Filed 7/18/16 P. v. Campbell CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B256272

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA097490)
         v.

ERICA ARTAVIA CAMPBELL,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Peter A.
Hernandez, Judge. Affirmed as modified.
         Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, William H. Shin and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
                                   _______________________________
       Erica Artavia Campbell appeals from a judgment entered after a jury found her
guilty of second degree murder. The trial court sentenced her to 15 years to life in prison.
Campbell contends (1) the trial court committed reversible error in denying her
                          1
Batson/Wheeler motion, (2) there is insufficient evidence of malice aforethought to
support her second degree murder conviction, and (3) the trial court committed reversible
error in declining to instruct the jury on voluntary manslaughter based on provocation
and heat of passion. For the reasons explained below, we reject each of these three
contentions. Campbell also contends, and the Attorney General concedes, she is entitled
to two additional days of actual presentence custody credit. We modify the judgment to
correct Campbell’s custody credits. As so modified, we affirm the judgment.
                                    BACKGROUND
       On April 2, 2012, around 2:00 a.m., Campbell stabbed her boyfriend, Markeon
Taylor, and he died as a result of the stab wound to his chest. At trial, Campbell did not
deny she stabbed Taylor, but she disputed she committed murder. She argued theories of
self-defense, voluntary manslaughter (imperfect self-defense), and involuntary
manslaughter (brandishing a weapon with criminal negligence causing death, and
unconsciousness due to voluntary intoxication), and the trial court instructed the jury on
each of these theories.
Prosecution Evidence
       On April 1, 2012, leading up to the incident, Campbell had been drinking alcohol
at the apartment in Pomona she shared with various relatives and Taylor. Some time
before midnight, Taylor left the apartment with Leroy Jefferson (Campbell’s brother),
Marcus Evans (Campbell’s cousin), and Markael Ballou (Jefferson’s friend). It was
Taylor’s birthday, and the men planned to go to a club to celebrate. Campbell stayed at
the apartment. According to Ballou, when Taylor told Campbell he was going out,
Campbell asked why and began arguing with Taylor.

       1
        Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler).

                                             2
       Some time after midnight, the men returned to the apartment. Appellant and the
men socialized as they drank alcohol. About an hour later, Campbell and Taylor began
arguing in the kitchen. Ballou was in the kitchen area of the apartment during their
argument. Ballou saw Campbell push Taylor. Taylor yelled out for Jefferson to come
and control Campbell. Jefferson stepped in between Campbell and Taylor and he pushed
                               2
Taylor against the refrigerator. According to Ballou, Campbell quickly approached
Taylor, brushing against Ballou’s back and pushing him forward as she went by.
Campbell was standing in front of Taylor when Ballou saw Taylor grab his chest. Ballou
heard Taylor say, “She stabbed me. I can’t believe she stabbed me.” Taylor fell to the
floor and did not get back up. Ballou heard Campbell apologize to Taylor.
       Evans was in the bathroom when he heard a commotion and Campbell’s “elevated
scream.” He rushed out of the bathroom and into the kitchen where he found Taylor on
the floor, bleeding. Evans dialed 911. According to Evans, Campbell was hysterical.
She was crying and appeared worried about Taylor.
       When officers arrived, they recovered a bloody kitchen knife that was on the floor
between Campbell and Taylor. The blade of the knife measured approximately three and
one-half inches.
       Taylor died from the stab wound to his left chest. According to the deputy
medical examiner, the wound was three inches deep and penetrated Taylor’s skin,
muscle, chest wall, lung, and heart. The direction of the wound was “front to back, right
to left, slightly downward.” The deputy medical examiner did not find any defensive
injuries on Taylor’s body.
       Pomona Police Department Detective Jerry Uribe interviewed Campbell shortly
before 4:00 a.m. on April 2, 2012. A videotaped recording of the interview was played
for the jury. According to Uribe, Campbell did not appear intoxicated when he


       2
        As set forth below, Jefferson testified for the defense and denied he was in the
kitchen at the time of the stabbing. Ballou, testifying for the prosecution, stated he and
Jefferson were in the kitchen when Taylor was stabbed.

