Filed 10/5/15 P. v. Gallegos 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         D065337

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS255820)

MIRANDA MAE GALLEGOS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Stephanie

Sontag, Judge. Affirmed.



         Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lisa S. Jacobson

and Tami F. Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Miranda Mae Gallegos (defendant) of the first degree murder of

Scott Humbert (Pen. Code, § 187, subd. (a); further undesignated statutory references are

to the Pen. Code) and found true the allegation that she used a dangerous or deadly

weapon, namely a knife, in the commission of the murder (§ 12022, subd. (b)(1)). In a

bifurcated proceeding following the verdict, defendant admitted the truth of a charged

prior prison conviction (§ 667.5, subd. (b)).

       The trial court sentenced defendant to prison for 25 years to life for the murder,

plus one year each for the section 12022, subdivision (b)(1) enhancement and the

section 667.5, subdivision (b) enhancement, and imposed certain fines and fees.

Defendant timely appealed.

       On appeal, defendant raises four issues: (1) whether the trial court erred in failing

to instruct sua sponte on involuntary manslaughter, as a lesser included offense of

murder, based on unconsciousness due to voluntary intoxication; (2) whether the trial

court erred in excluding a digital versatile disc (the DVD) containing recorded evidence

of defendant's emotional reaction upon being told of Humbert's death during a postarrest

interview; (3) whether trial counsel rendered constitutionally ineffective assistance by

failing to request an instruction that would have informed the jury of the effect of

provocation in reducing first degree murder to second degree; and (4) whether the

cumulative prejudicial effect of these errors deprived defendant of due process and a fair

trial. Because defendant did not meet her burden of establishing reversible error, we will

affirm the judgment.



                                                2
                                             I.

                   FACTUAL AND PROCEDURAL BACKGROUND

       We review the record and recite the facts in a light most favorable to the judgment.

(People v. Hill (1998) 17 Cal.4th 800, 848-849.) There was never an issue as to the cause

of Humbert's death: around 7:45 p.m. on April 1, 2012, defendant stabbed Humbert with

a knife, and he died later that evening as a result of a single stab wound that passed

through two of his ribs and entirely through his heart.

A.     Introduction

       At the time of his death, Humbert was 25 years old, defendant was 35 years old,

and they had known each other for approximately three years. Throughout most of this

time, they had a romantic relationship living together, but they often would argue, break

up and get back together. There was evidence that, during their relationship, Humbert

and appellant loved each very much, and Humbert could act jealously with or without

cause. On a daily basis, they both received methadone and used illicit drugs (mostly

heroin and methamphetamine); defendant also had a prescription for the drug Klonopin,

an antianxiety medication.

       Just days before his death, Humbert moved out of the room he had been sharing

with defendant at a house in La Mesa and moved in with his mother, Dorothy Ortiz-

Tello, who lived in a house on Paradise Drive in National City. Humbert had moved

back to his mother's house, because from his perspective the relationship with defendant

was over; consistently, defendant understood that Humbert had left her.



                                             3
       Ortiz-Tello lived with and took care of her aging mother (Humbert's grandmother),

who suffered from dementia. At the time Humbert moved into Ortiz-Tello's house in late

March 2012, one of Ortiz-Tello's brothers, Thomas Ortiz (Humbert's uncle), was staying

there; and Humbert and Ortiz shared a room off the kitchen. Marcos and Sara Rodriguez

lived immediately next door to Ortiz-Tello.

B.     The Homicide

       Immediately preceding their break-up, Humbert, defendant and Marlon San Juan

(a friend of Ortiz-Tello's boyfriend) were smoking methamphetamine in a room at the

house in La Mesa. Humbert and defendant began fighting, Humbert decided to move

back to Ortiz-Tello's, and San Juan drove him there.

       A day or two later — during the late afternoon and early evening of April 1, 2012

— Ortiz-Tello's house was full: Ortiz-Tello was in the kitchen cooking dinner; Ortiz-

Tello's mother was in her room off to one side of the kitchen; Humbert and Ortiz were in

their living area off to another side of the kitchen, watching TV and talking; and Ortiz-

Tello's boyfriend was in a lower level of the house playing the guitar. Ortiz-Tello

answered two telephone calls from defendant, who asked to speak with Humbert.

Because Humbert had told Ortiz-Tello that he did not want to talk with defendant, in the

first call Ortiz-Tello told defendant that Humbert was not there. Defendant's response

indicated to Ortiz-Tello that defendant did not believe her. Defendant called back, telling

Ortiz-Tello that she (defendant) was coming to the house and "if something happens to

[Humbert], that's on him."



                                              4
       Ortiz-Tello, who was upset there might be trouble, told Humbert about the calls;

he told her not to worry, assuring her that he would handle the situation. Approximately

30-45 minutes later, defendant arrived at Ortiz-Tello's house. According to defendant, at

this point in time she had been up for days, doing heroin every six hours and smoking

methamphetamine at least every four hours — in addition to taking the prescribed

methadone and Klonopin.

       Defendant knocked on the side door, which was on a small porch next to the

kitchen, outside of the room where Humbert and Ortiz were living. (The front door led

into a living room, which Ortiz-Tello and her mother used as their bedroom.) Ortiz-Tello

remained in the kitchen, while Humbert left the room he shared with his uncle, opened

the side door, stepped out onto the porch and closed the door behind him. Concerned

about Humbert's safety, Ortiz-Tello hurried to the door and put her ear to the crack to

listen. Ortiz-Tello heard defendant say to Humbert, "He raped me, and you're not going

to do anything about it? I could kill you right now, you know."

