiggins's bank card at

a bank branch in Diamond Bar on April 26, 2011. On May 12, 2011, surveillance video

captured Montenegro driving Wiggins's car at a gas station in Glendora, where Wiggins's

credit card was used that day. On May 20, 2011, someone transferred money from one of

Wiggins's accounts to another; someone also withdrew $500 from Wiggins's bank

account.

       Eugenio Montelongo testified that on May 8, 2011, Montenegro, who is his

cousin, unexpectedly came to his residence in Bell Gardens between 9:00 p.m. and 10:00

p.m., and left two plastic pots with plants in them. She asked him to keep the plants for

her, saying she would take them to Santa Barbara later.

       On May 25, 2011, Montenegro telephoned Michael Hachem sounding hurried and

distraught, and asked to meet him at a coffee shop. At the meeting, Montenegro asked

Hachem if he knew of a place without security cameras where she could buy untraceable

phones. Montenegro explained that some people had been harassing her and claiming

that she knew the whereabouts of one of her male friends.

                                             5
       On May 26, 2011, Los Angeles County Sheriff's Detective Diane Harris

telephoned Montenegro regarding Wiggins, who had been reported missing. Montenegro

said she had seen Wiggins the previous day at a park in Pomona, where he was doing

drugs with Emmett. Montenegro said she would have Wiggins telephone Detective

Harris. On May 26, 2011, Detective Harris searched Wiggins's home pursuant to a

search warrant, but found nothing indicating that a struggle had occurred there or that

Wiggins was a drug user. There also was no sign that Wiggins's television or other

furniture were missing. However, detectives noticed that a knife was missing from a

knife holder in Wiggins's kitchen.

       On May 29, 2011, Matthew Bell, Montenegro's cousin, was at his residence in

Ontario, California, when Montenegro arrived with two men. She asked if Bell, his

girlfriend and brother could leave the residence for approximately one hour, and in

exchange she would give them $100. Bell and his group immediately left the residence,

but soon returned there upon realizing Montenegro had not given them any money. They

saw a man digging in the backyard, and Montenegro and another man were nearby.

Montenegro appeared panicked when she saw Bell. The other men left. Montenegro

started pacing and told Bell and his group something like, "I'll give you guys like, $5,000

each to help me. Help me get rid of him. I need to get rid of it." Bell and his brother

walked to the backyard, and Montenegro directed them to get a trash can from the front

of the garage. Bell complied. Montenegro unearthed human body parts from a hole in

the ground and threw them into the trash can. Bell started to vomit, left the area with his



                                             6
group, and telephoned his mother. Montenegro dragged the trash can as she followed

Bell and his group on the street and asking them to come back.

       That day, Ontario Police Officer Michael Gonzales was on patrol and en route to

Bell's residence when Bell flagged him down and directed him to Montenegro, who was

walking down the sidewalk with a trash can. When Officer Gonzalez got close to her,

she froze, and stared at him blankly. Montenegro had dirt all over her, and Officer

Gonzalez smelled a strong foul odor of dead material. A forensic specialist analyzed the

contents of the trash can, and found in it Wiggins's torso, two dismembered legs, latex

gloves, a syringe, and a piece of zip tie, among other things.

       Ancecito Paredes testified that at some point in May 2011, Montenegro asked him

if he could help her store a box containing some pieces of carpet. When Paredes refused,

Montenegro became sad and cried. Paredes decided to ask his friend David Chavez to

store the box, and Chavez agreed. Therefore, on May 22, 2011, Paredes drove to an

apartment, picked up the box and took it to Chavez's house.

       Chavez testified that in May 2011, Montenegro visited his residence with Paredes,

and requested that Chavez keep a closed box at his residence. Chavez agreed and never

looked inside the box. Montenegro also discussed renting a place to stay at Chavez's

residence, but said she would need a fence installed to enclose the property.

       On May 30, 2011, Ontario Police Officer Henry Melendez responded to Chavez's

residence, and retrieved the box Montenegro had left there.

       On June 1, 2011, Ontario Police Detective Alfredo Parra came to Eugenio

Montelongo's Bell Gardens home, responding to Montelongo's call. Detective Parra

                                             7
discovered two severed human arms in one of the potted plant containers. Detective

Parra contacted Robert Hunter, a deputy coroner investigator at the San Bernardino

County Coroner's office. Hunter went to the Bell Gardens address and found a human

skull in the other potted plant container. Hunter took the severed arms and the skull to

the morgue.

