Filed 6/18/14 P. v. Gonzalez CA4/2

                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E056554

v.                                                                        (Super.Ct.No. FVA901232)

HORACIO GONZALEZ, JR.,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Arthur Harrison,

Judge. Affirmed.

         Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
       A jury found defendant and appellant Horacio Gonzalez, Jr., guilty of one count

of murder in the first degree (Pen. Code, §187, subd. (a)),1 with the additional allegation

of the use of a deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)).

Defendant was sentenced to 25 years to life for the murder, with a consecutive one-year

term for the weapon’s use.

       Defendant raises five issues on appeal. First, he asserts that there was

insufficient evidence to support a finding that the murder was premeditated. Next, he

argues that counsel rendered deficient representation by failing to request a pinpoint

instruction on provocation and also by failing to make an offer of proof concerning

defendant’s GPS logs of the victim’s travels. The fourth issue charges that the trial

court improperly pressured a deadlocked jury to reach a verdict. Fifth, defendant asserts

that the cumulative prejudicial effect of trial errors requires reversal. Finding none of

these contentions persuasive, we affirm the judgment.

                    FACTUAL AND PROCEDURAL HISTORY

       Defendant and the victim met in 2003; they were married in 2006 and had two

children. In 2006, the marriage began to change, and the couple began to fight.

Defendant would yell, curse, and spit. The couple separated in early 2009. The victim

moved in with her sister, but there were continued incidents. Defendant threw a rock at

the victim’s car and threatened to kill himself, tying a belt around his neck. He was

held for two days for psychiatric observation as a result. Some altercations were

       1 All further statutory references are to the Penal Code unless otherwise
indicated.


                                             2
physical, with the victim receiving scratches, bruises, and injury to her neck. The

victim obtained a restraining order against defendant, barring him from contact with her,

which he repeatedly violated. Incidents would occur when defendant and the victim

crossed paths as part of child visitation.

       Defendant was possessive about the victim. After their separation defendant

became morose and lost weight. He was fired from his job in the mortgage business.

He asked a friend to wire a GPS locator to the victim’s car, but the friend refused.

Defendant attached the GPS, and used it and a private investigator to monitor the

victim’s movements. Defendant received tracking information every three minutes.

Defendant kept the information from the GPS locator on a laptop computer.

       Defendant believed the victim was becoming romantically involved with a friend

of hers, Ebrat Sakhaeifar; on July 21 defendant vandalized Sakhaeifar’s car when he

saw Sakhaeifar and the victim at a restaurant with a group of friends. The next day,

defendant contacted Sakhaeifar and demanded to know if Sakhaeifar was having sex

with the victim. Defendant, “could care less what [the victim] was doing,” but he was

worried that Sakhaeifar would raise his children. Sakhaeifar had once been convicted of

loitering with intent to commit prostitution.

       Defendant’s former coworker, Diana Lozano, had given defendant a machete

after defendant told her his property had been tagged with graffiti. On July 22, 2009,

the day after defendant vandalized Sakhaeifar’s car, defendant told his manager that he

felt unwell and left work early. He had already talked on the phone three times with

Lozano. Defendant called Sakhaeifar from his car and had an angry conversation with


                                                3
him. Defendant then called and texted the victim; he was seeking more visitation time

with his kids. He “was done” after that phone call and “[i]t wasn’t worth living . . . .”

Defendant went to the beauty salon where the victim worked, and he brought with him a

gas can, a laptop computer, and the machete. Defendant went to the salon “to discuss

possible increased visitation” with the victim. He brought the laptop to show her the

tracking information he had, which he intended to threaten to show to the court if the

victim did not give him increased visitation. He brought the machete, which he had

“[i]n [his] car from the night before” when he vandalized Sakhaeifar’s car. Defendant

intended to use the machete for “[i]ntimidation.” In the laptop bag was a 24-ounce

bottle of bleach, which he brought to use to kill himself.2

       When defendant arrived at the salon, he entered, yelling “Where’s [the victim]?”

or “Where is she at?” His entrance created a stir; he was described as looking “very”

angry, “very determine[d], demented,” “kind of crazy looking,” with “an evilness in his

eyes,” “evil-looking,” and “[d]emonic” but not “crazy.” People in the salon screamed

and scattered, and some ran to warn the victim, who ran out the back door. Defendant

raised the machete as he ran towards the back. Defendant stumbled or was tripped

when he reached the rear of the shop, and he dropped the gas can and his bag. He

pursued the victim into the parking lot behind the salon. Defendant caught up to the

victim and they both fell. The victim got up and started to run towards the back door of

the salon, but defendant got between her and the door and “pushed her” away from the


       2   We found no testimony regarding the gas can, its contents, or its purpose.


                                             4
salon. He then struck her with the machete, with the most serious blow inflicting a deep

cut to the side of her head and neck. Defendant threw the machete on the ground by the

victim and left the scene. Despite attempts to help her, the victim bled to death in the

parking lot.