       The doorknob then wiggled, startling Ortiz-Tello and causing her to retreat toward

the kitchen so as not to be caught eavesdropping. Humbert entered, closing the door

behind him with one hand and holding his chest over his heart with the other hand. In

response to Ortiz-Tello's inquiry to Humbert whether he was all right, without saying

anything Humbert lifted his hand off his chest, looked at his hand as a stream of blood

spurted out of his chest, and quickly replaced his hand on his chest.

       Shock and panic followed. Ortiz-Tello screamed loudly, "she stabbed him, she

stabbed him," and yelled to Ortiz for help. All of this unnerved Ortiz-Tello's elderly

                                             5
mother in the next room, and she began to cry. While Ortiz-Tello was attempting to calm

her mother, Ortiz called 911 at 7:48 p.m. Humbert then made his way through the

kitchen into Ortiz-Tello's bedroom and out the front door, saying "I got to go" — which

Ortiz-Tello understood to mean to go "to the hospital."

         Once Humbert came outside, defendant marched up the driveway (from the street

to the house) toward him, taking big steps and swinging her arms. Defendant was upset,

and when she reached Humbert, defendant began yelling directly into his ear and

gesturing wildly. Humbert, while still holding his hand over his chest, tried to get away

from defendant by turning his back on her and heading toward the house. As Humbert

entered the house, Ortiz-Tello followed him in, slamming and locking the iron screen

door so as to keep defendant outside. At this point, defendant and Ortiz-Tello exchanged

insults, each calling the other various names and using extremely profane language.

According to defendant, because she did not want to hear Ortiz-Tello's hysteria, she

turned and left, going down the driveway to the street and walking north on Paradise

Drive.

         Defendant testified that when she left Ortiz-Tello's residence, she (defendant) did

not know she had hurt Humbert, despite the facts that: Humbert had asked her "Why did

you stab me?" before he returned to the house for the first time; Ortiz-Tello had accused

her of stabbing Humbert through the locked screen door during the profanity-laced

exchange immediately before defendant left; and there was a trail of blood on the ground

where Humbert and defendant had just been talking in the driveway.



                                               6
       Once defendant left, Humbert again went outside to the driveway, soon receiving

assistance from Ortiz and Ortiz-Tello's boyfriend. Ortiz was helping Humbert stand

upright, and the boyfriend had gotten a towel and was compressing it on the wound.

Humbert meanwhile was dragging himself to the next door neighbors' (the Rodriguezes')

front door, which was just steps away from the driveway. Humbert pounded on the door,

and by the time Mr. Rodriguez answered, Humbert collapsed. Mr. Rodriguez took over,

physically carrying Humbert, as Ms. Rodriguez drove their car down the driveway so that

Mr. Rodriguez could place Humbert across the back seat in order to transport him to a

hospital. By the time they reached the street, police officers had responded to the 911

call, and the officers ordered the Rodriguezes to pull over and wait for the paramedics

who arrived a minute later.

       Humbert died at the hospital at 9:18 p.m. on April 1, 2012. The cause of death

was a single stab wound on the left side of his chest, which was indicated by a track from

an instrument, "possibly a knife," that had passed through a space between two ribs and

entirely through his heart.

       In the meantime, as soon as defendant left Ortiz-Tello's house, she called a friend

for a ride, telling him that she thought she might have stabbed someone. She then walked

behind the house and a bridge, where she ditched the knife she had been carrying. From

there, defendant walked to a market and bought cigarettes at 7:56 p.m. — which was less

than 10 minutes after Ortiz had called 911. Defendant made another call for a ride, this

time to San Juan. As she wandered around the streets waiting for San Juan, defendant ran

into an acquaintance (from a prior incarceration), Stacey Bancroft. Bancroft explained

                                             7
that she needed a ride,1 and defendant explained that she needed a place to stay; and they

agreed that after defendant helped Bancroft get to where she was going, defendant could

stay with Bancroft in her hotel room. Waiting for San Juan to pick them up, defendant

went to a liquor store and bought a beer. Eventually, San Juan got them, took them to

where Bancroft wanted to go and then drove them both to Bancroft's hotel room, where

they all smoked methamphetamine. San Juan left the women in the hotel room,

whereupon Bancroft also left, and defendant remained behind making telephone calls.

Bancroft was not gone very long, but by the time she returned, police were at the hotel;

shortly thereafter, the police knocked on the door of the room where the two women were

staying, and Bancroft opened the door.

       The police arrested defendant, advising her that she was under arrest for murder.

A later toxicology report revealed that approximately eight hours after the stabbing,

defendant had in her system amphetamines (methamphetamine and amphetamine),

opiates (morphine and codeine)2 and benzodiazepines (Xanax, Klonopin and 7-amino

Clonazepam).3




1      At the time, Bancroft was a prostitute, and she needed a ride to meet a client.

2     The People's forensic toxicologist testified that the amounts of morphine and
codeine found in defendant's system indicated use of heroin that had metabolized.

3      A toxicology report revealed that at the time Humbert was brought to the hospital,
he had heroin and methamphetamine in his system.

                                             8
C.    The Trial

      The case proceeded to trial over the course of nine days in January 2014. The

parties called over 20 witnesses and introduced nearly 100 exhibits into evidence.

      We described the principal facts of the People's case immediately above. The

defense theory was that defendant stabbed Humbert by accident. Defendant testified that

at the time of the incident, she was "very intoxicated," did not remember stabbing

Humbert and never intended to hurt him.

      According to defendant, she went to Ortiz-Tello's house on April 1, 2012, to work

things out with Humbert to the point where, even if they remained broken up, they still

would be friends. As they talked near the side door, Humbert began raising his voice

when he found out that San Juan had just driven defendant to Ortiz-Tello's for this

confrontation. Defendant then saw that Humbert had a knife in his hand, as he looked up

the street for San Juan. Concerned, defendant pulled out a knife that she was carrying in

her purse. According to defendant, as Humbert then came toward her, she felt like she

was going to trip over a bump in the cement as she was backing up. At that point,

"everything . . . happened really fast" — with defendant thinking that she may have

pushed Humbert. At the time, defendant did not understand why Humbert had asked her

why she stabbed him, because she did not understand that he had been hurt. Humbert

then told defendant that he loved her and to "hold on," as he turned and went back into

the house through the side door. Even when he returned to the driveway moments later

(after he had been inside the house, where he spurted blood when he lifted his hand off

his chest), he appeared normal to defendant.