                                             3
interviewed her. Campbell told Uribe she was “drunk as hell” when Taylor was stabbed
and she did not know how it happened. She initially denied stabbing Taylor.
       Later in the interview, Campbell told Uribe that Taylor was stabbed when she and
Taylor were “tussling over the knife.” Campbell stated she and Taylor began arguing in
the kitchen because she “felt like he was disrespecting [her]. He felt like [she] was
disrespecting him.” They started hitting each other. Taylor pushed her and she fell. Her
stomach hurt and she felt scared. Her “first instinct” was “to protect [herself].” She
stood up and grabbed a knife from the kitchen counter. She shouted something like,
“fuck you, don’t touch me. Don’t fucking ever touch me again.” Taylor approached her
and grabbed the knife. Campbell wrestled him for it. When she tried to push him, the
knife stabbed him.
       Detective Uribe interviewed Campbell again two days later on April 4, 2012.
Campbell stated Taylor did not push her down when they were arguing in the kitchen
immediately before he was stabbed. He pushed her down earlier when they were arguing
in the bedroom. She heard him refer to her as a “bitch” when he was talking on the
telephone, so she entered the bedroom to confront him. She told him not to talk about
her, and she “put [her] hand in his face.” He grabbed her wrist, twisted it, and “tossed
[her] on the floor.” She tried to stand up. He “grabbed [her] by the neck and threw [her]
on the floor harder.” Her brother (Jefferson) and the others heard her hit the wall, so they
rushed into the room. Jefferson grabbed her and Evans grabbed Taylor. Jefferson and
Evans told them to calm down. Campbell went into another room and closed the door,
but Taylor kept “nitpicking.” They both went to the kitchen and the arguing continued.
Campbell told Taylor, “‘Shut the fuck up. You can leave.’” She wanted him to leave
because their “arguments [had] been getting physical.” This was not the first time he
held, grabbed, choked, and pushed her.
       Detective Uribe asked Campbell, “when you grabbed that knife, did he [Taylor] do
anything to deserve that?” Campbell responded, “It was just a little – just a little shove,
like ‘Out of my face.’” After Taylor gave her a little shove, Campbell grabbed the knife



                                              4
from the counter. She punched Taylor once with both hands as she held the knife with
both hands.
Defense Evidence
       Campbell testified at trial. She stated that, on April 1, 2012, she started drinking
alcohol when she first woke up and continued drinking alcohol throughout that day and
into April 2, 2012. She described the altercation in the bedroom as follows: “We had a
fight in my bedroom. He twisted my arm. He threw me to the floor and I got back up.
He threw me to the floor again and he choked me, and then I got up and he threw me into
the wall.” Campbell was unable to breathe when Taylor was choking her and she felt
scared. Jefferson came into the room and told Campbell to go into his (Jefferson’s)
room. Campbell told Jefferson she wanted Taylor to move out of the apartment because
she “was tired of him choking [her].” Campbell stated that Taylor had choked her
between five and 20 times during the two months they lived together prior to the
stabbing.
       After the altercation in the bedroom, Campbell went into the kitchen to smoke a
cigarette. Taylor came into the kitchen and they started arguing again. Campbell
testified: “And then I got in his face, and he pushed me.” At that point, she “just had a
reaction to defend [herself].” She “felt a little scared because a few minutes prior to that,
he had choked [her].” She was not angry. Campbell stated that she did not remember
grabbing the knife or stabbing Taylor. She was experiencing a “blackout” as a result of
her alcohol consumption. Later, she testified that she believed her statements to
Detective Uribe about how the stabbing occurred were true—that she punched Taylor
with both hands while holding the knife in both hands as they tussled over the knife. She
denied that she intentionally stabbed Taylor.
       Campbell’s brother, Jefferson, testified in her defense. He stated the altercation in
the bedroom between Campbell and Taylor occurred about one hour prior to the stabbing.
He denied he and Ballou were in the kitchen when Taylor was stabbed. He stated they
were in the living room playing video games, facing away from the kitchen.