       Defendant walked away to go drink bleach. He bought a 24-ounce bottle of

bleach, which was the same size as the one he left at the salon in his laptop bag. He

walked approximately one mile from the salon. Lozano called defendant’s cell phone

during that time; defendant was curt and hung up on her. When Lozano called back he

was crying, throwing up, and saying “‘she’s gone.’” Approximately 20 minutes after

his attack on the victim, defendant texted Lozano to come pick him up. He would not

tell her exactly where he was, but she pieced it together from information from him and

his mother. When located, he was sitting against a tree, drinking bleach. Lozano tried

to get the bottle away from him, but he would not give it up and continued to drink from

it. Lozano called 911. Lozano’s friend flagged down a police car. The officer saw that

defendant matched the description of the suspect being sought for the attack at the salon

and arrested him. He noted blood on defendant’s lips and bleach stains on his pants.

       The autopsy performed on the victim revealed the fatal blow had fractured the

victim’s skull and severed her left carotid artery and both the left internal and external

jugular veins. There were three superficial linear injuries that could have been inflicted

by the blunt side of the machete. Part of the victim’s thumb was severed; this was likely

a defensive wound. Apart from the head and thumb wounds, all the other injuries were

superficial.


                                             5
       The defense elicited testimony from two medical experts. Dr. Vasilica Valcu, a

psychiatrist, testified he initially examined defendant on September 29, 2009, two

months after the killing, and found him to be suffering from major depressive disorder.

Defendant initially told Dr. Valcu that he was having auditory hallucinations, but these

went away. Dr. Valcu had no opinion of defendant’s mental state at the time of the

murder. Forensic psychologist Dr. Michael Kania testified that he ran the MMPI

(Minnesota Multiphasic Personality Inventory) test on defendant and found defendant

suffered from paranoid distortions and severe delusions, with depression that dated back

to January 2009. Dr. Kania characterized the results of the MMPI as having “borderline

validity” because of some “mild” exaggeration and possible thought disorders, but he

saw no evidence of malingering. Dr. Kania did not meet with defendant until

November 2011, but did not believe that his diagnosis was less reliable because of the

passage of time. Dr. Kania’s diagnosis of defendant was depression with suggestions of

psychotic thinking.

       Defendant testified at trial. Before he testified, the trial judge found it necessary

to make a record of defendant’s behavior during Sakhaeifar’s testimony. Outside the

presence of the jury, the judge noted there was the start of an “outburst” by defendant,

where he became angry and started to rise from his seat. The bailiff put his hand on

defendant to calm him. The court also noted defendant was responding vocally and by

gesture to Sakhaeifar’s testimony and, “You could tell he was angry.”

       Defendant testified his marriage degenerated when the victim became “neglectful

as a wife to [him],” despite the fact that he would give her “permission” to go out with


                                             6
friends as a sort of reward for giving him two beautiful children and being a good wife.

Defendant felt he was not “controlling.” He was disturbed when the victim would stay

out until 9 p.m. on weeknights after work, once coming home at 11:45. He denied

being jealous about the victim or abusive towards her. Although the night before the

murder he vandalized Sakhaeifar’s vehicle, he testified “I don’t see why” he would be

jealous of Sakhaeifar. After January of 2009 he “gave up” on the victim and “just

moved on with [his] life”; his concern was only for his children. Defendant tracked the

victim’s movements because he was concerned she was not spending enough time with

the children.

       The tracking log defendant kept on the victim was not permitted to go before the

jury. It contained information about where the victim’s car went and how long it stayed

in various places. Defendant made entries in the log regarding information he had

received from the detective he had hired to follow the victim, and information he

obtained about the locations she visited. Defendant would note when the victim visited

the homes of men and their ages, when she made deposits to her bank account, his

suspicions about drug use at certain locations, and when she stopped at locations near

nightclubs or strip clubs. One entry contained the notation, “CHUCKIE CHEESE

PIZZA GOOD QUALITY TIME WITH MOTHER.” The notations in the proffered

tracking records suggest that the victim may have been working as a prostitute and

frequenting strip bars. The log became garbled and indecipherable. Defendant testified

he was “scared” about the places the victim went.




                                            7
       Defendant lost custody and visitation with the children partly because of the

incidents that occurred when he would meet the victim for visits. Nonetheless, he

maintained that his children were his highest priority. He testified he accepted the

machete after his property was tagged—not for his own protection, but because he was

concerned about being able to protect his home if he was awarded custody of his

children. Defendant felt “[the victim] could date who she wanted,” but that she forgot

about their children.

       Defendant went to the salon on the day of the attack to show the victim the

tracking logs on his computer, but he also brought a machete, a gas can, and a bottle of

bleach. He denied raising the machete that he carried. He had the laptop bag and gas

can with him in the parking lot. Defendant purchased a second bottle of bleach to drink

after the murder. Defendant testified that when he struck the victim in the head with the

machete, he did not intend to kill her, but admitted telling a psychologist that when he

was pursuing the victim he felt “like a lion chasing a zebra.”

       Defendant sparred with the prosecutor while on the stand. He told her she did

not know the facts. He deflected her questions with non-answers such as “That’s your

opinion, yes,” “I can give you that,” “Those are your words,” and “Is that a statement or

question, ma’am?” He responded to defense counsel’s objection to a question about

whether a person striking someone in the head with a machete would be intending to

kill with, “I have an answer. That’s fine,” “I have an answer. I’m not worried.” He

stated that a person “in their right mind” would “absolutely” intend that, but he had

denied that he intended to kill the victim.


