Filed 8/18/15 P. v. Herrera CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B253041
                                                                            (Super. Ct. No. 1396840)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

BRYAN HERRERA,

     Defendant and Appellant.



                   Bryan Herrera appeals his conviction by jury for premeditated and
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deliberate first degree murder (Pen. Code, §§ 187, subd. (a), 189) with personal use of a
deadly weapon, i.e., a knife (§ 12022, subd. (b)(1)). Appellant admitted a prior prison
enhancement (§ 667.5, subd. (b).) and was sentenced to 27 years to life state prison.
Appellant contends that the evidence does not establish a premeditated and deliberate
killing and the trial court erred in not instructing on provocation. We affirm.
                                         Facts and Procedural History
                   On the evening of July 10, 2011, appellant ("Blanco") fatally stabbed
Victor Ramirez ("Little Risky"), a fellow Westside VLP gang member, in an alley.
Earlier that evening, appellant's girlfriend, Yadira F. argued with appellant about his
drinking and association with gang members. Yadira did not want their son growing up

1
    All statutory references are to the Penal Code unless otherwise stated.
around gang members and wanted to leave appellant for Ramirez. In 2010, when
appellant was in state prison, Yadira and Ramirez had a sexual relationship. Appellant
knew about it and was extremely jealous and controlling. He regularly checked Yadira's
phone for text messages and phone calls.
              Two days before Ramirez's murder, appellant and Yadira attended a
birthday party. Yadira saw Ramirez and smiled at him. Appellant confronted Ramirez,
had a fist fight with Ramirez in the alley, and shook hands. That was how Westside VLP
gang members settled their differences. Weapons were used on gang enemies, not fellow
gang members.
              The day of the stabbing, Yadira, appellant, and friends went to Red Rock
near Lake Cachuma. Yadira invited Ramirez, adding "a smiley face" to the text message.
Ramirez did not respond. While at Red Rock, Yadira misplaced her cell phone.
Appellant found the cell phone, checked it for texts and messages, and used it to text
Ramirez that evening.
              At approximately 11:00 p.m., Elmer Mendoza, Miguel Hernandez, and
Tania Jiminez were smoking marijuana near the O Street alley in Lompoc and heard a
commotion. Ramirez and a man in a hoodie were in the alley, swinging their arms at
each other as if body boxing. Ramirez jumped back and fell against a car. The man in
the hoodie walked away. Mendoza ran over to help Ramirez who had blood on his shirt
and was having trouble breathing.
              Ramirez had three stab wounds to the chest and died an hour later. The
coroner determined that Ramirez suffered defensive wounds on the arms, three stab
wounds to the chest, and a stab wound to the left arm pit.
              An investigator reviewed the text messages from Ramirez's phone and the
incoming and outgoing phone calls on Yarida's landline phone and cell phone. The
phone records showed that Ramirez and appellant exchanged text messages before the
stabbing. Ramirez was on probation and wore a GPS anklet that indicated that he left his
house at 10:51 p.m. and walked to the alley. A few minutes after the stabbing, appellant
made two phone calls to Yadira. The police searched Yadira's house and found jeans in a


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laundry hamper. The jeans belonged to appellant and were spattered with blood that
matched Ramirez's DNA profile.
              At trial, appellant claimed that he wielded the knife in self defense but did
not intend to kill Ramirez. Before the stabbing, appellant took Yadira's cell phone, armed
himself with a knife, and left the house. Appellant texted Ramirez, identified himself,
and said they had to meet. Ramirez texted back about the birthday party: "[P]eople are
trying to talk shit to me and tell me you fucked me up, and we both know no one fucked
no one up, and I haven't opened my mouth to no one, and that shit is getting me mad. . . ."
              Appellant pressed for a meeting. Ramirez was subject to an 11:00 o'clock
home curfew and agreed to meet at "Yogi's alley" near Ramirez's house.
              When appellant arrived, Ramirez was mad that people were saying that
appellant gave him a black eye at the birthday party. Appellant testified that Ramirez
"started going crazy," reached towards his waistband, and said "I'll fucking blast you."
Appellant drew his knife and "just started swinging it." Appellant fled, tossed the knife
under a trailer, and called Yadira.
              After appellant walked to Yadira's house, he and Yadira concocted an alibi.
At trial, appellant admitted that he lied to the police. Appellant also admitted that he
never saw a gun or weapon on Ramirez.
                              Premeditation and Deliberation
              Appellant argues that the evidence does not support the finding that the
killing was premeditated and deliberate. As in any sufficiency-of-the-evidence case, we
review the record in the light most favorable to the prosecution and draw all reasonable
inferences in support of the judgment. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We
do not reweigh the evidence or reassess the credibility witnesses. (People v. Albillar
(2010) 51 Cal.4th 47, 60.) A reversal for insufficient evidence is unwarranted unless it
appears that under no hypothesis whatever is there substantial evidence to support the
jury's verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
              Citing People v. Anderson (1968) 70 Cal.2d 15, appellant argues that
premeditation and deliberation must be established by planning, motive, and manner of