                                              5
Verdict and Sentence
         The jury found Campbell guilty of second degree murder. The trial court
sentenced Campbell to 15 years to life in prison.
                                        DISCUSSION
Batson/Wheeler Motion
         Campbell, an African-American woman, contends the trial court erred in denying
a Batson/Wheeler motion she made after the prosecutor exercised a peremptory challenge
to excuse an African-American woman.
         Proceedings below
         After the prosecution exercised its fourth peremptory challenge on Juror No.
     3
9711, Campbell’s counsel made a Batson/Wheeler motion. The following exchange
occurred between the trial court and the parties:
         “The Court: Tell me the reason why, because I don’t see a pattern.
         “[Defense counsel]: Well, there is -- there isn’t a pattern. She’s -- basically Juror
No. [9711] is the sole Black female on the jury panel. There’s one Black male who has
not been questioned yet.
         “The Court: And there’s a third Black person in there as well in the prospective
panel. I think it’s a male.
         “[Defense counsel]: I have not seen a third Black, but it’s denying my client a
right to a jury of her peers. To just exclude this lone female, the only female that is
currently on the panel of people who have been questioned, and there’s no reason that she


         3
         In providing the required biographical information during voir dire, Juror No.
9711 stated she lived in Covina, was employed as a science teacher, was married to a
man who worked in the information technology department at Kaiser, and did not have
children. She had never served on a jury although she had reported for jury duty. Her
mother was an attorney who no longer practiced and her former roommate was an
attorney who practiced corporate law. In responding to a question from the trial court to
all prospective jurors about whether anyone close to them had been killed by another
person, Juror No. 9711 stated two of her cousins had been killed. She was not asked to
provide further details about the killings.

                                               6
has given in terms of her responses to my questioning, the court’s questioning or
prosecutor’s questioning, which would justify her being excused.
              “The Court: But this is the peremptory challenge stage. Unless there’s some sort
of pattern or some sort of inference of a pattern that [the prosecutor] is excluding
individuals because of their race, the court then would initiate the process to ask [the
prosecutor] for any nonracial reasons. [¶] I’m still going to ask her, but I don’t
necessarily think that, at this stage, there’s a Batson or Wheeler issue. [¶] But I will hear
from [the prosecutor].
              “[The prosecutor]: Thank you. [¶] Aside from not having the prima facie
showing, the People’s concern is that she [Juror No. 9711] indicated she was only paid
for five days. But our jury sheet indicates she has unlimited -- an unlimited number of
days. In my experience, especially teachers usually in the public school system do get
        [4]
that.         [¶] In addition [during] counsel’s voir dire on self-defense, her statement was if
                                                                                   [5]
she did kill someone in self-defense, she was not going to lose sleep over it.           So it
would be for those reasons, Your Honor, that the peremptory was exercised.
              “The Court: [Defense counsel], did you want to respond?
              “[Defense counsel]: She did say that in response to my questioning. And I would
just add that there can be a pattern, since she basically is the only Black female who has




              4
        In response to a question from the trial court about “school commitments” that
would conflict with jury service, Juror No. 9711 stated, “I’m a district teacher, and I’m
only paid for five days.” The court inquired if Juror No. 9711 could work part-time if she
were required to serve on the jury. Juror No. 9711 agreed to ask her employer about that.
When the court asked for the name of the district where she worked, Juror No. 9711
responded, “Green Dot Public School charter District in L.A.U.S.D. [Los Angeles
Unified School District]” at the Oscar De La Hoya campus.
              5
         When Campbell’s counsel asked Juror No. 9711, “self-defense, how do you feel
about that,” she replied: “I feel self-defense is okay. I mean, if someone is coming after
me, I’m going to do what I have to do. My last intention is not to kill them, but if they
die, then they die, I guess. I’m not going to lose sleep over it for too long.”