       Detectives found blood splatter on a bedroom door in Wiggins's residence. DNA

analysis of that blood matched Wiggins's DNA. Detectives also examined the items

contained in the box that Montenegro had left at Chavez's residence, including blood-

stained carpet matching those found in Wiggins's house, and also some tiles matching

those found in Wiggins's residence.

       Ontario Police Sergeant Chris Martinez testified that Carmen Marquez, who was

Montenegro's boyfriend and was about 86 years old, gave police Montenegro's passport

and four bank cards belonging to Wiggins. Police impounded Wiggins's and

Montenegro's cars. Police found a bottle of bleach in the trunk of Wiggins's car.

       Forensic pathologist Glenn Holt testified that on June 2, 2011, he performed an

autopsy on Wiggins's body parts (torso, head, two legs, and two arms), which had started

to decompose, and which altogether weighed 82 pounds. The pathologist did not know

how much Wiggins weighed before he died. The pathologist testified that the extent of

Wiggins's body's decomposition was consistent with historical reports that Wiggins had

died as of April 24, 2011. Wiggins had received a laceration by blunt force around his

right eyebrow. Wiggins was stabbed, apparently with a knife, 24 times to the upper

body, including two chest wounds that penetrated the lung. The pathologist testified

                                             8
Wiggins's lung would have collapsed and bled, possibly filling the chest cavity with

blood. Wiggins was stabbed in the back 22 times. Wiggins had no injuries to his arms

and legs apart from those places where his limbs were severed from his torso. The

pathologist believed Wiggins's body was dismembered after he died. The pathologist

concluded Wiggins's manner of death was homicide and the cause of death was stab

wounds to the torso.

Defense Case

      At trial, Montenegro denied that she had been in a romantic relationship with

Wiggins. Without specifying a date, Montenegro testified that she last saw Wiggins alive

at his house in "very early" May 2011. That day she had just finished showering and was

wearing only a towel over her undergarments, when Wiggins entered the house and

pushed her into his bedroom. Montenegro tried to get away, but Wiggins pushed her on

the bed and put his mouth to her chest, groped and raped her. She managed to get away

but he followed her and she hurt him by hitting him with her elbow to his eye. She ran

out the door and drove to her home in Riverside. There, she showered and tried to forget

what had happened. She did not call police because in her experience "they never do the

right thing." She did not go to a hospital or call her mother or her children. Montenegro

mentioned the incident to Jacque LaFevre, an approximately 85-year-old man with whom

she had lived off and on. She went to bed and when she awoke, LaFevre was no longer

at home.3



3     LaFevre was deceased at the time of trial.
                                            9
      Montenegro testified that she saw LaFevre a "few days" later driving Wiggins's

car. She estimated that "the first week or into the second week of May," she returned to

Wiggins's house with LaFevre, and discovered Wiggins was dead and his body was

dismembered. Montenegro did not call the police for fear they would take away LaFevre.

When police later telephoned Montenegro, she did not tell them about Wiggins's death

because she did not want anything to happen to LaFevre. Montenegro testified she and

LaFevre hired two day laborers to remove a carpet from Wiggins's residence and take it

in a box to Chavez's residence. Around the end of May 2011, Montenegro returned to

Wiggins's home and watered his plants and put his mail on the table. She also drove his

car because she did not like putting miles on her own car.

      Montenegro testified that after police had insisted on seeing Wiggins, she enlisted

some men to unearth his body, which she planned to take to police. Montenegro

admitted using Wiggins's bank cards after his death because Wiggins "would want to

make sure that [she] had whatever [she] needed." She used the money to pay for gas and

Wiggins's dog's expenses. Montenegro admitted Wiggins was already dead when she

forged his signature on the check she used to pay the May rent. She also admitted using

Wiggins's bank card more than twice after he had died. Montenegro admitted lying to

Wiggins's family when they had telephoned her asking about Wiggins's whereabouts.

Montenegro admitted lying to Detective Harris about seeing Wiggins with Emmett, and

about Wiggins going to drug rehabilitation.




                                              10
People's Rebuttal Evidence

      Marquez testified that he had been dating Montenegro off and on for almost one

year before her legal troubles began. She asked him one day to go to the home of "the

man they killed." He therefore went to a home in Diamond Bar and picked up a heavy

box that Montenegro said contained papers, but Marquez did not believe it only contained

papers. Marquez took the box to his house and the next day someone picked it up from

there. Marquez gave police Wiggins's bank cards and other items that Montenegro had

left at Marquez's apartment.