                                               9
       The jury was instructed on four potential verdicts: first degree murder, second

degree murder, voluntary manslaughter (heat of passion) and involuntary manslaughter

(lawful act in an unlawful manner with criminal negligence).

       The jury found defendant guilty of first degree murder and found true the

allegation that she used a dangerous or deadly weapon, a knife, in the commission of the

murder.4

                                             II.

                                       DISCUSSION

       On appeal, defendant raises three independent issues and a fourth argument that

the cumulative prejudicial effect of those errors deprived her of due process and a fair

trial. None suggests a basis on which to reverse the judgment.

A.     Jury Instruction

       Defendant argues that the trial court erred in failing to instruct sua sponte on

involuntary manslaughter, as a lesser included offense of murder, based on

unconsciousness due to voluntary intoxication. Defendant contends that, because this

theory was supported by substantial evidence, the court was required to instruct with

CALCRIM No. 626 (or a substantially similar instruction).



4       The clerk's minutes indicate the result of the polling of the jurors was
"10 YES 0 NO." However, the reporter's transcript confirms that all 12 jurors answered
"Yes" to the question "Was this and is this your verdict?" and that the clerk "record[ed]
12 affirmative responses." Because no party raises any issue and because there is nothing
to indicate the reporter's transcript may be inaccurate, "we presume the court reporter
accurately reported the proceedings." (People v. Anzalone (2013) 56 Cal.4th 545, 552,
fn. 6.)
                                             10
       CALCRIM No. 626 is entitled "Voluntary Intoxication Causing Unconsciousness:

Effects on Homicide Crimes (Pen. Code, § 29.4[5])" and provides in full:

       "Voluntary intoxication may cause a person to be unconscious of his or her
       actions. A very intoxicated person may still be capable of physical
       movement but may not be aware of his or her actions or the nature of those
       actions.

       "A person is voluntarily intoxicated if he or she becomes intoxicated by
       willingly using any intoxicating drug, drink, or other substance knowing
       that it could produce an intoxicating effect, or willingly assuming the risk
       of that effect.

       "When a person voluntarily causes his or her own intoxication to the point
       of unconsciousness, the person assumes the risk that while unconscious he
       or she will commit acts inherently dangerous to human life. If someone
       dies as a result of the actions of a person who was unconscious due to
       voluntary intoxication, then the killing is involuntary manslaughter.

       "Involuntary manslaughter has been proved if you find beyond a reasonable
       doubt that:

              "1. The defendant killed without legal justification or excuse;

              "2. The defendant did not act with the intent to kill;

              "3. The defendant did not act with a conscious disregard for human
              life;


5      "(a) No act committed by a person while in a state of voluntary intoxication is less
criminal by reason of his or her having been in that condition. Evidence of voluntary
intoxication shall not be admitted to negate the capacity to form any mental states for the
crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act.
       "(b) Evidence of voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required specific intent, or, when charged
with murder, whether the defendant premeditated, deliberated, or harbored express
malice aforethought.
       "(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking
by any other means of any intoxicating liquor, drug, or other substance." (Pen. Code,
§ 29.4.)

                                             11
       "AND

              "4. As a result of voluntary intoxication, the defendant was not
              conscious of (his/her) actions or the nature of those actions.

       "The People have the burden of proving beyond a reasonable doubt that the
       defendant was not unconscious. If the People have not met this burden,
       you must find the defendant not guilty of (murder/ [or] voluntary
       manslaughter)."

       1.     Law

       Involuntary manslaughter is "the unlawful killing of a human being without

malice" "in the commission of an unlawful act, not amounting to a felony; or in the

commission of a lawful act which might produce death, in an unlawful manner, or

without due caution and circumspection." (§ 192, subd. (b).) Our high court has

described involuntary manslaughter as "criminally negligent unlawful homicide."

(People v. Ochoa (1998) 19 Cal.4th 353, 423 (Ochoa).) Involuntary manslaughter is a

lesser included offense of murder. (People v. Thomas (2012) 53 Cal.4th 771, 813.)

       Because "every" lesser included offense that is supported by substantial evidence

"must" be presented to the jury, a trial court must "instruct, sua sponte, on all theories of a

lesser included offense which find substantial support in the evidence." (People v.

Breverman (1998) 19 Cal.4th 142, 155, 162 (Breverman).) In this context, substantial

evidence means " ' "evidence from which a jury composed of reasonable [persons] could

. . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Id. at

p. 162.) In determining the substantiality of evidence, a trial court is to consider only the

"legal sufficiency" of the evidence, not its weight or the credibility of the witnesses who

presented the evidence. (Id. at p. 177.)

                                              12
       Thus, as applicable here, a person who is charged with murder is entitled to a sua

sponte instruction on involuntary manslaughter "when there is evidence deserving of

consideration that the defendant was unconscious due to voluntary intoxication."6

(Halvorsen, supra, 42 Cal.4th at p. 418.) Under this standard: voluntary intoxication is

"the voluntary ingestion, injection, or taking by any other means of any intoxicating

liquor, drug, or other substance" (§ 29.4, subd.(c)); and an unconscious act " 'is one

committed by a person who because of [voluntary intoxication] is not conscious of acting

and whose act therefore cannot be deemed volitional' " (People v. Ferguson (2011) 194

Cal.App.4th 1070, 1083 (Ferguson)). In this latter regard, unconsciousness "need not

mean that the actor lies still and unresponsive[;] . . . unconsciousness ' "can exist . . .

where the subject physically acts in fact but is not, at the time, conscious of acting." ' "

(Ochoa, supra, 19 Cal.4th at pp. 423-424.)