                                              8
       During the trial, defense counsel sought a jury instruction on voluntary

manslaughter. The defense argued the GPS logs, which tracked the victim’s car, were

evidence of provocation by her misbehavior sufficient to affect the defendant’s

reasoning and judgment. In addition, the defense argued that the testimony of the two

expert witnesses would support a defense of diminished actuality. The trial court did

not admit the tracking logs into evidence because they were purely conjectural; they

provided no information about what was done at any given location or even who was

using the car. The manslaughter instruction was not given because the trial judge did

not believe there was “anything that the decedent did that could reasonably be construed

to cause the provocation for the heat of passion that might be a defense in this case.”

Defense counsel registered a continuing objection to the denial of the instruction. The

court backtracked, noting, “[b]ased on what your defendant might testify to, I think you

might be able to try that, put it that way.” After the completion of testimony, the trial

judge reconsidered and reaffirmed his ruling.

       The jury received the case on May 17, 2012, and deliberated for two hours until

the proceedings were continued to May 21. On May 22 the jury sent a note asking “[t]o

see the judge. We can’t make a decision.” Before the court responded, the jury then

asked for Dr. Kania’s testimony to be read back. The trial judge delivered, orally and in

writing, a further instruction. The jury received a read-back of Dr. Kania’s testimony,

and reached a unanimous verdict the next morning, after less than two hours of further

deliberation.




                                             9
                                       DISCUSSION

       A.     SUFFICIENCY OF EVIDENCE OF PREMEDITATION

       Defendant asserts that his conviction is invalid because there is insufficient

evidence that the murder was premeditated. In determining whether a criminal

conviction is supported by sufficient evidence, a reviewing court must “determine

whether the record evidence could reasonably support a finding of guilt beyond a

reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318, fn. omitted.) In

Jackson, the Supreme Court explained, “the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

[Citation.] This familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Once a defendant has been

found guilty of the crime charged, the fact finder’s role as weigher of the evidence is

preserved through a legal conclusion that upon judicial review all of the evidence is to

be considered in the light most favorable to the prosecution.” (Id. at pp. 319, fn.

omitted; see also People v. Johnson (1980) 26 Cal.3d 557, 578.) The judgment

challenged on appeal is presumed correct, and it is defendant’s burden to affirmatively

demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) We

cannot substitute our judgment for that of the jury, even if we believe the circumstances

might also support a contrary finding. (People v. Gonzales (2011) 52 Cal.4th 254, 295,

citing People v. Ceja (1993) 4 Cal.4th 1134, 1139.)


                                             10
       Substantial evidence is evidence that “maintains its credibility and inspires

confidence that the ultimate fact it addresses has been justly determined.” (People v.

Conner (1983) 34 Cal.3d 141, 149.) To be substantial, evidence must be credible and of

solid value. (People v. Guardado (1995) 40 Cal.App.4th 757, 760-761.) The “whole

record” to be reviewed includes “the entire picture of the defendant put before the jury”

and is not limited “to isolated bits of evidence selected by [one party].” (People v.

Johnson, supra, 26 Cal.3d at p. 577.) Given this court’s limited role on appeal,

defendant bears a heavy burden in claiming there was insufficient evidence to sustain

his conviction for first degree murder.

       Deliberation “‘means careful consideration and examination of the reasons for

and against a choice or measure.’ [Citation.]” (People v. Bender (1945) 27 Cal.2d 164,

183.) Premeditation “means ‘To think on, and revolve in the mind, beforehand; to

contrive and design previously.’ [Citation.]” (Ibid.) Relying on the Thomas court’s

emphasis on reflection, the court concluded that “‘[t]he true test is not the duration of

time as much as it is the extent of the reflection.’” (Bender, at p. 185, quoting People v.

Thomas (1945) 25 Cal.2d 880, 900.) Thus, “‘[a]n intentional killing is premeditated and

deliberate if it occurred as the result of preexisting thought and reflection rather than

unconsidered or rash impulse.’ [Citation.]” (People v. Pearson (2013) 56 Cal.4th 393,

443.) In response, our state Supreme Court reaffirmed the significance of “preexisting

reflection, of any duration” to distinguish first degree murder (based on premeditation

and deliberation) from second degree murder. (People v. Solomon (2010) 49 Cal.4th

792, 813; accord, People v. Houston (2012) 54 Cal.4th 1186, 1217.)


                                             11
       The court in People v. Anderson (1968) 70 Cal.2d 15 (Anderson), provided

guidelines “for the kind of evidence which is sufficient to sustain a finding of

premeditation and deliberation.” (Id. at p. 26.) Such evidence “falls into three basic

categories: (1) facts about how and what defendant did prior to the actual killing which

show that the defendant was engaged in activity directed toward, and explicable as

intended to result in, the killing—what may be characterized as ‘planning’ activity;

(2) facts about the defendant’s prior relationship and/or conduct with the victim from

which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of

motive, together with facts of type (1) or (3), would in turn support an inference that the

killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of

considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’

[citation]; (3) facts about the nature of the killing from which the jury could infer that

the manner of killing was so particular and exacting that the defendant must have

intentionally killed according to a ‘preconceived design’ to take his victim’s life in a

particular way for a ‘reason’ which the jury can reasonably infer from facts of type

(1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first

degree murder typically when there is evidence of all three types and otherwise requires

at least extremely strong evidence of (1) or evidence of (2) in conjunction with either

(1) or (3).” (Id. at pp. 26-27.) The categories are neither complete nor exclusive.