      Robert Craig, co-director of a center that served meals to senior citizens, testified

he knew LaFevre, who often went to the center for lunch. LaFevre appeared to be a

small man who had limited upper body mobility. Craig last saw LaFevre in 2011, and he

appeared to move slowly. Robert Planas testified that in June 2011, he had an

opportunity to talk to LaFevre, who appeared "soft-spoken, kind of frail."

                                         DISCUSSION

               I. The Court Did Not Err by Denying the Motion to Acquit

A. Background

      At the end of the People's case-in-chief, Montenegro moved for a judgment of

acquittal under section 1118.1, arguing that no forensic evidence, murder weapon, or tool

used to dismember Wiggins's body were recovered or tied to Montenegro to show she

had killed Wiggins; rather the People had only presented evidence pointing to

Montenegro's postmurder conduct. Montenegro further argued no evidence existed that

she had killed Wiggins deliberately or with premeditation to support a first degree murder

                                            11
conviction. The court denied the motion: "The circumstantial evidence is substantial.

The behavior of the defendant after the killing of Mr. Wiggins certainly is sufficient to let

the case go forward." The court added: "On the issue of first degree, the evidence is that

[Wiggins] died by stab wounds, 26 of them. Not all of them fatal. Certainly for someone

to go and pick up a knife and then stab the decedent, that's certainly a long enough period

of time that could support an argument for first degree murder."

B. Applicable Law

       Section 1118.1 provides: "In a case tried before a jury, the court on motion of the

defendant or on its own motion, at the close of the evidence on either side and before the

case is submitted to the jury for decision, shall order the entry of a judgment of acquittal

of one or more of the offenses charged in the accusatory pleading if the evidence then

before the court is insufficient to sustain a conviction of such offense or offenses on

appeal."

       As the California Supreme Court has explained, "In ruling on a section 1118.1

motion, the trial court applies the same standard used by the appellate court ' " 'in

reviewing the sufficiency of the evidence to support a conviction, that is, "whether from

the evidence, including all reasonable inferences to be drawn therefrom, there is any

substantial evidence of the existence of each element of the offense charged." '

[Citation.] 'The purpose of a motion under section 1118.1 is to weed out as soon as

possible those few instances in which the prosecution fails to make even a prima facie

case.' [Citations.] The question 'is simply whether the prosecution has presented

sufficient evidence to present the matter to the jury for its determination' [Citation.] The

                                             12
sufficiency of the evidence is tested at the point the motion is made. [Citations.] The

question is one of law, subject to independent review." ' " (People v. Mendoza (2011) 52

Cal.4th 1056, 1079.)

       "Murder is the unlawful killing of a human being with malice aforethought.

[Citation.] Malice may be either express or implied. Express malice exists when there is

a deliberate intention unlawfully to take away the life of a fellow creature. [Citation.] It

is implied when no considerable provocation appears or when the circumstances

attending the killing show an abandoned and malignant heart." (People v. Boatman

(2013) 221 Cal.App.4th 1253, 1263.)

       In order for a killing with malice aforethought to be first rather than second degree

murder, the intent to kill must be formed on a preexisting reflection and must have been

the subject of actual deliberation or forethought. (People v. Anderson (1968) 70 Cal.2d

15, 26-27 (Anderson).) A verdict of first degree murder on a theory of willful, deliberate

and premeditated killing is proper only if the defendant killed as a result of careful

thought and weighing of considerations; as a deliberate judgment or plan, carried on

coolly and steadily, especially according to a preconceived design. (Ibid.)

       "Whether a defendant possessed the requisite intent to kill is, of course, a question

for the trier of fact. While reasonable minds may differ on the resolution of that issue,

our sole function is to determine if any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." (People v. Lashley (1991) 1

Cal.App.4th 938, 946.)



                                             13
       " ' "Generally, there are three categories of evidence that are sufficient to sustain a

premeditated and deliberate murder: evidence of planning, motive, and method.

[Citations.] When evidence of all three categories is not present, 'we require either very

strong evidence of planning, or some evidence of motive in conjunction with planning or

a deliberate manner of killing.' [Citation.] But these categories of evidence, borrowed

from [Anderson, supra,] 70 Cal.2d [at pp.] 26-27, 'are descriptive, not normative.'