                                              3
killing. " 'Anderson does not require that these factors be present in some special
combination or that they be accorded a particular weight, nor is the list exhaustive.
Anderson was simply intended to guide an appellate court's assessment whether the
evidence supports an inference that the killing occurred as the result of preexisting
reflection rather than unconsidered or rash impulse. [Citation.]' Thus, while
premeditation and deliberation must result from ' " careful thought and weighing of
considerations" ' [citation], we continue to apply the principle that '[t]he 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 . . . ." [Citations.]' [Citation.]" (People v. Bolin, supra, 18 Cal.4th at pp. 331-
332.)
              Here the jury could infer motive to kill based on appellant's jealously.
Yadira wanted to leave appellant for Ramirez. Appellant was angry that Ramirez
disrespected him and had lied about his sexual affair with Yadira. It was a strong motive
to kill.
              Premeditation and deliberation were established by the manner of killing.
Appellant met Ramirez in the alley and stabbed him seven times. Three stab wounds
were to the chest, centered around the heart. A targeted, single blow with a weapon
shows a preconceived design to kill. (See e.g., People v. Prince (2007) 40 Cal.4th 1179,
1253 [clustered stab wounds supported inference of deliberate killing]; People v. Lewis
(2009) 46 Cal.4th 1255, 1293 [victim strangled to the point on unconsciousness before
throat cut]; People v. Paton (1967) 255 Cal.App.2d 347, 352 [victim stabbed in heart;
knife wounds were not wild and unaimed].) Ramirez suffered a fourth stab wound to the
left arm pit and three defensive wounds to the arms. There was strong evidence of
premeditation and deliberation. (See e.g., People v. Clark (1967) 252 Cal.App.2d 524,
529.)
              The evidence also shows planning activity. Appellant took Yadira's cell
phone, changed into dark pants and a hoodie, armed himself with the knife, and used the


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cell phone to text Ramirez. Appellant pressed Ramirez for a meeting and met him in the
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alley. The quick attack and escape show planning activity. The jury reasonably could
infer that appellant knew, as a matter of VLP gang custom, that Ramirez would not use a
weapon on a fellow gang member.
              Intent to kill was established by appellant's violent behavior. Appellant
fought Ramirez two days before the stabbing, then texted him and confronted him in the
alley with the knife. It was stipulated that appellant had engaged in other acts of violence
in which he assaulted victims. (Evid. Code, § 1101, subd. (b).) In a 2009 incident,
appellant attacked a gang dropout with an axe.
              A rational trier of fact could find, beyond a reasonable doubt, that the
killing was willful, deliberate, and premeditated. (People v. Lewis, supra, 46 Cal.4th at p.
1293.) Appellant "simply asks this court to reweigh the facts" (People v. Bolin, supra, 18
Cal.4th at p. 333) and makes no showing that the conviction is unsupported by the
evidence or violated his due process right to a fair trial. (Jackson v. Virginia (1979) 443
U.S. 307, 318 [61 L.Ed.2d 560, 573]; People v. Jennings (2010) 50 Cal.4th 616, 649.)
                                        Provocation
              Appellant argues that the trial court erred in not instructing that provocation
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may negate premeditation and reduce murder from first degree to second degree.