(People v. Koontz (2002) 27 Cal4th 1041, 1081.) “Since Anderson, we have emphasized

that its guidelines are descriptive and neither normative nor exhaustive, and that

reviewing courts need not accord them any particular weight. [Citations.]” (People v.


                                             12
Halvorsen (2007) 42 Cal.4th 379, 419-420.) “However, ‘[w]hen the record discloses

evidence in all three categories, the verdict generally will be sustained.’ [Citation.]”

(People v. Stitely (2005) 35 Cal.4th 514, 543.)

       Illustrating evidence of planning, Anderson discussed the case of People v.

Hillery (1965) 62 Cal.2d 692, in which “the defendant’s surreptitious conduct,

subjection of his victim to his complete control, and carrying off of his victim to a place

where others were unlikely to intrude, can be described as ‘planning’ activity directly

related to the killing.” (Anderson, supra, 70 Cal.2d at p. 27.) In another case, planning

evidence was found when the defendant left the victims to retrieve a rifle from his car

and, after killing one victim, manually loaded a second shot into the rifle’s chamber to

kill the second victim. (People v. Thomas (1992) 2 Cal.4th 489, 517.) Similar evidence

was present in People v. Young (2005) 34 Cal.4th 1149, where the defendant, after

being denied entry to a house, crashed through a living room window armed with a gun

before killing a resident inside the house. From such evidence, the jury could infer that

the “defendant ‘considered the possibility of murder in advance’ . . . .” (Id. at p. 1183.)

       Here, the circumstances of the present incident are clearly susceptible to a

reasonable inference that defendant’s conduct was the result of preexisting reflection as

opposed to a rash unconsidered impulse. Substantial evidence of all three Anderson

factors—planning, motive, and a method of killing tending to show a preconceived

plan—can be drawn from defendant’s actions.

       Defendant’s challenge to his conviction rests on comparisons with other first

degree murders. Unlike the cited cases, his crime was not “surreptitious or calculated.”


                                            13
Further, he notes that his crime took place in daylight before a group of people who

could easily identify him, and he inflicted a number of superficial wounds before the

killing blow. Such a killing must have been an impulsive act by a man debilitated by

depression, he asserts, because there were other ways to kill her that were more covert

or efficient. Since this proves his crime was not planned, he argues that premeditation

can only be found here under Anderson if there is evidence of motive and evidence that

the manner of killing showed a preconceived design. The fact that defendant argued

with and was physically abusive of the victim does not establish motive, and, in his

view, the manner of killing is “as consistent with a sudden, random explosion of

violence as with calculated murder.” Unlike an execution-style shooting, the most

calculated type of murder, the frenzied machete-slaying here is “entirely inconsistent”

with premeditation, he says, and his attempt to kill himself afterwards shows that he was

acting rashly and impulsively. Defendant compiles his argument by reference to

isolated parts of the record; consideration of the full record refutes his assertions.

       There is no requirement in the law that a defendant’s planning must intend the

most optimal crime. Premeditation is shown when a defendant arrives at the scene of

the crime with a plan for a murder, regardless of whether it comprises the best or most

complete scenario. Activity “directed toward” and “explicable as intended to result in[]

the killing” is all that Anderson requires. (Anderson, supra, 70 Cal.2d at pp. 26-27.)

The record shows such activity.

       Defendant saw the victim with another man and the next day, he decided he did

not want to live any more. He walked into the salon where the victim worked carrying


                                             14
his makeshift murder/suicide kit. He brought a laptop computer, a machete, a gas can,

and a 24-ounce bottle of bleach. His testimony was that he brought the laptop to show

the victim that he had evidence she was an unfit mother, and have a conversation

regarding visitation with their children. The jury may have believed this, although it is

unlikely that yet another violation of the restraining order against him would lead a

judge to rule in his favor. He testified that he only brought the machete to get her to

listen to him, for “Intimidation.” The jury might have believed this as well, but to do so

they would have had to discount the testimony heard from other witnesses that he raised

the machete in his hand as he stormed down the aisle of the salon. The jury could

believe that the machete just happened to be at hand, but to do so they would have to

disregard defendant’s testimony that the weapon, which he said he kept to defend his

property from taggers, was in his car “from the night before,” when he saw Sakhaeifar

with the victim, and vandalized Sakhaeifar’s car. The jury could have accepted that the

machete was for protection or intimidation, and not for lethal violence. However, it

cannot be said that no rational fact finder would reach the opposite conclusions, given

the difficulties with defendant’s testimony.

       Defendant did not explain why he brought the gas can or the bleach into the

salon. He did state that, after he attacked the victim, he left “to go drink [his] bleach.”