       We do not take into consideration the trial court's inquiry and defense counsel's

response that she was not arguing for an involuntary manslaughter instruction. Whenever

substantial evidence supports an involuntary manslaughter finding based on

unconsciousness due to voluntary intoxication, the trial court is required sua sponte to




6       Where, in contrast, the unconsciousness results from other than voluntary
intoxication, the unconsciousness is a complete defense to the charged crime. (§ 26,
class Four; People v. Halvorsen (2007) 42 Cal.4th 379, 417 (Halvorsen).) The difference
is that, if the unconsciousness results from intoxication voluntarily induced, " 'the
requisite element of criminal negligence is deemed to exist irrespective of
unconsciousness, and a defendant stands guilty of involuntary manslaughter if he
voluntarily procured his own intoxication.' " (Ochoa, supra, 19 Cal.4th at p. 423.)

                                               13
instruct the jury accordingly, regardless of the wishes of defense counsel. (Halvorsen,

supra, 42 Cal.4th at p. 418; Breverman, supra, 19 Cal.4th at pp. 158, 162.)

       We review de novo whether a jury instruction on the lesser included offense of

involuntary manslaughter should have been given (People v. Waidla (2000) 22 Cal.4th

690, 733; People v. Turk (2008) 164 Cal.App.4th 1361, 1367), viewing the evidence in a

light most favorable to defendant (People v. Millbrook (2014) 222 Cal.App.4th 1122,

1137 (Millbrook)).

       2.     Analysis

       The record contains substantial evidence that defendant was voluntarily

intoxicated for purposes of section 29.4, subdivision (c). At the time of the stabbing,

defendant had been up for days, doing heroin every six hours, smoking

methamphetamine at least every four hours and taking the prescribed methadone and

Klonopin.

       The only issue, therefore, is whether the record contains substantial evidence that

defendant was unconscious. Ochoa is instructive in this regard.

       In Ochoa, in addition to other crimes committed against other victims, Ochoa was

charged with and convicted of the kidnap, rape and murder of Lacy Chandler. (Ochoa,

supra, 19 Cal.4th at pp. 380-381.) At trial, the evidence supported Ochoa's argument that

his consumption of "an unprecedented quantity of cocaine on the night of the murder

caused him to lose his faculties." (Id. at p. 391.) In particular, on appeal Ochoa relied on

a portion of his taped confession played for the jury, in which he stated: " 'I don't know

what was going through my mind, I was so high.' " (Id. at p. 422.) Given this evidence,

                                             14
Ochoa argued that the trial court erred by not sua sponte instructing the jury on

involuntary manslaughter based on voluntary intoxication causing unconsciousness.

(Ibid.)

          The Supreme Court disagreed, focusing on Ochoa's actions immediately preceding

the homicide. When Ochoa first approached Chandler, he "had the presence of mind" to

tell her to be quiet, to display a knife and to take her to a secluded area. (Ochoa, supra,

19 Cal.4th at p. 424.) He asked her to remove her clothes, and when she later asked

whether she could put them back on, he gave permission. (Ibid.) This, the court ruled,

"show[ed] a methodical, calculated approach to the crimes." (Ibid.) Reflecting on the

potential consequences of allowing Chandler to live, Ochoa then killed her —

establishing malice aforethought, according to the court. (Ibid.) Ochoa was not entitled

to an involuntary manslaughter instruction, because Ochoa's statement that he did not

know what was going through his mind was "insufficient to permit a jury composed of

reasonable individuals to find that he committed involuntary manslaughter." (Ibid.) At

best, Ochoa's intoxication "clouded his judgment and caused him to make foolish

choices"; it did not result in a lack of malice. (Ibid.)

          Likewise, here too, while defendant's intoxication likely clouded her judgment and

caused her to make foolish choices, the intoxication did not render defendant unconscious

when she stabbed Humbert. (Ochoa, supra, 19 Cal.4th at p. 424; Ferguson, supra, 194

Cal.App.4th at p. 1083.) According to defendant, she was angry and upset when

Humbert left her; and very early on April 1, 2012 (the date of the stabbing), she had

texted her landlord that she felt like stabbing "the next dude who seems like he's fucking

                                              15
with me."7 That evening, defendant called Ortiz-Tello's house a number of times, and

when she was not able to speak with Humbert, within less than an hour, she arranged for

a ride to and arrived at the house in National City. According to defendant, her specific

intent was to work things out, and hopefully remain friends, with Humbert once she got

there. After Humbert came out to talk with her, defendant recalled explaining to him

some of what she had done earlier in the day — specifically that she had gone to get

money from one person and had used it to pay back another person — after which

defendant and Humbert argued a bit about money. Defendant also remembered that what

had been a normal conversation turned loud once Humbert found out that it was San Juan

who had given her a ride to the house; indeed, she also remembered that, in reacting to

this information, Humbert began looking up the street for San Juan. At this point,

defendant testified, she saw a knife in Humbert's hand as he was asking about and

looking up the street for San Juan — to which she responded by pulling out a knife that

she was carrying in her purse. As Humbert then approached defendant with a knife in his

hand, she recalled moving backward and feeling like she was going to go over a bump in

the cement in the driveway. Of note, just seconds prior to the stabbing, defendant was

able to recollect her exact thoughts: is Humbert mad at San Juan? is Humbert mad at

her? and, why? Defendant then testified that she was "confused"; that "everything . . .