[Citation.] They are simply an 'aid [for] reviewing courts in assessing whether the

evidence is supportive of an inference that the killing was the result of preexisting

reflection and weighing of considerations rather than mere unconsidered or rash

impulse.' " ' " (People v. Prince (2007) 40 Cal.4th 1179, 1253.) If the Anderson factors

are not present, a finding of premeditation and deliberation can still be upheld based on

substantial evidence from which rational jurors could have found that the killing was the

result of preexisting thought and the careful weighing of considerations. (People v.

Boatman, supra, 221 Cal.App.4th at p. 1270.)

       " '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. Thoughts may

follow each other with great rapidity and cold, calculated judgment may be arrived at

quickly." ' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

       Even if the evidence regarding some of the Anderson factors is weak, we note that

"[i]n reviewing sufficiency of evidence claims, each case of necessity must turn on its

                                              14
own particular facts." (People v. Smith, (2005) 37 Cal.4th 733, 745.) Further,

"[e]vidence of all three elements is not essential . . . to sustain a conviction." (People v.

Edwards (1991) 54 Cal.3d 787, 813.) Rather, "[t]hese three categories are merely a

framework for appellate review; they need not be present in some special combination or

afforded special weight, nor are they exhaustive." (People v. Booker (2011) 51 Cal.4th

141, 173.)

C. Analysis

       The People presented evidence regarding Montenegro's financial motive for

killing Wiggins. Michele testified that Wiggins and Montenegro were arguing about

whether Montenegro would accompany him to Texas because Montenegro wanted him to

give her $500 for her daughter, and she wanted the use of his car, both requests that

Wiggins rejected. One of Wiggins's neighbors also testified Montenegro had asked

Wiggins for money. Further, after the presumed date of Wiggins's death, Montenegro

had Wiggins's bank cards in her possession and used them to withdraw money from

Wiggins's bank account and pay for items. Montenegro also was seen driving Wiggins's

vehicle, which the neighbors testified had never happened before. The jury could

reasonably conclude that Montenegro murdered Wiggins in order to be able to have

access to his funds and his car.

       Montenegro disputes that she had a financial motive for killing Wiggins, arguing

that Wiggins was "far more of an asset to [her] alive than dead." But even if Montenegro

regards the financial motive as unreasonable, as stated in People v. Lunafelix (1985) 168

Cal.App.3d 97, 102, "the law does not require that a first degree murderer have a

                                              15
'rational' motive for killing." (See also People v. Proctor (1992) 4 Cal.4th 499, 529

[motive not clear].) The California Supreme Court has stated that the fact of an

unreasonable motivation "is true of any senseless killing, but the incomprehensibility of

the motive does not mean that the jury could not reasonably infer that the defendant

entertained and acted on it." (People v. Pensinger (1991) 52 Cal.3d 1210, 1238.) Here,

the evidence presented in the People's case-in-chief was sufficient to support the financial

motive, and that motive was rational given that before Wiggins's death, he was reluctant

to give Montenegro money or permit her the use of his car. After he died, she ended up

using his money and his car.

       We further conclude substantial evidence shows Montenegro had the opportunity

to murder Wiggins. Montenegro was in a romantic relationship with him and had shared

his residence. The police found that a knife, possibly the murder weapon, had been

removed from the kitchen. The murder likely occurred in the part of the house where

Wiggins's blood splatter was found, and where the carpet was removed. Given that

Wiggins was an older man who, by Baltes's account, was smaller than Montenegro, and

when last seen by a neighbor he looked worn down and was moving slowly, it is

reasonable to infer Montenegro was able to overpower him and killed him.

       Montenegro also claims the prosecution in its case-in-chief did not present

sufficient evidence that she acted with the intent necessary for first degree murder. But

the evidence suggests Montenegro had to get the knife from the kitchen and take it to a

separate room. The number of stab wounds and their placement on Wiggins's body also

support a finding of premeditation and deliberation. He was stabbed 24 times to the

                                            16
upper body, including two to the chest, perforating his lungs. In light of the fact police

searched Wiggins's residence and found no signs of struggle, a reasonable conclusion is

that Montenegro deliberated and premeditated to inflict those stab wounds to the

vulnerable areas of Wiggins's body to kill Wiggins when he was unable to defend

himself. We conclude the above evidence sufficed to show that Montenegro acted with

the intent necessary to commit first degree murder.