                                                   7
been questioned or Black person peer who has been questioned, so -- but that’s
submitted.
       “The Court: Right. And I agree. She’s the only Black female. And let’s be clear,
she’s the only Black female on this panel, and this is the panel that has been drawn up
from, you know, the community that we’re in, or based on the criteria that the court has
set up. [¶] I don’t necessarily think there’s a pattern, but I don’t necessarily think [the
prosecutor] should be prohibited from excluding someone on a peremptory based on a
nonracial reason if she’s articulated those reasons. [¶] The Wheeler/Batson motion will
be denied.”
       Applicable law
       “Both the federal and state Constitutions prohibit any advocate’s use of
peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476
U.S. at p. 97; Georgia v. McCollum (1992) 505 U.S. 42, 59; Wheeler, supra, 22 Cal.3d at
pp. 276-277.) Doing so violates both the equal protection clause of the United States
Constitution and the right to trial by a jury drawn from a representative cross-section of
the community under article 1, section 16 of the California Constitution.” (People v.
Lenix (2008) 44 Cal.4th 602, 612.) “The Batson three-step inquiry is well established.
First, the trial court must determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge based on race. Second, if
the showing is made, the burden shifts to the prosecutor to demonstrate that the
challenges were exercised for a race-neutral reason. Third, the court determines whether
the defendant has proven purposeful discrimination. The ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent of the strike.
[Citation.] The three-step procedure also applies to state constitutional claims.” (Id. at
pp. 612-613.)
       “[W]here (1) the trial court has determined that no prima facie case of
discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her
reasons for excusing the juror for the record, (3) the prosecutor provides
nondiscriminatory reasons, and (4) the trial court determines that the prosecutor’s

                                               8
nondiscriminatory reasons are genuine, an appellate court should begin its analysis of the
trial court’s denial of the Batson/Wheeler motion with a review of the first-stage ruling.”
(People v. Scott (2015) 61 Cal.4th 363, 391.)
        Analysis
        Campbell attempted to establish a prima facie case of discrimination by pointing
out Campbell is an African-American woman, the prosecutor exercised a peremptory
challenge on Juror No. 9711, the sole African-American woman in the venire, and none
of Juror No. 9711’s responses to questions warranted her excusal.
        A “court reviewing a first-stage ruling that no inference of discrimination exists
‘may consider apparent reasons for the challenges discernible on the record’ as part of its
‘consideration of “all relevant circumstances.”’” (People v. Scott, supra, 61 Cal.4th at p.
390.)
        Despite Campbell’s assertion to the contrary, one of Juror No. 9711’s responses
stands out in the record as a race-neutral reason for the peremptory challenge. As set
forth above, in responding to a direct question from Campbell’s counsel regarding her
“feel[ings] about” self-defense, Juror No. 9711 replied: “I feel self-defense is okay. I
mean, if someone is coming after me, I’m going to do what I have to do. My last
intention is not to kill them, but if they die, then they die, I guess. I’m not going to lose
sleep over it for too long.” The focus of Campbell’s defense case was self-defense.
Although other prospective jurors stated they would use self-defense if they felt their
lives were at risk, none expressed such a nonchalant attitude about taking someone’s life
                   6
in self-defense.


        6
         We are not conflating the first-stage Batson/Wheeler analysis—whether
Campbell established a prima facie case of discrimination—with the third stage
analysis—whether the prosecutor’s proffered nondiscriminatory reasons for exercising
the peremptory challenge are genuine—even though the prosecutor cited Juror No.
9711’s response to the self-defense question as a reason for excusing her. Regardless of
whether the prosecutor cited this as one of her reasons, Juror No. 9711’s response to the
self-defense question independently stands out in the record as a race-neutral reason for
her excusal, especially given that one of the key elements of Campbell’s proffered prima

                                               9
       Based on the circumstances demonstrated in the record at the time Campbell made
her Batson/Wheeler motion—this was the first challenge the prosecutor made to an
African-American juror, the prosecutor had not excused the other African-American juror
who had been questioned, and, most importantly, there was an obvious reason for Juror
No. 9711’s excusal in her response to the self-defense question—we conclude the trial
court did not err in finding no prima facie case of discrimination.
Sufficiency of Evidence of Malice Aforethought
       Campbell contends there is insufficient evidence of malice aforethought to support
her second degree murder conviction.
       As the trial court instructed the jury, “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: [¶] 1. She
intentionally committed an act; [¶] 2. The natural and probable consequences of the act
were dangerous to human life; [¶] 3. At the time she acted, she knew her act was
dangerous to human life; [¶] AND [¶] 4. She deliberately acted with conscious
disregard for human life. [¶] Malice aforethought does not require hatred or ill will
toward the victim. It is a mental state that must be formed before the act that causes
death is committed. It does not require deliberation or the passage of any particular
period of time.” (CALCRIM No. 520.)
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the


facie case was Campbell’s assertion that none of Juror No. 9711’s responses to questions
stood out as a reason justifying her excusal.