2
 Appellant was prosecuted on the theory that the murder was either premeditated and
deliberate or committed by lying in wait. The jury returned a "not true" finding on the
lying in wait special circumstance allegation (§ 190.2, subd. (a)(15)). Appellant's
argument that there is insufficient evidence to support a lying-in-wait, first degree murder
conviction is moot.
3
 Appellant requested a CALCRIM 522 instruction that stated: "Provocation may reduce
a murder from first degree to second degree murder 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.]"
       The trial court also rejected a CALCRIM 570 heat of passion, voluntary
manslaughter instruction because appellant "is asserting a claim of self-defense, not heat

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(CALCRIM 522.) It is a pinpoint instruction and explains or highlights a defense theory.
(People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333.) A trial court is not required
to give a pinpoint instruction that is argumentative or not supported by substantial
evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558)
              Appellant's trial attorney argued that Ramirez "was going to shoot him and
reached for a weapon in his waistband. I don't think it gets more sufficient for
provocation than that." The trial court found that the evidence supported an instruction
on self-defense but not provocation. "It seems to me that what we have is either murder,
first-degree, under premeditation and deliberation, as the People are arguing, with a
special circumstance of lying in wait, if that's what the jury believes happened; or, if they
don't find premeditation and deliberation, it's a second-degree; or, if they believe the self-
defense, imperfect self-defense, the imperfect self-defense is voluntary manslaughter."
The trial court declined to instruct on provocation and instructed on first degree murder
by premeditation and deliberation or by lying in wait (CALCRIM 521), first or second
degree murder with malice aforethought (CALCRIM 520), justifiable homicide, self-
defense (CALCRIM 505), and imperfect self-defense, voluntary manslaughter
(CALCRIM 571).
              Appellant contends that it was error not to instruct on provocation because
Ramirez was mad that people were saying that appellant gave him a black eye at the
birthday party. Ramirez allegedly said, "Does it look like I have a fuckin' black eye? I
don't have no fuckin' black eye. I'll fuckin' blast you." Ramirez backed up and reached
for what appellant thought was a gun. Appellant claimed that he feared for his life and
swung the knife at Ramirez. Appellant's testimony dwelt on self-defense, not heat of
passion due to provocation. The jury was properly instructed on justifiable homicide
based on reasonable self-defense and imperfect self-defense voluntary manslaughter.
(CALCRIM 505, 571; People v. Wickersham (1982) 32 Cal.3d 307, 327-328.)



of passion. [¶] . . . [¶] I don't see evidence rising to the level to give [an instruction]
under heat of passion."

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              Appellant argues that provocation is a subjective test and that the jury
should have been instructed that provocation may reduce first degree murder to second
                4
degree murder. (People v. Padilla (2002) 103 Cal.App.4th 675, 678.) Provocation
means " 'to incite to anger' " to such an extent that it gives rise to a rash, impulsive
decision. (People v. Hernandez, supra, 183 Cal.App.4th at p. 1334.) But that is not the
same as self-defense or imperfect self-defense, i.e., evidence that appellant subjectively
believed that he was in imminent danger of being killed or suffering great bodily injury.
              The trial court correctly ruled that appellant's fear of being shot went to the
issue of self-defense, not provocation. (See People v. Avila (2009) 46 Cal.4th 680, 707
[where substantial evidence of provocation is lacking, trial court does not err in refusing
to instruct on provocation to reduce the degree of murder].) To instruct on provocation
there must be substantial evidence that appellant acted rashly and under the influence of
intense emotion that obscured his judgment. (See e.g., People v. Enraca (2012) 53
Cal.4th 735, 759 [insults or gang-related challenges not sufficient provocation to instruct
on voluntary manslaughter].) The fundamental "inquiry is whether or not the defendant's
reason was, at the time of his act, so disturbed by some passion - not necessarily fear and
never, of course, the passion for revenge - to such an extent as would [cause appellant] to
act rashly or without due deliberation and reflection, and from this passion rather than
from judgment.' [Citation.]" (People v. Berry (1976) 18 Cal.3d 509, 515.)
               When Ramirez allegedly threatened to "blast" appellant, appellant was
three to four feet away. Appellant said that Ramirez was "rowdy" and kept asking "Why
are people talking shit?" Ramirez was mad, held his hands up with palms open, and
stepped back when appellant drew his knife.