7      Viewing this evidence in a light most favorable to defendant — as we must
(Millbrook, supra, 222 Cal.App.4th at p. 1137) — we accept defendant's testimony that,
when she wrote those words, she did not intend them for Humbert. We nonetheless
consider the statement as evidence of defendant's state of mind regarding the break-up
and her propensity for the type of violence that occurred later the same day.

                                            16
happened really fast"; that she "just reacted"; that "[t]here was no thought process" to

harm Humbert; that "[i]t just happened and everything stopped"; and that she may have

"pushed him or something." This is the only time at which defendant's memory failed

her.

       Significantly, despite her alleged unconsciousness at the time of the stabbing,

defendant also was able to remember exactly what Humbert said and did immediately

after the stabbing: he asked her why she stabbed him; he told her he loved her; she told

him she loved him; and he told her to "hold on" as he turned around and went into the

house. After Humbert went back inside, defendant also recalled walking up the street,

calling a friend for a ride (and telling him that she thought she might have stabbed

someone), going behind the house and a bridge, ditching the knife, walking to a market

and buying cigarettes — all of this within 10 minutes of the stabbing.

       Because a "[d]efendant's professed inability to recall the event, without more, [i]s

insufficient to warrant an unconsciousness instruction . . ." (People v. Rogers (2006) 39

Cal.4th 826, 888 (Rogers)), we are not persuaded by defendant's argument. "The

complicated and purposive nature of h[er] conduct" both before and after the stabbing

"makes clear that [s]he did not lack awareness of h[er] actions during the course of the

offense." (Halvorsen, supra, 42 Cal.4th at p. 418; see People v. Heffington (1973) 32

Cal.App.3d 1, 10 [no "ineluctable rule" that a defendant's inability to remember supplies

an evidentiary foundation for an unconsciousness instruction].)

       Nor are we persuaded by the authorities on which defendant relies, People v.

Bridgehouse (1956) 47 Cal.2d 406 and People v. Wilson (1967) 66 Cal.2d 749. Although

                                             17
in both cases the defendants did not recall shooting the victims (Bridgehouse, at pp. 410-

411, 412; Wilson, at p. 755), both cases are distinguishable. In Bridgehouse, the

defendant had a "very vague memory" of the victim rising from the couch prior to the

shooting and his recollection of speaking with the victim just before the shooting was

"very hazy"; the defendant did not remember taking out the gun or what he did with the

gun after the shooting. (Bridgehouse, at pp. 410, 412.) In Wilson, the defendant did not

recall what happened during the multiple shootings, did not remember shooting the gun

in one of the rooms (and did not know at the time whether anyone was even in the room),

and did not know where or when he was arrested shortly after the shootings. (Wilson, at

pp. 755-756.) In contrast, here defendant testified in detail as to the events immediately

preceding and immediately following the stabbing — including where her knife was at all

times, except as it entered and exited Humbert's chest.

       For these reasons, because the record does not contain substantial evidence that

defendant was unconscious when she stabbed Humbert, the trial court did not err in

failing to instruct the jury on voluntary intoxication causing unconsciousness.

       In any event, even if we assume that the jury should have been instructed on the

lesser included offense (involuntary manslaughter based on voluntary intoxication

causing unconsciousness), we may reverse a judgment only if the error "resulted in a

miscarriage of justice." (Cal. Const., art. VI, § 13; see Code Civ. Proc., § 475.) We

apply the standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson) to

determine whether the failure to instruct on the lesser included offense resulted in a



                                             18
miscarriage of justice requiring reversal.8 (Id. at pp. 832, 836.) Under this standard,

such error is reversible only when there is a reasonable probability that the appellant

would have received a more favorable result had the instruction been given. (Id. at

p. 836.) For purposes of this analysis, a "reasonable probability" is one sufficient to

undermine the confidence in the conviction. (Strickland v. Washington (1984) 466 U.S.

668, 694 (Strickland).) "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.) We may consider the relative

strength of the evidence in support of the judgment compared to the relative weakness of

the evidence in support of a different outcome. (Ibid.) The appellant bears the burden of

establishing prejudice. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)



8       Defendant argues that the (assumed) error is of federal constitutional dimension,
requiring a reversal unless we find beyond a reasonable doubt that the error was harmless
under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). In part, defendant
bases his constitutional argument on the suggestion that, where intoxication has been
established, "absence-of-unconsciousness" is "an essential element of . . . of the charged
murder offense." We disagree. "[C]onsciousness is not an element of the offense of
murder (nor of any offense)." (People v. Babbitt (1988) 45 Cal.3d 660, 693; accord,
People v. Mathson (2012) 210 Cal.App.4th 1297, 1321-1322.) Rather,
"[u]nconsciousness is a defense." (Babbitt, at p. 693; accord, Mathson, at p.1321.)
        In any event, our Supreme Court has rejected numerous times the suggestion that
failure to instruct sua sponte on a lesser included offense requires a harmless error
analysis under Chapman. Quoting from Breverman, supra, 19 Cal.4th at pages 169, 178,
the court recently explained: Because " 'the rule requiring sua sponte instructions on all
lesser necessarily included offenses supported by the evidence derives exclusively from
California law[,]' . . . 'in a noncapital case, error in failing sua sponte to instruct, or to
instruct fully, on all lesser included offenses and theories thereof which are supported by
the evidence must be reviewed for prejudice exclusively under [Watson].' " (People v.
Beltran (2013) 56 Cal.4th 935, 955, italics added, citations omitted.)