       The California Supreme Court reached a similar conclusion in People v. Raley

(1992) 2 Cal.4th 870, where the defendant stabbed the victims numerous times, then

drove them around, beat them, and dumped their bodies in a ravine, after which one

victim died. The court found sufficient evidence to support the jury's finding of

premeditation and deliberation, explaining, "Even if we were to agree that it could only

be concluded that the many stab wounds defendant inflicted on each woman were part of

an unreflective explosion of violence, his calculated decision to let them bleed for the

next 18 hours, to refuse medical attention, to beat them about the head and to dump them

on a winter night into an isolated ravine supports the conclusion that he premeditated the

death of [the murder victim]." (Id. at p. 888.) Here, the jury could reasonably conclude

that after stabbing Wiggins 24 times, Montenegro left him to bleed and die, rather than

get him medical attention. That calculated decision supports a finding of premeditation.

       In People v. Daya (1994) 29 Cal.App.4th 697, the court stated: "[I]n this case the

deficiency is not in the evidence of culpability but rather the deficiency of any plausible

explanation for the abundance of evidence pointing to the defendant's postmurder

consciousness of guilt." Likewise, here, there was overwhelming evidence of

                                             17
Montenegro's consciousness of guilt: she lied to Wiggins's family members and

neighbors who sought to contact him; she lied to police, giving them the impression

Wiggins was still alive, that he was on drugs and would eventually call them back. All

indications—given Wiggins's decomposed body—are that Wiggins at that time was

already dead. Montenegro also took extraordinary measures to conceal Wiggins's

dismembered body parts, separating them and burying some in potted plants, and others

in a back yard. She also removed evidence from the crime scene, asking a friend to keep

pieces of the carpet that was stained in blood. She asked another friend for a place she

could buy telephones that could not be traced.

       The substantial amount of consciousness of guilt evidence could reasonably lead a

jury to conclude Montenegro had murdered Wiggins; therefore, she was attempting to

cover up her involvement in his first degree murder by lying about it and removing

evidence from the crime scene. The evidence here tends to negate any inference that she

committed the murder in self-defense or based on a provocation because if either

circumstance had obtained, she could have called the police and explained what

happened, and she would have had no need to lie to police and Wiggins's loved ones.

       Montenegro argues that the evidence shows she was just one of several other

people involved in hiding the evidence after Wiggins's murder. But under our standard of

review, " 'If the circumstances reasonably justify the [trier of fact's] findings,' the

judgment may not be overturned when the circumstances might also reasonably support a

contrary finding." (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.) In summary,

there is substantial evidence upon which a rational trier of fact could find beyond a

                                               18
reasonable doubt that Montenegro had the requisite specific intent to murder Wiggins

with premeditation and deliberation. (People v. Hatch (2000) 22 Cal.4th 260, 272.)

Because the evidence is sufficient to support Montenegro's conviction of first degree

murder of Wiggins, the trial court did not err by denying Montenegro's motion for

judgment of acquittal. (Anderson, supra, 70 Cal.2d at pp. 26-27.)

                                                   II.

               The Court Had No Sua Sponte Duty to Instruct the Jury on Voluntary

                                        Manslaughter

         Montenegro acknowledges testifying that Wiggins raped her, but she did not kill

him. Nevertheless, on appeal, she contends that the court committed prejudicial error by

not instructing the jury sua sponte regarding heat of passion manslaughter. She claims

that a properly instructed jury could have concluded that, contrary to her testimony, she

killed Wiggins because he had raped her.

A. Background

         In discussing whether to instruct the jury regarding voluntary manslaughter, the

court told counsel: "The defense is that Ms. Montenegro didn't kill Mr. Wiggins and I

don't see that there's any evidence to support [voluntary] manslaughter instruction."

Defense counsel agreed: "[O]bviously my client testified and she testified that she did

not commit this offense. There hasn't been any evidence deduced that would support

giving that instruction." The prosecutor also agreed that no such instruction should be

given.



                                              19
B. Applicable Law

       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 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 (1995) 12 Cal.4th 186, 201; People v. Lasko (2000) 23 Cal.4th 101, 108;

People v. Beltran (2013) 56 Cal.4th 935, 951.)

       The duty to instruct exists even when the lesser included offense is inconsistent

with the defendant's own theory of the case and the defendant objects to the instruction.

(People v. Breverman (1998) 19 Cal.4th 142, 154, 157.) "Generally, when a defendant

completely denies complicity in the charged crime, there is no error in failing to instruct

on a lesser included offense." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.)