                                             10
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, 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.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] . . . ‘“‘“If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.”’
[Citations.]”’” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
       There is substantial evidence of express malice (intent to kill) in the record.
Campbell grabbed a knife and stabbed Taylor in his left chest, leaving a wound three
inches deep that penetrated Taylor’s skin, muscle, chest wall, lung, and heart. The
location of the wound and the force with which Campbell had to stab to insert the knife
three inches into Taylor’s chest indicate intent to kill.
       Campbell’s own statements to Detective Uribe are substantial evidence of implied
malice. During her second interview, Campbell stated she “punched” Taylor while
holding the knife in both hands. Death is a natural and probable consequence of
Campbell’s intentional act. It is inconceivable Taylor did not know her act was
dangerous to human life. Taylor acted with conscious disregard for Taylor’s life when
she punched him while holding a knife in both hands.
       Campbell cites People v. Collins (1961) 189 Cal.App.2d 575, 591 for the
proposition, “The prosecution, having presented as a part of its case the statement of
defendant as to how the killing occurred, is bound by that evidence in the absence of
proof to the contrary.” Campbell asserts there was no evidence of malice based on her
“uncontroverted” statements that “she loved Markeon Taylor and did not intend to hurt
him . . . and that she only acted to defend herself.” Here, however, the jury was free to
reject Campbell’s self-defense theory and doubt the credibility of these statements. As
set forth above, the manner in which Campbell stabbed Taylor indicated she intended to
hurt him and the prosecution presented evidence (e.g., Ballou’s testimony) indicating

                                              11
Campbell did not act in self-defense. The record contains substantial evidence of malice
to support the second degree murder conviction.
Request for Jury Instruction on Voluntary Manslaughter (Heat of Passion)
       Campbell contends the trial court erred in denying her request for a jury
instruction on voluntary manslaughter based on provocation and heat of passion.
       The omitted instruction—CALCRIM No. 570—provides:
       “A killing that would otherwise be murder is reduced to voluntary manslaughter if
the defendant killed someone because of a sudden quarrel or in the heat of passion.
       “The defendant killed someone because of a sudden quarrel or in the heat of
passion if:
       “1. The defendant was provoked;
       “2. As a result of the provocation, the defendant acted rashly and under the
influence of intense emotion that obscured (his/her) reasoning or judgment;
       “AND
       “3. The provocation would have caused a person of average disposition to act
rashly and without due deliberation, that is, from passion rather than from judgment.
       “Heat of passion does not require anger, rage, or any specific emotion. It can be
any violent or intense emotion that causes a person to act without due deliberation and
reflection.
       “In order for heat of passion to reduce a murder to voluntary manslaughter, the
defendant must have acted under the direct and immediate influence of provocation as I
have defined it. While no specific type of provocation is required, slight or remote
provocation is not sufficient. Sufficient provocation may occur over a short or long
period of time.
       “It is not enough that the defendant simply was provoked. The defendant is not
allowed to set up (his/her) own standard of conduct. You must decide whether the
defendant was provoked and whether the provocation was sufficient. In deciding
whether provocation was sufficient, consider whether a person of average disposition, in



                                            12
the same situation and knowing the same facts, would have reacted from passion rather
than from judgment.
       “[If enough time passed between the provocation and the killing for a person of
average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then
the killing is not reduced to voluntary manslaughter on this basis.]
       “The People have the burden of proving beyond a reasonable doubt that the
defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the
People have not met this burden, you must find the defendant not guilty of murder.”
(CALCRIM No. 570.)
       Proceedings below
       Immediately before the parties were to begin closing arguments, and after the trial
court read the instructions to the jury, Campbell’s counsel informed the trial court he
wanted to “add” CALCRIM No. 570 and stated he believed he had requested the
instruction earlier. The court stated it recalled defense counsel requesting the instruction
at some point, but believed counsel had withdrawn the request because counsel did not
mention the instruction when the court reviewed with the parties the instructions it
planned to give. The court denied the request and told the parties it would state its
reasons on the record before the end of trial.
       The trial court revisited the issue prior to Campbell’s argument to the jury, after
the prosecutor made her opening argument and the court excused the jury for the evening
recess. In support of the request for CALCRIM No. 570, Campbell’s counsel stated:
       “On the heat of passion, the thing is, Leroy Jefferson testified before this incident,
they were arguing; and so did Markael Ballou, he said they were arguing and they had to
be separated by Leroy Jefferson.
       “Erica Campbell’s statement before the stabbing, there was an argument and even
Marcus Evans who said he wasn’t present but he heard some type of rumble or whatever,
prior to him believing that Mr. Taylor had been struck with the knife; so with that regard,
and with Erica Campbell’s statement also, that she was pushed beforehand, beate[n] to
the ground -- or not the ground, is basically some argument in heat of passion right before