                                              19
       In the present appeal, the alleged instructional error is harmless. Here, just as in

People v. Koontz (2002) 27 Cal.4th 1041, "the jury necessarily decide[d] the factual

questions posed by the omitted instruction[] adversely to defendant under other properly

given instructions." (Id. at p. 1086.) " 'In such cases the issue should not be deemed to

have been removed from the jury's consideration since it has been resolved in another

context, and there can be no prejudice to the defendant since the evidence that would

support a finding that only the lesser offense was committed has been rejected by the

jury.' " (People v. Wright (2006) 40 Cal.4th 81, 98.) The court instructed the jury on first

or second degree murder with malice aforethought (CALCRIM No. 520); deliberation

and premeditation for first degree murder (CALCRIM No. 521); voluntary manslaughter,

heat of passion (CALCRIM No. 570); voluntary manslaughter, imperfect self-defense

(CALCRIM No. 571); involuntary manslaughter, lawful act in an unlawful manner with

criminal negligence (CALCRIM No. 580); and, significantly, effects of voluntary

intoxication on homicide crimes (CALCRIM No. 625).

       Thus, as relevant to our consideration of what the jury "is likely to have done" had

it been instructed under CALCRIM No. 626 (Breverman, supra, 19 Cal.4th at p. 177), the

jury was instructed in part as follows with regard to murder:

       "The defendant is charged in count 1 with murder in violation of Penal
       Code section 187. To prove that the defendant is guilty of this crime, the
       People must prove that . . . when the defendant acted, she had a state of
       mind called malice aforethought . . . . There are two kinds of malice
       aforethought, express malice and implied malice. Proof of either is
       sufficient to establish the state of mind required for murder. The defendant
       acted with express malice if she unlawfully intended to kill. The defendant
       acted with implied malice if . . . she intentionally committed an act . . . the


                                             20
       natural and probable consequences of . . . were dangerous to human life.
       (Italics added; see CALCRIM No. 520.)

       "The defendant is guilty of first degree murder if the People have proved
       that she acted willfully, deliberately, and with premeditation. The
       defendant acted willfully if she intended to kill. . . ." (Italics added; see
       CALCRIM No. 521.)

The jury was also instructed that it could consider evidence of defendant's voluntary

intoxication "in deciding whether the defendant acted with an intent to kill or the

defendant acted with deliberation and premeditation." (Italics added; see CALCRIM

No. 625.)

       Absent a showing to the contrary, we presume the jury followed the instructions

given. (People v. Harris (2013) 57 Cal.4th 804, 857.)

       Having convicted defendant of murder, therefore, the jury necessarily decided:

(1) when she acted, she had malice aforethought — either she "intended to kill" Humbert

(express malice) or she "intentionally committed an act" the natural consequences of

were dangerous to human life (implied malice) (see CALCRIM No. 520); and

(2) defendant's voluntary intoxication did not affect "whether the defendant acted with an

intent to kill" (see CALCRIM No. 625). Likewise, having convicted defendant of murder

in the first degree, the jury necessarily decided: (1) defendant "acted willfully,

deliberately, and with premeditation" — with willfulness defined as an "inten[t] to kill"

(see CALCRIM No. 521); and (2) defendant's voluntary intoxication did not affect

"whether the defendant acted with an intent to kill or . . . with deliberation and

premeditation" (see CALCRIM No. 625).



                                             21
       Given these findings as to first degree murder, we are satisfied that, had the jury

been instructed under CALCRIM No. 626, the jury is not likely to have found that

defendant's voluntary intoxication caused unconsciousness. Even without an instruction

on unconsciousness, defendant "was permitted to use the same underlying facts to

mitigate the crime. Thus, in finding defendant guilty of murdering [Humbert], the jury

necessarily rejected defendant's [intoxication causing unconsciousness] defense."

(People v. Maury (2003) 30 Cal.4th 342, 422; see Rogers, supra, 39 Cal.4th at p. 884

[because "[t]he jury rejected the lesser options and found defendant guilty of first degree

premeditated murder . . . , there is no reasonable probability that, had the jury been

instructed on involuntary manslaughter, it would have chosen that option"].)

B.     The DVD

       Defendant argues that the trial court erred in excluding the DVD.9 At trial,

although the court did not view the DVD, defendant's counsel described it as "a video of

[defendant] after she's arrested by the police when she is informed by Detective Villariasa

that [Humbert]'s dead." Defendant's attorney explained that she was offering this

evidence of defendant's reaction to the news of Humbert's death to show the homicide


9      At defendant's request, we have viewed the DVD, trial exhibit 129. There is no
identifying information on the recording. It is 43 minutes long and appears from context
to have commenced at approximately 2:45 a.m. on April 2, 2012 (approximately seven
hours after the stabbing). At approximately 2:53 a.m., after advising defendant of her
rights under Miranda v. Arizona (1966) 384 U.S. 436, an unidentified male voice tells
defendant that Humbert is dead — after which defendant's reactions can be seen and
heard. These reactions include rocking and crying and other emotions with little, if any,
verbal communications other than "Oh my God," "no way," "why, why," "no, no,"
"please, please," et cetera.

                                             22
was neither premeditated nor deliberate. The district attorney objected on the grounds

that such evidence was irrelevant, cumulative and prejudicial. (See Evid. Code, §§ 210,

350-352.)

       Overruling the objections on those grounds, the court sua sponte sustained a

hearsay objection, just as the district attorney indicated he was getting there. The court

reasoned that, because defendant's reaction was a statement, it was hearsay,10 and that

although such evidence might be admissible if offered by the People (presumably as an

exception to the hearsay rule as a statement against a party (Evid. Code, § 1220)), it was

inadmissible when offered by defendant in support of her case.

       1.     Law

       The hearsay rule precludes the admission into evidence of "a statement that was

made other than by a witness while testifying at the hearing and that is offered to prove

the truth of the matter stated." (Evid. Code, § 1200, italics added.) In this context, a

" '[s]tatement' " is either an "oral or written verbal expression" or "nonverbal conduct of a

person intended by him as a substitute for oral or written verbal expression." (Id., § 225.)