He testified he was already suicidal when he arrived at the salon and life “wasn’t worth

living.” He bought the bleach beforehand and had it in his laptop bag. Clearly,

defendant had a plan to kill himself after the confrontation at the salon, or at least to

make it look like he was trying to do so.


                                               15
       It is possible a jury could believe that defendant expected his scheme, to obtain

greater visitation rights, would fail, and he would then kill himself. However, it is not

unreasonable for the jury to believe defendant instead planned to kill himself after

committing a murder in broad daylight, in front of witnesses who knew him, and that

this explained why his plot had no getaway plan. Further, such an end is entirely

consistent with defendant’s testimony about his suicidal ideation.

       Defendant’s plan can reasonably be seen as being focused on murder, and not on

visitation. Witnesses testified defendant entered the salon in a rage, using terms such as

very angry, demonic, evil, demented, and crazy-looking to describe his aspect.

Defendant denied he was running or out of control as he entered the shop, but witnesses

testified people screamed and scattered as he ran in. Defendant’s initial anger, before

any confrontation of the victim, is significant.

       Defendant insisted he was not motivated by jealousy. He testified he had

“moved on” after January of 2009 and “could care less what she was doing” with her

personal life. He said “she could date who she wanted” and he was not jealous of other

men. Defendant testified he tracked her movements by private detective and GPS

tracking only because he was afraid she was neglecting her children. Although the

tracking logs were not presented to the jury, they included the names and ages of males

residing at the addresses where her car stopped. Clearly, it was possible the victim’s

travels were innocent; the jury could reasonably choose to view the evidence that

defendant was tracking the victim’s movements as proof not of his fatherly concern but

of his obsessive jealousy. The fact that the murder occurred the day after defendant


                                             16
vandalized Sakhaeifar’s car, after defendant saw Sakhaeifar with the victim—defendant

watched in his car with his machete—may have pressed a contrary view upon the jury.

Further, the fact defendant stormed into the salon shortly after a conversation with

Sakhaeifar, which defendant admitted made him “very angry”—one that Sakhaeifar

reported began with defendant’s question “Are you fucking my wife?”—makes it a

reasonable conclusion by the jury that defendant’s predominate issue was not child

visitation.

       As defendant chased after the victim, defendant stumbled at the rear of the shop.

He insisted he did not drop his laptop bag and bleach bottle, but witnesses testified

otherwise and the items were recovered in the salon by the police. Defendant had to

purchase a second bottle of bleach after the murder, which would not have been

necessary if he had not dropped the laptop bag in the salon. After he fell, defendant

retained only the machete. If defendant’s plan was to increase his visitation rights

through blackmail and intimidation, he needed to have the laptop to show his

“evidence.” If his plan was to kill and then kill himself, he needed only the machete

and the bleach. Defendant had and used the machete. Defendant and the victim fell

together once as she tried to escape. He did not attempt to discuss visitation with her or

reconsider his purpose after the fall. He testified he felt “like a lion chasing a zebra” as

he closed in on the victim. Defendant herded her away from the salon’s back door; he

took the time to strike her three times with the blunt side of the machete, call her

“bitch,” and make a comment about not being allowed to see his kids, before he drove

the machete blade through the side of her skull into her brain. The evidence supports


                                             17
the view that defendant toyed with and taunted the victim before killing her, which is

not at all inconsistent with premeditation.

       Defendant’s testimony was not inherently more believable than other evidence

before the jury. His testimony that he retained the laptop bag after his fall in the salon

was further undercut by his own testimony that after the killing he purchased another

bottle of bleach to drink. The police recovered a bottle of bleach in the laptop bag at the

scene of the murder; defendant felt the need to conform to his plan down to the last

detail by drinking bleach, despite the fact that he had at hand a proved lethal weapon.

Defendant’s suicide attempt was planned, and not a rash or impulsive act. Further, just

as the jury could find defendant planned his suicide attempt, it could reasonably find

that he planned its failure. Defendant testified he came to the salon intending to die, but

he ingested poison rather than immediately end his life by using the machete. He also

walked over a mile away to find a place to sit. Although he testified that he intended to

die, he answered calls on his cell phone, and, some 20 minutes after the murder, texted

Lozano to come pick him up. Defendant also called his mother and told her where he

was. When Lozano found him, he was still drinking from the same 24-ounce bottle,

nearly an hour after the murder. Defendant denied that he drank the bleach to

manipulate people to feel sorry for him, but that conclusion is no less supported by his

claim that he intended to take his own life. Defendant’s actions can reasonably be seen

as preconceived and planned, arising from a jealous and controlling motive.

       We must not substitute our views for those of the jury if there is substantial

evidence to support its verdict. There is substantial evidence to support each Anderson


                                              18
factor. Defendant’s activity before arriving at the salon displays extensive planning

behavior. He assembled a set of items, each of which had a purpose in his plan,

including a lethal weapon. He was not at the salon by chance, but left work early to

drive to the salon while calling the victim and her supposed paramour on his cell phone.