                                             13
that. And whether or not that is adequate provocation, that is something that the jury
should be able to weigh.”
       The trial court asked defense counsel: “You’re focusing on either the push where
she moved a little bit or the subsequent testimony of her that she was pushed and fell
down? Either one of those two versions is sufficient provocation for heat of passion?”
Defense counsel answered affirmatively, adding, “Also combined with the argument that
all the other witnesses said was occurring immediately before that.”
       The trial court ruled there was insufficient evidence of provocation to warrant
instructing the jury with CALCRIM No. 570. The court stated, “the appropriate
instruction is only a self-defense one.” The trial court instructed the jury on self-defense
and imperfect self-defense.
       Applicable law
       An “intentional killing is reduced to voluntary manslaughter if other evidence
negates malice. Malice is presumptively absent when the defendant acts upon a sudden
quarrel or heat of passion on sufficient provocation ([Pen. Code,] § 192, subd. (a)).”
(People v. Manriquez (2005) 37 Cal.4th 547, 583.) “‘The provocative conduct by the
victim may be physical or verbal, but the conduct must be sufficiently provocative that it
would cause an ordinary person of average disposition to act rashly or without due
deliberation and reflection. [Citations.] “Heat of passion arises when ‘at the time of the
killing, the reason of the accused was obscured or disturbed by passion to such an extent
as would cause the ordinarily reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion rather than from judgment.’”’”
(Id. at pp. 583-584.) “To be adequate, the provocation must be one that would cause an
emotion so intense that an ordinary person would simply react, without reflection.”
(People v. Beltran (2013) 56 Cal.4th 935, 949.)
       Voluntary manslaughter is a lesser included offense of murder. (People v.
Breverman (1998) 19 Cal.4th 142, 153.) A trial court errs if it fails to instruct “on all
theories of a lesser included offense which find substantial support in the evidence. On
the other hand, the court is not obliged to instruct on theories that have no such

                                             14
                                      7
evidentiary support.” (Id. at p. 162.) The “existence of ‘any evidence, no matter how
weak’ will not justify instructions on a lesser included offense, but such instructions are
required whenever evidence that the defendant is guilty only of the lesser offense is
‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial
evidence’ in this context is ‘“evidence from which a jury composed of reasonable
[persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was
committed.” (Ibid.)
       “In deciding whether there is substantial evidence of a lesser offense, courts
should not evaluate the credibility of witnesses, a task for the jury.” (People v.
Breverman, supra, 19 Cal.4th at p. 162.) “On appeal, we apply a de novo standard of
review.” (People v. Manriquez, supra, 37 Cal.4th at p. 581.)
       Analysis
       The record does not contain substantial evidence indicating Campbell was feeling
any “violent or intense emotion” at the time she stabbed Taylor. (CALCRIM No. 570.)
At trial, Campbell testified that when Taylor pushed her in the kitchen she “felt a little
scared because a few minutes prior to that, he had choked [her.]” She further testified
that after Taylor pushed her, her “physical instinct was to protect [herself].” She also
testified that at the time she stabbed Taylor, she was experiencing a “blackout” as a result
of her alcohol consumption. Absent from the record is evidence indicating that at the
time Campbell stabbed Taylor, she was feeling some violent or intense emotion that
“‘“‘would cause the ordinarily reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion rather than from judgment.’”
[Citation.]’” (People v. Manriquez, supra, 37 Cal.4th at pp. 583-584.)