4
  "[A] subjective test applies to provocation as a basis to reduce malice murder from the
first to the second degree: it inquires whether the defendant in fact committed the act
because he was provoked. The rationale is that provocation may negate the elements of
premeditation, deliberateness and willfulness that are required for that degree of the
crime. [Citation.]" (People v. Jones (2014) 223 Cal.App.4th 995, 1000; see 1 Witkin &
Epstein, Cal. Criminal Law, Crimes Against the Person (4th ed. 2012) § 125, p. 922.)


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              In People v. Moye (2009) 47 Cal.4th 537 (Moye), our Supreme Court held
that a heat of passion instruction is not required every time "a defendant is attacked and
consequently fears for his life." (Id., at p. 555 [defendant bludgeoned victim to death
with baseball bat and claimed self-defense; instruction on heat of passion voluntary
manslaughter not required].) The same principle applies here. Adequate provocation
must be affirmatively demonstrated. (People v. Lee (1999) 20 Cal.4th 47, 60.) Appellant
stated that "I tried to calm [Ramirez] down and he wasn't listening to me." The evidence
shows that appellant responded to the threat in a rational defensive manner, not in a
passion-inflamed fury. (Moye, supra, 47 Cal.4th at p. 554.) There was no evidence that
appellant was so provoked that "emotion . . . obliterate[d] [his] reason. . . ." (People v.
Johnston (2003) 113 Cal.App.4th 1299, 1311.)
              Assuming, arguendo, that the trial court erred in not instructing on
provocation, the error was harmless. (Moye, supra, 47 Cal.4th at p. 555 [applying People
v. Watson (1956) 46 Cal.2d 818 harmless error standard.) The jury was instructed on
justifiable homicide, self-defense and imperfect self-defense and that it must determine
"whether the defendant's belief in the need to use deadly force was reasonable."
(CALCRIM 571.)
              The factual scenario that appellant posits for a provocation instruction, i.e.,
that he stabbed Ramirez out of fear of being shot, was rejected by the jury. "Once the
jury rejected [appellant's] claims of reasonable and unreasonable self-defense, there was
little if any independent evidence remaining to support [appellant]'s further claim that he
killed in the heat of passion, and no direct testimonial evidence from defendant himself to
support an inference that he subjectively harbored such strong passion, or acted rashly or
impulsively while under its influence for reasons unrelated to his perceived need for self-
defense." (Moye, supra, 47 Cal.4th at p. 557.)
              The jury here was instructed: "A decision to kill made rashly, impulsively,
or without careful consideration is not deliberate and premeditated." (CALCRIM 521.)
It was instructed that "[t]he People have the burden of proving beyond a reasonable doubt
that the killing was first degree murder rather than a lesser crime. If the People have not


                                              8
met this burden, you must find the defendant not guilty of first degree murder and the
murder is second degree murder." (CALCRIM 521.)
              The evidence was sufficient to establish a willful, premeditated and
deliberate murder. By finding appellant guilty of first degree murder, the jury necessarily
resolved against appellant the argument that he acted in the heat of passion due to
provocation. (Moye, supra, 47 Cal.4th at p. 557; see e.g., People v. Wharton (1991) 53
Cal.3d 522, 572 [finding of premeditation and deliberation is "manifestly inconsistent
with having acted under the heat of passion"].) The failure to instruct on provocation was
harmless under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705, 710] [harmless beyond a reasonable doubt]; (Moye, supra, 47 Cal.4th at
p. 556 [harmless error]; People v. Breverman (1998) 19 Cal.4th 142, 177-178.)
Appellant makes no showing that he was denied a fair trial or denied the due process
right to present a complete defense. (People v. Rogers (2006) 39 Cal.4th 826, 871-872.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                                        YEGAN, J.
We concur:


              GILBERT, P.J.



              PERREN, J.




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                                Patricia L. Kelly, Judge

                        Superior Court County of Santa Barbara

                           ______________________________


             Robert L. S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E.
Mercer, Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.




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