Where, as argued by defendant, the evidence is "nonverbal, nonassertive, emotional

behavior," it is not a substitute for oral or written verbal expression and, thus, is "not

subject to the hearsay rule." (People v. Rogers (2009) 46 Cal.4th 1136, 1162; see People

v. Jurado (2006) 38 Cal.4th 72, 129 [because emotional displays were "nonassertive


10    We understand the court's comment to mean that defendant's reaction was an out-
of-court statement being offered for the truth of the matter asserted for purposes of the
hearsay rule, Evidence Code section 1200.

                                              23
conduct," they were not hearsay]; People v. Snow (1987) 44 Cal.3d 216, 227 [after news

of a death, silence and lack of emotion were "nonassertive responses or reactions" and

thus not hearsay].)

       We review for an abuse of discretion the trial court's determination to exclude

evidence based on the hearsay rule. (People v. Pirwani (2004) 119 Cal.App.4th 770,

787.) Under this standard, the trial court's ruling will not be disturbed in the absence of a

showing by defendant that the court exercised its discretion "in an arbitrary, capricious,

or patently absurd manner that resulted in a manifest miscarriage of justice." (People v.

Rodriguez (1999) 20 Cal.4th 1, 9-10.)

       2.     Analysis

       We will assume without deciding that the trial court erred in ruling that the DVD

contained hearsay.11 For the reasons we explained in part II.A.2., ante, however, we will

not reverse the judgment unless defendant meets her burden of establishing a reasonable




11      Relying on the principle that an appellate court should not reverse a correct legal
ruling merely because the trial court gave an incorrect reason (citing People v. Zapien
(1993) 4 Cal.4th 929, 976), the People argue that the DVD was properly excluded on the
grounds that the evidence was irrelevant, cumulative and prejudicial. The problem with
this argument is that the trial court overruled these objections, and the People do not
attempt to establish that the rulings were erroneous — i.e., that they were an abuse of the
trial court's discretion. (Code Civ. Proc., § 906 [appellate courts can review potential
error on respondent's request for purpose of determining whether appellant suffered
prejudice]; Citizens for Uniform Laws v. County of Contra Costa (1991) 233 Cal.App.3d
1468, 1472 [respondent may assert trial court error where, if established, the result is an
affirmance].) By this argument, the People are asking that we rule as a matter of law that
the DVD was irrelevant, cumulative and prejudicial — which we decline to do.

                                             24
probability that she would have received a more favorable result had the evidence been

admitted. (Watson, supra, 46 Cal.2d at p. 836.)

       Initially, we disagree with defendant's characterization that the prosecution's case

"was anything but a strong one." The People presented a solid case, as we set forth at

part I.B., ante.

       In attempting to establish prejudice, defendant argues that her emotional reaction

on the DVD "would have constituted objective corroborating evidence supporting [her]

testimony to the effect that she did not expect Humbert to die until she was told he was

dead." (Italics added.) This argument is not supported by the record. The DVD shows

defendant's emotions at almost 3:00 a.m. (See fn. 10, ante.) However, as defendant

affirmatively acknowledges in her opening brief, she testified at trial that she was first

told that Humbert died when the police detective arrested her for murder in Bancroft's

hotel room, many hours before the events recorded on the DVD:

       "A:     . . . I think it was the detective right there, he tells me, you're under
       arrest.

               "And I tell him, for what.

               "And he tells me, for murder.

               "And I just couldn't believe it, [Humbert] was dead.

       "Q:     He told you that in the hotel room?

       "A:     Uh-huh.

       "Q:     And what did you think?

       "A: I just — I was floored. Like I just couldn't believe it." (Italics
       added.)


                                               25
The fact that defendant's emotions were recorded hours later on the DVD when she was

again told of Humbert's death at best evidences that, at the time, defendant did not recall

what she was told and understood hours earlier.

       Defendant further suggests that she was entitled to show the jury her emotional

reaction, because without it the circumstantial evidence supporting the defense theory

(that the stabbing was unintentional and accidental) "was in equipoise" with the

prosecution's theory (that the stabbing was intentional and deliberate). By focusing on

the circumstantial evidence of what happened in the driveway at the time defendant

stabbed Humbert, however, defendant fails to recognize and acknowledge the direct

evidence of the intentional and deliberate nature of the attack: Earlier in the day of the

incident, defendant texted her landlord that she felt like stabbing "the next dude who

seems like he's fucking with me"; less than an hour before defendant stabbed Humbert,

she told Ortiz-Tello that she (defendant) was coming to see Humbert and "if something

happens to [Humbert], that's on him"; just prior to the stabbing, when she and Humbert

were arguing in the driveway at Ortiz-Tello's house and he told her that he was not

getting back together with her, defendant said she "just couldn't take it anymore"; and

immediately before Humbert reentered the house with his hand pressed to his chest and

blood spurting out, defendant said to Humbert, "I could kill you right now, you know."

The fact that, at trial, defendant denied or may not have recalled making those statements

is irrelevant to our determination whether the record contains substantial evidence in

support of the judgment.



                                             26
       Finally, defendant contends that the DVD would have validated and corroborated

her testimony that she was "heavily intoxicated and under the influence of controlled

substances." First, the evidence of defendant's intoxication was overwhelming and

undisputed: At the point in time when defendant arrived at Ortiz-Tello's house,

defendant had been up for days, doing heroin every six hours and smoking

methamphetamine at least every four hours, in addition to taking the prescribed

methadone and Klonopin; and defendant had ingested even more drugs during the hours

after the stabbing and before her arrest. Moreover, there was nothing on the DVD that

would have told the jury that defendant's behavior was due to drug use; to the contrary,

on the DVD there is the suggestion that defendant's behavior was due to having just been

awakened in order to answer questions.

       For the foregoing reasons, defendant did not meet her burden of establishing a

reasonable probability that she would have received a more favorable result had the DVD

been admitted into evidence. Accordingly, any error potentially associated with ruling

that the DVD was hearsay is harmless.