       7
         In People v. Breverman, supra, the California Supreme Court addressed the trial
court’s sua sponte duty to instruct on a lesser included offense. (People v. Breverman,
supra, 19 Cal.4th at p. 162.) The principles set forth in Breverman also are applicable
here where Campbell requested an instruction on a lesser included offense and the trial
court refused to give it. (See People v. Elize (1999) 71 Cal.App.4th 605, 611.)

                                              15
          As discussed above, “Heat of passion has both objective and subjective
components.” (People v. Enraca (2012) 53 Cal.4th 735, 759.) “Subjectively, ‘the
accused must be shown to have killed while under “the actual influence of a strong
passion” induced by such provocation.’” (Ibid.) Based on Campbell’s statements to
Detective Uribe and her trial testimony, she was not under the actual influence of a strong
passion at the time she stabbed Taylor. She maintains she stabbed him in self-defense.
The trial court did not err in declining to instruct the jury on heat of passion with
CALCRIM No. 570.
Presentence Custody Credits
          Campbell is entitled to presentence custody credit for all days she spent in custody
prior to sentencing. (Pen. Code, § 2900.5, subd. (a).)
          Campbell’s probation report lists the date of her arrest as April 4, 2012. The trial
court sentenced her on April 23, 2014. Thus, the court awarded Campbell 750 days of
presentence custody credit—the total number of days she spent in custody from April 4,
2012 to April 23, 2014.
          At trial, Detective Uribe testified he booked Campbell for murder on April 2,
2012. She was in jail from April 2 to April 4, 2012. Detective Uribe released Campbell
from custody on April 4, 2012 to gather additional information. She was rearrested later
the same day. As the Attorney General concedes, Campbell is entitled to custody credit
for April 2 and 3, 2012, for a total award of 752 days of actual presentence custody
credit.




                                                16
                                     DISPOSITION
      The trial court is ordered to correct the judgment to reflect that Campbell is
awarded 752 days of actual presentence custody credit. As so modified, the judgment is
affirmed. The clerk of the superior court is directed to prepare an amended abstract of
judgment and to forward it to the Department of Corrections and Rehabilitation.
      NOT TO BE PUBLISHED.




                                                        CHANEY, J.


I concur:



             JOHNSON, J.