Once at the salon, he chased her out of the shop with the only item indispensible to his

plan: the machete. His motive, as well, is clear. Rather than his unlikely tale of a

clumsy attempt to win increased visitation with his children, the jury chose to accept the

prosecution’s description of a jealous estranged husband who, after seeing his wife with

another man, decided to end her life.

       Lastly, the manner of the killing meets the third Anderson standard and supports

the jury’s finding of premeditation. Defendant ran through the salon to chase the victim

into the parking lot; he thought of himself as a hunting lion. In addition to that

reflection, defendant had a further opportunity to abandon his killing purpose when they

both fell, but he resumed his chase. The victim got to her feet and tried to reach the

safety of the salon, but defendant blocked her and pushed her away from the back door.

Eventually, the victim “just stood there. She stopped fighting. And she just was trying

to block him with her hand[s] like an X.” “The one wound that would be classified as

defensive is the injury to the thumb. It’s likely she was trying to cover her head and the

thumb was severed when the injury to the head took place. . . . [¶] . . . [¶] [D]efensive

type are injuries on the hands and forearms where you’re essentially trying to cover and

protect yourself.” In People v. Lunafelix (1985) 168 Cal.App.3d 97, 102, the victim’s

effort to retreat, posing no threat, evidenced premeditation and deliberation by the killer.


                                            19
Defendant said his purpose was to show the victim the evidence he had against her on

the laptop, but he had dropped the laptop in the salon. Without the laptop to prove his

knowledge of her unworthiness as a wife and mother, he settled for slapping her with

the blunt edge of the machete, insulting her, and telling her that she was to blame for his

acts. Then defendant killed the victim with a single blow to the head, dropped the

machete by her body, and walked away. Finding strong evidence of planning and

supporting evidence for all three of the Anderson guidelines, we find substantial

evidence in support of the jury’s verdict.

       B.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant asserts his counsel rendered constitutionally inadequate assistance by

failing to request a pinpoint instruction that defendant’s subjective mental state was

such that he did not deliberate and premeditate the murder. As a companion issue, he

charges that his counsel was also derelict in failing to make an offer of proof that the

tracking records should be admitted as demonstrating his subjective state of mind.

Finding no possible prejudice from the failure to attempt these acts, we affirm the

judgment.

       To establish constitutionally inadequate performance by counsel, defendant must

show, “(1) counsel’s performance was deficient in that it fell below an objective

standard of reasonableness under prevailing professional norms, and (2) counsel’s

deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’

that, but for counsel’s failings, defendant would have obtained a more favorable result.

[Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in


                                             20
the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing,

among other cases, Strickland v. Washington (1984) 466 U.S. 668; accord, People v.

Boyette (2002) 29 Cal.4th 381, 430.) Hence, any such claim has two necessary parts:

deficient performance and prejudice to the defense. (Strickland, at pp. 687-688, 693-

694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10

Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to

establish either component, his claim fails.

              1.     PINPOINT INSTRUCTION

       The jury received three instructions regarding murder. They were given the

standard definition of murder in CALCRIM No. 520. CALCRIM No. 521 correctly

instructed the jury on the difference between first and second degree murder. The

instruction states that, in order to determine the defendant premeditated and deliberated,

the jury must find that the defendant “carefully weighed the considerations for and

against [his] choice and, knowing the consequences, decided to kill.” It further explains

that “[a] decision to kill made rashly, impulsively, or without careful consideration is

not deliberate and premeditated.”

       The jury also received instruction CALCRIM No. 522, “Provocation: Effect on

Degree of Murder.” The instruction reads: “Provocation may reduce a murder from

first degree to second degree[.] 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.”


                                               21
       Defendant argues that his counsel should have requested a pinpoint instruction

that “amplified” CALCRIM No. 522 regarding his subjective mental state.

       CALCRIM No. 522 is itself a pinpoint instruction. (CALCRIM, Bench Notes, p.

250.) It modifies the standard definition of murder in CALCRIM No. 520 and of

degrees of murder set out in CALCRIM No. 521. The instruction has been upheld as

sufficiently distinguishing between first degree murder and second degree murder on

the basis of provocation. (People v. Hernandez (2010) 183 Cal.App.6th 1327, 1334.)

       Subjective provocation sufficient to reduce first degree murder to second degree

murder requires that defendant’s mental state was such that he did not deliberate and

premeditate the killing. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296;

People v. Padilla (2002) 103 Cal.App.4th 675, 677-678.) A defendant who does not

deliberate and premeditate due to provocation is guilty of second degree murder even if

the provocation would not have prevented a reasonable person from deliberation or

premeditation. (Fitzpatrick, at pp. 1294-1296.) Such a subjective mental state exists

when a defendant “formed the intent to kill as a direct response to . . . provocation and

. . . acted immediately.” (People v. Wickersham (1982) 32 Cal.3d 307, 329,

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

       The subjective provocation upon which defendant relies arose “from depression

so severe that it bordered on paranoid delusions affecting his decision-making

capabilities.” He argues in briefing that the victim’s activities scared him for the

welfare of his children, so he sought to “convince her through intimidation to allow him

to see his children or run the risk he would use the information in family law court.”