C.     Effectiveness of Counsel

       Defendant argues that her trial counsel rendered constitutionally ineffective

assistance by failing to request CALCRIM No. 522 (or a comparable instruction) which

would have told the jury of the potential effect of provocation in reducing first degree

murder to second degree. CALCRIM No. 522 is entitled "Provocation: Effect on Degree

of Murder" and provides in full:



                                            27
       "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 murder or manslaughter.]

       "[Provocation does not apply to a prosecution under a theory of felony
       murder.]"

       During a conference on jury instructions, the court asked "What about [CALCRIM

No.] 522" (without more), commented that it did not have a sua sponte obligation to give

the instruction12 and looked to defense counsel for her input. The entirety of counsel's

response was: "I mean, it is interesting. It is a [sic] restating another theory of lack of

deliberation. I would ask that 522 be given. I don't know. I don't think it applies. I don't

think 522 applies." The court agreed, and the discussion turned to the next instruction.

       1.     Law

       The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to competent representation by trial counsel. (Strickland, supra, 466

U.S. at pp. 689, 690; People v. Holt (1997) 15 Cal.4th 619, 703.)

       In reviewing a claim of ineffective assistance of counsel, we must consider both

"whether counsel's representation fell below an objective standard of reasonableness

under prevailing professional norms and whether the defendant suffered prejudice to a



12     This is a pinpoint instruction, to be given on request; the court has no sua sponte
duty to instruct the jury on this issue. (Rogers, supra, 39 Cal.4th at pp. 878-879 [CALJIC
No. 8.73].)

                                              28
reasonable probability, that is, a probability sufficient to undermine confidence in the

outcome." (People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter); see Strickland,

supra, 466 U.S. at p. 694.) The burden of proving both of these issues is on the appellant.

(People v. Pope (1979) 23 Cal.3d 412, 425.)

       Finally, if the appellate record does not disclose why defense counsel acted as she

did, "an appellate claim of ineffective assistance of counsel must be rejected unless

counsel was asked for an explanation and failed to provide one, or there simply could be

no satisfactory explanation." (Carter, supra, 30 Cal.4th at p. 1211.) Under such

circumstances, an aggrieved appellant may present her claim in a petition for writ of

habeas corpus. (Ibid.)

       2.      Analysis

       Here, counsel was not asked why she was not requesting the provocation

instruction. Her statement that she "d[oes]n't think it applies" is ambiguous at best,

especially given her immediately preceding statements — first, that she wanted the

instruction given and, second, that she did not know. Thus, we look to the record to

determine whether there is any satisfactory explanation for the decision; if so, then we

cannot conclude on direct appeal that counsel was ineffective. (Carter, supra, 30 Cal.4th

at p. 1211.)

       Defendant argues that because there was substantial evidence of provocation, there

could be no explanation for failing to request an instruction that might result in a

conviction for second degree, rather than first degree, murder. Defendant fairly

summarizes the evidence supporting provocation, including defendant's request that the

                                             29
court instruct the jury on provocation in the context of the voluntary manslaughter heat of

passion instruction (see CALCRIM No. 570), but that is not the end of the inquiry. As

the People persuasively counter, based on defense counsel's closing argument defendant's

principal defense was that the stabbing was an accident — a reasonable conclusion if the

jury believed defendant's testimony and found reasonable her explanation that she and

Humbert were arguing, that Humbert was holding a knife and approaching her, that she

was backing up with a knife in her hand and that she merely pushed him. Defendant's

counsel emphasized defendant's version of the events in the context of the People's

burden (for purposes of establishing first degree murder) of proving beyond a reasonable

doubt that defendant went to Ortiz-Tello's house with the specific intent to kill Humbert.

       Given this closing argument, we can see a possible tactic in counsel's decision not

to request the pinpoint instruction. Had the jury agreed that defendant's explanation was

reasonable and the stabbing was accidental, counsel could have argued for a complete

acquittal. In contrast, had the jury been instructed and returned its verdict under

CALCRIM No. 522 (or a comparable provocation instruction), the best counsel could

have argued for was second degree murder. Here, the evidence of provocation —

namely, that Humbert provoked the stabbing — was entirely inconsistent with the

evidence supporting an accident, defendant's principal theory of her defense. As such,

we are not persuaded that defendant's trial counsel had "no rational tactical purpose in not




                                             30
requesting an instruction on [provocation]."13 (People v. Wader (1993) 5 Cal.4th 610,

643.) An attorney does not provide ineffective assistance by failing to request a pinpoint

instruction that is inconsistent with her theory of the defense. (Ibid.)

       Accordingly, we reject defendant's claim of ineffective assistance of counsel.

D.     Cumulative Effect

       Defendant argues that the cumulative prejudicial effect of the errors associated

with the issues discussed at parts II.A. through C., ante, deprived defendant of due

process and a fair trial. Because we have found neither error nor prejudice, "there was no

prejudicial error to accumulate." (People v. Scott (2011) 52 Cal.4th 452, 495.)




13      The fact that defense counsel argued for an instruction on voluntary manslaughter
based on the heat of passion (see CALCRIM No. 570) is irrelevant to our analysis. First,
in the event the jury rejected the accident theory but believed there was evidence of
provocation, counsel may have had a tactical reason in asking for manslaughter rather
than second degree murder. In any event, given the evidence of provocation here, the
court was required sua sponte to give the instruction on voluntary manslaughter based on
the heat of passion, regardless what defense counsel requested. (Breverman, supra, 19
Cal.4th at pp. 158, 162.)
                                             31
                                  DISPOSITION

      The judgment is affirmed.



                                                IRION, J.

WE CONCUR:



HALLER, Acting P. J.



MCDONALD, J.




                                      32