                                              20
       "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital

case is, at most, an error of California law alone, and is thus subject only to state

standards of reversibility." (People v. Breverman, supra, 19 Cal.4th at p. 165.) A

conviction of the charged offense may be reversed as a result of such an error only if,

" 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI,

§ 13), it appears 'reasonably probable' the defendant would have obtained a more

favorable outcome had the error not occurred." (Id. at p. 178; People v. Watson (1956)

46 Cal.2d 818, 836.)

       "Such posttrial review focuses not on what a reasonable jury could do, but what

such a jury is likely to have done in the absence of the error under consideration."

(Breverman, supra, 19 Cal.4th at p. 177.) "In making that evaluation, an appellate court

may consider, among other things, 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 error of which the

defendant complains affected the result." (Ibid; see People v. Sakarias (2000) 22 Cal.4th

596, 621 [failure to instruct regarding lesser included offense, when evidence in support

of that offense "was, at best, extremely weak" did not constitute reversible error].)

C. Analysis

       Montenegro provided the only testimony regarding Wiggins's purported rape of

her. She elaborated that after the rape, she fled Wiggins's residence. She elected not to

call the police, go to the hospital or tell her family about what had happened. Rather, she

went to her residence, where she showered, spoke to LaFevre about the rape, and went to

                                              21
sleep, wanting to forget about the incident. According to Montenegro, she did not see

LaFevre until a few days later, when he took her to Wiggins's residence and she learned

that LaFevre—a frail man in his mid-80's—had killed Wiggins. Separately, police also

did not find evidence of a struggle at Wiggins's residence. Because the record is devoid

of any suggestion Montenegro killed Wiggins in a heat of passion while she was affected

by any provocation regarding Wiggins's purported rape of her, there was insufficient

evidence to warrant the court giving a voluntary manslaughter instruction.4

                                                  III.

       Montenegro concedes she did not object to the court's instruction of the jury with

CALCRIM No. 3595 regarding corpus delicti but nonetheless contends her appellate

claim is not forfeited because it implicates her substantial rights. She contends the

instruction allowed the jury to infer she killed Wiggins based on her out of court

statements alone, thus violating her constitutional rights to due process and to a jury



4       We point out that at the sentencing hearing, defense counsel moved for a
continuance to file a new trial motion, arguing she intended to raise a claim of
insufficiency of evidence to sustain the first degree murder conviction, contending the
jury could have believed Wiggins raped her. The court stated: "My suspicion is the jury
didn't believe that."

5       The court instructed the jury with CALCRIM No. 359: "The defendant may not
be convicted of any crime based on her out-of-court statements alone. You may only rely
on the defendant's out-of-court statements to convict her if you conclude that other
evidence shows that the charged crime was committed. [¶] That other evidence may be
slight and need only be enough to support a reasonable inference that a crime was
committed. [¶] The identity of the person who committed the crime may be proved by
the defendant's statements alone. [¶] You may not convict the defendant unless the
People have proved her guilt beyond a reasonable doubt."

                                             22
determination of guilt beyond a reasonable doubt. Montenegro relies on People v. Rivas

(2013) 214 Cal.App.4th 1410, 1427 (Rivas), which concluded the version of CALCRIM

No. 359 given here was " 'confusing and internally contradictory and gives a false

impression of the law.' " Assuming the issue is reviewable, we reject it on the merits.

A. Applicable Law

       "In every criminal trial, the prosecution must prove the corpus delicti, or the body

of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal

agency as its cause." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).)

The prosecution must establish the corpus delicti independent from the admissions of the

defendant, thus assuring the accused does not admit to a crime which did not occur. (Id.

at p. 1169.) "The independent proof may be circumstantial and need not be beyond a

reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a

noncriminal explanation is also plausible. [Citations.] There is no requirement of

independent evidence 'of every physical act constituting an element of an offense,' so

long as there is some slight or prima facie showing of injury, loss, or harm by a criminal

agency." (Id. at p. 1171.)

       "The amount of independent proof of a crime required for this purpose is quite

small; we have described this quantum of evidence as 'slight' [citation] or 'minimal'

[citation]. The People need make only a prima facie showing ' "permitting the reasonable

inference that a crime was committed." ' [Citations.] The inference need not be 'the only,

or even the most compelling, one . . . [but need only be] a reasonable one.' " (People v.

Jones (1998) 17 Cal.4th 279, 301-302.) "In every case, once the necessary quantum of

                                              23
independent evidence is present, the defendant's extrajudicial statements may then be

considered for their full value to strengthen the case on all issues." (Alvarez, supra, 27

Cal.4th at p. 1171.)

       The identity of the defendant as the perpetrator is not part of the corpus delicti;

identity may be established by the defendant's words alone. (People v. Frye (1998) 18

Cal.4th 894, 960, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th

390, 421, fn. 22.)