                                            22
Because he testified that he never intended to kill, he asserts that he acted without

“making any calculated judgment or weighing considerations.” Further, Dr. Kania, his

psychologist, testified that defendant suffered from chronic depression with

schizophrenic reactions and paranoid features. However, the diagnosis came from the

doctor’s evaluation of him in 2011, which he could “date back” to 2009 based upon

records of other doctors that he reviewed. Dr. Kania’s diagnosis was depression with

“strong suggestions as to the possibility of psychotic thinking, even at that time and

indication of similar thinking as he told me about what he recalled happening in July of

2009.” Defendant acknowledges that there was no actual provocation by the victim, but

states that it was defendant’s “delusional belief based upon the GPS log[] evidence that

[the victim] was not taking proper care of their children and he feared for their welfare,

so much so that he went to the hair salon intend[ing] to confront her and use the log[]

evidence in an attempt to see his children.”

       The fact that counsel did not request a further pinpoint instruction on subjective

provocation did not render his representation deficient. “‘[I]n appropriate

circumstances’ a trial court may be required to give a requested jury instruction that

pinpoints a defense theory of the case . . . [b]ut a trial court need not give a pinpoint

instruction if it is argumentative [citation], merely duplicates other instructions

[citation], or is not supported by substantial evidence [citation].” (People v. Bolden

(2002) 29 Cal.4th 515, 558.) A pinpoint instruction on subjective provocation is

required to be given only if it is requested and if there is evidence to support the theory.




                                               23
(People v. Rogers (2006) 39 Cal.4th 826, 878) Here, the instruction lacked sufficient

supporting evidence.

       Defendant asserts he was motivated by fear for his children’s welfare. For the

purpose of this claim, he presumably admits this fear was objectively unreasonable and

that his depression clouded his thinking so that he believed his fears were warranted.

Even granting defendant’s claim to have suffered from delusions at the time of the

killing—which rests on the extremely tenuous footing of psychological testimony based

upon a MMPI test administered 30 months after the killing, self-reporting of past

symptoms, and extrapolation from more contemporaneous medical reports—a necessary

connection is missing.

       Nothing about the supposed subjective provocation would lead defendant to

murder. At most, defendant has explained why he might have thought he must violate

his restraining order to attempt to blackmail the victim to let him see their children more

often. There is no provocation to murder. Defendant has not argued that he killed his

children’s mother in order to protect them from her bad parenting. The victim did

nothing to provoke defendant when he arrived at the salon. All of the alleged

provocations occurred beforehand, as did defendant’s planning and deliberation.

Defendant has denied jealousy or possessiveness as motivations for the murder.

Although defendant states he was provoked to confront the victim over her neglect of

their children, his action, upon sight of the victim, was to murder her. Defendant

unreasonably believed the victim was a bad mother and therefore wanted greater




                                            24
custody of his children. Murder was not a consequent response. The evidence does not

support giving a further pinpoint instruction.

       Furthermore, the pinpoint instruction would have duplicated the instructions that

were given. The trial court instructed the jury that “[a] decision to kill made rashly,

impulsively, or without careful consideration is not deliberate and premeditated. On the

other hand, a cold, calculated decision to kill can be reached quickly.” This instruction

adequately covered the defense theory, and a duplicative pinpoint instruction need not

be given. Most significantly, there was compelling evidence of premeditation and

deliberation. Overwhelming evidence shows that defendant did not form the intent to

kill “as a direct response to” provocation and did not kill “immediately.” (People v.

Wickersham, supra, 32 Cal.3d at p. 329.) We are convinced beyond a reasonable doubt

that an instruction more explicitly applying a subjective standard would not have

influenced the jury’s verdict.

              2.     ADMISSION OF GPS TRACKING RECORDS

       Defendant asserts his counsel rendered him inadequate assistance because

counsel failed to make an offer of proof that the GPS tracking records were relevant

evidence to defendant’s state of mind. Because the records were not relevant to any

issue at trial, we find that the offer of proof would have been a futile gesture and

defendant therefore suffered no possible prejudice.

       A trial court has broad discretion in determining the relevance of evidence but

lacks discretion to admit irrelevant evidence. (People v. Riggs (2008) 44 Cal.4th 248,

289.) Here, the trial court received oral argument on the admission of the tracking logs,


                                            25
took a break in the proceedings to review them, found them inadmissible and stated its

reasons: all on the record. Defendant told the court the tracking logs provided

information as to when the tracked vehicle arrived at specific addresses, but the court

noted that many entries consisted of specific addresses and an “mph” entry, indicating

the car was moving. The reliability of the logs was further undercut by the fact that they

do not record who was driving the vehicle, so their relevance to the victim’s activities is

suspect. Defendant’s briefing does not respond to the trial court’s concerns. Instead,

defendant maintains the logs would have provided evidence of defendant’s delusional

state of mind—despite their flaws.

       This court has reviewed the proposed evidence and finds it was not an abuse of

discretion to exclude them. Defendant’s obsessiveness was already before the jurors:

they knew he hired a private detective to follow the victim and that he surreptitiously

attached a GPS tracker to her car, which reported her location to him every three

minutes. The only additional information the records themselves would provide come

from comments inserted by defendant into the tracking records. The narratives added to

some entries disparaged the victim and accused her of promiscuity, drug use, and

prostitution. The records are duplicative in places. As the facts of defendant’s

monitoring of the victim were already before the jury, the only additional value of the

logs would be allowing defendant to voice his accusations against the victim. That does

not justify their admission, and they were properly excluded.