                                            17
       ROTHSCHILD, P. J., Dissenting.
       I disagree with the majority’s conclusion that there was insufficient evidence to
support a voluntary manslaughter instruction for heat of passion. In determining whether
such an instruction is warranted, we must consider not only the moment immediately
preceding the killing, but also the past history of provocation between the parties. “The
provocative conduct [sufficient to reduce a killing from murder to manslaughter] may be
physical or verbal, and it may comprise a single incident or numerous incidents over a
period of time.” (People v. Le (2007) 158 Cal.App.4th 516, 528.) Thus, in People v.
Borchers (1958) 50 Cal.2d 321, the court held that a long history between the defendant
and the victim was relevant to the issue of a heat-of-passion defense. “From the evidence
viewed as a whole the trial judge could well have concluded that defendant was roused
to a heat of ‘passion’ by a series of events over a considerable period of time: [The
victim’s] admitted infidelity, her statements that she wished she were dead, her attempt to
jump from the car on the trip to San Diego, her repeated urging that defendant shoot her,
[her child], and himself on the night of the homicide, and her taunt, ‘are you chicken.’”
(Id. at pp. 328-329.) Furthermore, a heat-of-passion instruction may be appropriate even
where there was a time gap between the primary provocations and the killing. (See, e.g.,
People v. Berry (1976) 18 Cal.3d 509, 515-516 [heat-of-passion instruction proper where
defendant lay in wait for victim for 20 hours, before the victim triggered the defendant’s
rage again by screaming at him].)
       Nor is it dispositive that Campbell claimed that she acted in self-defense, rather
than in a heat of passion. As the Supreme Court has held, “the sua sponte duty to instruct
on lesser included offenses, unlike the duty to instruct on mere defenses, arises even
against the defendant’s wishes, and regardless of the trial theories or tactics the defendant
has actually pursued. Hence, substantial evidence to support instructions on a lesser
included offense may exist even in the face of inconsistencies presented by the defense
itself.” (People v. Breverman (1998) 19 Cal.4th 142, 162-163; accord People v. Barton
(1995) 12 Cal.4th 186, 194-195.) The Court explained that “[t]his means that substantial
evidence of heat of passion and unreasonable self-defense may exist, and the duty to
instruct sua sponte may therefore arise, even when the defendant claims that the killing
was accidental, or that the states of mind on which these theories depend were absent.”
(People v. Breverman, supra, at p. 163 fn. 10.)
       Indeed, an instruction on heat of passion need not be in tension with an instruction
on perfect or imperfect self-defense: “‘“[I]n the usual case,”’ a heat-of-passion
instruction ‘“supplements the self-defense instruction.”’” (People v. Millbrook (2014)
222 Cal.App.4th 1122, 1138.) This is because when a person is in a situation in which
she believes she must kill in order to protect her own life, she is often involved in a
confrontation that would arouse the passions of a reasonable person. For example, in
People v. Thomas (2013) 218 Cal.App.4th 630, the court held that the trial court had
erred by failing to instruct the jury on a heat-of-passion theory of manslaughter. The
court described the circumstances of that case as follows: “All the witnesses agree that
minutes before he killed [the victim] Navarro, [the defendant] Thomas had been involved
in an argument and physical altercation with the Ortiz brothers and Navarro. Ignacio
Ortiz described the argument as ‘pretty heated,’ and another witness characterized the
event leading up to the shooting as a tussle and commotion. The Ortiz brothers and
Navarro got the better of Thomas, and various accounts have him crying, calling out for
his father or being dragged across the apartment parking lot. Shortly before the shooting,
Thomas was seen pacing in the parking lot and he seemed angry. Once he retrieved
the assault weapon from his car, his father was trying to calm him down. That is when
Navarro approached. Thomas says Navarro lunged at him, and he pulled the trigger.
Thomas thought Navarro was going for the gun, and said he did not intend to fire. He
fired because he was afraid, nervous and not thinking clearly. Although these facts may
fit more precisely with a homicide mitigated by imperfect self-defense, we cannot rule
out that they may also show that Thomas was guilty only of voluntary manslaughter
because when he shot Navarro his passion was aroused and his reason was obscured due
to a sudden quarrel.” (Id. at p. 645.)
       In this case, although Campbell testified that she acted in self-defense when
she stabbed Taylor, there was evidence supporting a heat-of-passion theory. Campbell

                                              2
testified that Taylor had a history of abusing her. They had fought almost daily since
moving into an apartment together two months earlier, including multiple occasions when
Taylor choked her and threw her into a wall. Campbell and Taylor had argued heatedly
both before Taylor and his friends went out drinking and after they returned. Campbell
testified that, shortly before the stabbing, she had fought with Taylor in their bedroom.
He twisted her arm, threw her to the floor multiple times, choked her, and threw her
into a wall. His violence terrified her. Taylor followed Campbell to the kitchen, started
arguing with her again, and pushed her. Then she picked up the knife.
       It is not our function to weigh this evidence. Instead, “we review the evidentiary
support for an instruction ‘in the light most favorable to the defendant’ [citation] and
should resolve doubts as to the sufficiency of the evidence to warrant instructions
‘“in favor of the accused.”’” (People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)
Moreover, “in California the law of provocation focuses on ‘“emotion reasonableness”’
(i.e., ‘whether “the defendant’s emotional outrage or passion was reasonable”’), not on
‘“act reasonableness”’ (i.e., ‘whether “a reasonable person in the defendant’s shoes
would have responded or acted as violently as the defendant did[]”’)[.] [Citations.]
We assess the emotional profile of the defendant and its connection to the reasonableness
of her reaction to the provocation rather than whether it was reasonable for her to kill
under the circumstances.” (Id. at pp. 1481-1482.)
       According to the facts as Campbell described them, she was subjected to physical
and emotional abuse almost daily for two months. The last act of abuse occurred shortly
before the stabbing. When Taylor followed her to the kitchen and shoved her one last
time, she responded by stabbing him. This was sufficient provocation to “cause an
emotion so intense that an ordinary person would simply react, without reflection.”
(People v. Beltran (2013) 56 Cal.4th 935, 949.) Campbell was entitled to an instruction
on heat-of-passion manslaughter. For this reason, I respectfully dissent.




                                                         ROTHSCHILD, P. J.

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