       "Whenever an accused's extrajudicial statements form part of the prosecution's

evidence, the cases have additionally required the trial court to instruct sua sponte that a

finding of guilt cannot be predicated on the statements alone." (Alvarez, supra, 27

Cal.4th at p. 1170; People v. Najera (2008) 43 Cal.4th 1132, 1137.) The corpus delicti

rule is defined in CALCRIM No. 359 and its predecessor, CALJIC No. 2.72. (People v.

Rosales (2014) 222 Cal.App.4th 1254, 1258-1259.)

       As explained above, Rivas, supra, 214 Cal.App.4th 1410 held the first two

paragraphs of CALCRIM No. 359 correctly state the corpus delicti rule. However, Rivas

held the pattern instruction was confusing because of the third paragraph about the

declarant's identity: "[T]he reference to identity in CALCRIM No. 359 presents a risk of

confounding the jury by telling jurors that a defendant's inculpatory extrajudicial

statements, taken alone, do not suffice to allow the jury to convict the defendant of a

charged crime—and yet those statements, again taken alone, are entertainable to prove

the defendant's 'identity [as] the person who committed the crime' (CALJIC No. 359, 3d



                                             24
par.), which to any juror can only mean the defendant's identity as the perpetrator, i.e., the

guilty party. The instruction requires reconsideration." (Id. at p. 1429.)

       Rivas acknowledged that in People v. Foster (2010) 50 Cal.4th 1301 (Foster), the

California Supreme Court upheld CALJIC No. 2.72, the predecessor corpus delicti

instruction. Rivas distinguished Foster because "[t]he wording of CALJIC No. 2.72 is

quite different" and the predecessor instruction properly explained that identity was not

an element of the crime, whereas CALCRIM No. 359 failed to do so. (Rivas, supra, 214

Cal.App.4th at pp. 1429-1430.)6

       We disagree with Rivas and believe the better view is expressed in People v.

Rosales, supra, 222 Cal.App.4th 1254, which reviewed the purpose of the corpus delicti

rule, disagreed with Rivas, and held the third paragraph of CALCRIM No. 359 was not

confusing: "It is . . . well established that a defendant's inculpatory out-of-court

statements may . . . be relied upon to establish his or her identity as the perpetrator of a

crime. [Citations.] This is because the perpetrator's identity is not part of the corpus

delicti. [Citations.] [¶] CALCRIM No. 359, like CALJIC No. 2.72, clearly so states.


6       After the Rivas decision, the Judicial Counsel revised CALCRIM No. 359, which
now states: "The defendant may not be convicted of any crime based on (his/her) out-of-
court statement[s] alone. You may rely on the defendant's out-of-court statements to
convict (him/her) only if you first conclude that other evidence shows that the charged
crime [or a lesser included offense] was committed. [¶] That other evidence may be
slight and need only be enough to support a reasonable inference that a crime was
committed. [¶] This requirement of other evidence does not apply to proving the identity
of the person who committed the crime [and the degree of the crime]. If other evidence
shows that the charged crime [or a lesser included offense] was committed, the identity of
the person who committed it [and the degree of the crime] may be proved by the
defendant's statement[s] alone. [¶] You may not convict the defendant unless the People
have proved (his/her) guilt beyond a reasonable doubt."
                                              25
The corpus delicti rule is stated in the first two paragraphs of CALCRIM No. 359. The

law concerning proof of identity by a defendant's extrajudicial statements is correctly

stated in the third paragraph. There is no danger a jury will be unable to separate the two

rules any more than in CALJIC No. 2[.]72 which has been approved by our Supreme

Court . . . . As noted, CALJIC No. 2.72 states in part: 'The identity of the person who is

alleged to have committed a crime is not an element of the crime [nor is the degree of the

crime]. The identity [or degree of the crime] may be established by [a] [an] [confession]

[or] [admission].' CALCRIM No. 359 states with greater precision and economy of

language, 'The identity of the person who committed the crime [and the degree of the

crime] may be proved by the defendant's statement[s] alone.' CALCRIM No. 359

correctly states the law. [Citations.] There was no reasonable likelihood the jury was

confused and misapplied the instruction. Finally, CALCRIM No. 359 reminds the jury

that the accused may not be convicted unless the prosecution proves guilt beyond a

reasonable doubt. CALJIC No. 2.72, which was approved by our Supreme Court in

Foster, [supra, 50 Cal.4th 1301,] contains no such reminder." (Rosales, supra, 222

Cal.App.4th at pp. 1260-1261; see also People v. Reyes (2007) 151 Cal.App.4th 1491,

1498.)