       Despite the adverse ruling, no offer of proof was required of counsel. The trial

judge excluded the logs and explained his reasoning on the record. Defendant asserts


                                            26
that the failure to make a formal offer of proof was deficient performance. This

overestimates the significance of an offer of proof. “An offer of proof should give the

trial court an opportunity to change or clarify its ruling and in the event of appeal would

provide the reviewing court with the means of determining error and assessing

prejudice. [Citation.]” (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) The trial

court considered the arguments before it and even took a break in the proceedings for

further review and consideration following the initial argument. In addition, defense

counsel then objected to the ruling and registered a continuing objection. There was no

need to further highlight counsel’s disagreement with the ruling. The trial court was

well informed of counsel’s arguments and no change or clarification would be

forthcoming.

       The record would not have been improved by an offer of proof. “The offer of

proof exists for the benefit of the appellate court. The offer of proof serves to inform

the appellate court of the nature of the evidence that the trial court refused to receive in

evidence . . . . The function of an offer of proof is to lay an adequate record for

appellate review . . . .” (1 Wigmore on Evidence, § 20a (Tillers Rev.1983), p. 858.)

The proposed evidence was marked for retention and is before us. The trial court set

out its reasoning in the trial transcript, and we have reviewed and accepted it. In

everything but name, defense counsel made an offer of proof and he has preserved the

issue for us in full. We see no possible prejudice from counsel’s failure to make an

offer of proof, and find no deficient performance.




                                             27
       C.     JURY DEADLOCK

       The jury received the case on May 17, 2012. On May 22 the jury sent a note

indicating they could not reach a decision. The trial judge delivered a further

instruction derived from People v. Moore (2002) 96 Cal.app.4th 1105 (Moore).3

Defendant argues that the Moore instruction used in response to the jury’s note coerced

the verdict. Finding no impropriety in the decision to give the instruction and no defect

in the instruction, we affirm.

       Section 1140 provides, in pertinent part, that “the jury cannot be discharged after

the cause is submitted to them until they have agreed upon their verdict . . . unless by

consent of both parties [or] at the expiration of such time as the court may deem proper,

it satisfactorily appears that there is no reasonable probability that the jury can agree.”

“The determination, pursuant to section 1140, whether there is a ‘“reasonable

probability”’ of agreement, rests within the sound discretion of the trial court.

[Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 539, citing People v. Miller

(1990) 50 Cal.3d 954, 994; People v. Breaux (1991) 1 Cal.4th 281, 319.) “Although the

court must take care to exercise its power without coercing the jury into abdicating its

independent judgment in favor of considerations of compromise and expediency

[citation], the court may direct further deliberations upon its reasonable conclusion that


       3  The Moore instruction is given to a deadlocked jury to spur further
deliberations by reminding them to be open to changing their minds in order to reach a
verdict, if one can be reached without violating their individual judgment. The
instruction also suggests methods of refreshing deliberation, such as role-playing jurors
holding opposite views. (Moore, supra, 96 Cal.App.4th at pp. 1118-1119.)


                                             28
such direction would be perceived ‘“as a means of enabling the jurors to enhance their

understanding of the case rather than as mere pressure to reach a verdict . . . .”

[Citation.]’ [Citation.]” (Proctor, at p. 539.)

       Defendant first argues that the trial court gave the instruction without questioning

the jury to ascertain whether there was a “reasonable probability” they could reach a

verdict. There is no such requirement. A jury may not be dismissed unless the court

finds there is no reasonable probability of a verdict. The trial court has discretion

whether to allow deliberation to continue and need not inquire of the jury.

       Defendant next asserts that the Moore charge improperly suggests that the jury

must reach a verdict and that it pressured holdout jurors to defer to the majority.

Defendant acknowledges the Moore instruction has been recognized as a proper charge

to a jury reporting difficulties. (People v. Whaley (2007) 152 Cal.App.4th 968, 983;

People v. Hinton (2004) 121 Cal App.4th 655, 661; Parker v. Small (9th Cir. 2011) 665

F.3d 1143, 1148.) He urges this court to follow the reasoning of Justice McAdams’s

concurrence in Whaley, which found the “‘reverse role playing’” suggestion troubling

and the overall instruction to create an expectation of a verdict. (Whaley, at p. 985)

However, even Justice McAdams agreed that the effect was insufficient to reach a level

requiring reversal. Here, on facts less troubling than the 11-1 split known to the trial

judge in Whaley, we decline to find the instruction coercive.

       D.     CUMULATIVE ERRORS

       Defendant contends the cumulative effect of defense counsel’s errors requires

reversal of his conviction and sentence even if none of the errors is sufficient


                                             29
individually. We conclude that any errors or assumed errors were nonprejudicial,

whether reviewed separately or cumulatively.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                    MILLER
                                                                                   J.


We concur:


KING
                      Acting P. J.


CODRINGTON
                                J.




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