         We agree with Rosales's analysis of the corpus delicti rule and CALCRIM No.

379, and similarly conclude the instruction was not confusing and did not mislead the

jury.



                                                 IV.

                                            26
             The Court Did Not Err by Instructing the Jury With CALCRIM No. 362

       Montenegro contends the court erred by instructing the jury with CALCRIM No.

362 regarding consciousness of guilt, an instruction that she maintains was not supported

by substantial evidence because she made no pretrial statements relating to Wiggins

murder; rather, her statements related to disposing of Wiggins's body. Montenegro

contends the jury instruction was argumentative because it "invited the jury to assume the

prosecution's version of the facts: namely, that the false and misleading statements

appellant made during the course of her attempts to dispose of the victim's body parts

meant she was the one who killed him." She also contends the instruction was confusing

and misleading because unlike CALJIC No. 2.03, the predecessor instruction, it did not

specify it applied to her statements made "before this trial."

A. Background

       Over Montenegro's objection, the court instructed the jury with the following

modified version of CALCRIM No. 362: "If the defendant made a false or misleading

statement relating to the charged crime, knowing the statement was false or intending to

mislead, that conduct may show she was aware of her guilt of the crime and you may

consider it in determining her guilt. [¶] If you conclude that the defendant made the

statement, it is up to you to decide its meaning and importance. However, evidence that

the defendant made such a statement cannot prove guilt by itself."7



7     The Judicial Council version of CALCRIM No. 362 reads: "If [the] defendant
[<insert name of defendant when multiple defendants on trial>] made a false or
misleading statement before this trial relating to the charged crime, knowing the
                                             27
B. Applicable Law

       In People v. Beyah (2009) 170 Cal.App.4th 1241, the court concluded: "[W]e

doubt that the CALCRIM Committee intended CALCRIM No. 362 to be used as it was

here: to permit an inference of consciousness of guilt based on knowingly false or

intentionally misleading statements in a defendant's trial testimony. Nevertheless, we

conclude that defendant suffered no prejudice, because California law makes clear that a

defendant's false trial testimony may, in proper circumstances, be considered as evidence

of consciousness of guilt." (Beyah, at pp. 1248-1249.)

C. Analysis

       We reject Montenegro's preemptive conclusion that CALCRIM No. 362 was

inapplicable because "[n]one of [her] pre-trial statements . . . pertained to the killing of

Samuel Wiggins." The language of CALCRIM No. 362 broadly refers to a defendant's

statement "relating to the charged crime." By its own terms, the instruction permitted the

jury to reasonably conclude that Montenegro's statements to Bell and his group to help

her get rid of Wiggins's body parts related to Montenegro's involvement in killing

Wiggins. Montenegro's contrary conclusion is based on a cramped interpretation of the

instruction. Further, to the extent the instruction left it to the jury to "decide" the

"meaning and importance" of Montenegro's statements, it was not argumentative because


statement was false or intending to mislead, that conduct may show (he/she) was aware
of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt.
[You may not consider the statement in deciding any other defendant's guilt.] If you
conclude that the defendant made the statement, it is up to you to decide its meaning and
importance. However, evidence that the defendant made such a statement cannot prove
guilt by itself."
                                               28
it did not direct the jury to adopt any particular interpretation of the facts. Finally, the

instruction specifically provided that Montenegro's words alone were not sufficient to

prove her guilt. In light of the above, we conclude the court did not err by instructing the

jury with CALCRIM No. 362.

                                V. There Was no Cumulative Error

       "Under the 'cumulative error' doctrine, errors that are individually harmless may

nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th

694, 772, fn. 32.) " '[A] series of trial errors, though independently harmless, may in

some circumstances rise by accretion to the level of reversible and prejudicial error.' "

(People v. Cunningham (2001) 25 Cal.4th 926, 1009.)

       However, as discussed ante, since we have found none of Montenegro's claims of

error prejudicial, a cumulative error argument cannot be sustained. No errors occurred,

which whether viewed individually or in combination, could possibly have affected the

jury's verdict in this case. (People v. Martinez (2003) 31 Cal.4th 673, 704.)




                                           DISPOSITION

       The judgment is affirmed.




                                              29
                             O'ROURKE, J.

WE CONCUR:


HUFFMAN, Acting P. J.


McINTYRE, J.




                        30
