Filed 6/7/16 P. v. Trujillo CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B263433

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA088548)
         v.

BRYAN TRUJILLO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S.
Arnold, Judge. Affirmed.


         Jennifer Peabody, 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, Scott A. Taryle and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.


                                                       ******
       Bryan Trujillo appeals from his judgment of conviction for first degree
premeditated murder (premeditated murder) of his mother, Emma Rodriguez. Appellant
contends there was insufficient evidence of premeditation and deliberation, and
moreover, the court erred in refusing to instruct on voluntary manslaughter. We affirm.
                                         FACTS
       Sofia Noriega had been friends with appellant’s mother, Rodriguez, since
appellant was four years old. Noriega and Rodriguez were so close they were like sisters.
In August or September 2013, Noriega was riding in the car with Rodriguez and
appellant. Appellant told his mother that he was going to kill her on that occasion.
Noriega told appellant he should not talk to his mother like that. He replied, “Shut up,
bitch or I will kill you too.” He said this in a “nasty way” and did not sound like he was
joking. Noriega had seen appellant fight with his mother and be verbally abusive towards
her many times.
       In September 2013, Noriega received a call from Rodriguez, who was very scared
because appellant “was going crazy” in her basement. He had broken a computer with
his fist and had broken a telephone. Rodriguez was crying and shaking. Noriega advised
Rodriguez to leave her home and come to Noriega’s, which she did.
       Kim Joseph Wescott was married to Rodriguez from 2002 to 2007 but maintained
contact with her even after they divorced. He felt appellant became moodier as he got
older. Appellant and his mother would argue over his lack of work and failure to find a
job.
       Wescott and Rodriguez co-owned a house. In October 2013, a number of people
lived on the property, including Rodriguez and appellant. Wescott and his adult son,
Anthony Wescott (Anthony), lived in a two-room extension to the main house. Renters
lived in the main house. Rodriguez stayed in a unit behind the garage, and appellant was
staying with her temporarily.
       On October 2, 2013, Marcelino Funes received a call from Rodriguez at
approximately 9:00 a.m. Funes had known her for several years and had done work for
her before, and on that date she asked him to replace a window. He agreed, and


                                             2
Rodriguez picked him up and drove him to her house. In the car they talked about how
Rodriguez was “very angry” with appellant because he had caused trouble with the
neighbors. She said she was going to “throw[] him out on the street.” Funes was familiar
with appellant and had interacted with him approximately three times before that day.
       When Rodriguez and Funes arrived at her house, she asked him to measure the
window. She said appellant would be coming home, and she also asked Funes to tell
appellant “to bring all his things out of his room and to lock the door.” Rodriguez then
left in her car. Appellant arrived about 30 minutes later, and Funes relayed Rodriguez’s
message. Appellant just laughed. Funes “told him to change his lifestyle, that his
lifestyle was not right.”
       Appellant went inside and Funes sat on the patio. Appellant came back outside
and sat on the patio with Funes. Appellant asked if Funes was waiting for Rodriguez, and
Funes responded, “yes.” Appellant asked him the same question three times but did not
say anything else. Rodriguez called Funes’s cell phone while they were sitting on the
patio and asked to speak to appellant. Appellant refused to speak to her and went to the
backyard area to talk to Anthony.
       Approximately an hour after Rodriguez left, she returned home and looked “very
angry.” She asked Funes to measure the window again and went to the backyard area to
talk to appellant. Funes could not report on what she said because Rodriguez was
speaking English, and Funes is a Spanish speaker. Rodriguez talked “louder” to
appellant for approximately 10 minutes; Funes did not hear appellant respond to her
during this time. Anthony said he heard appellant and Rodriguez arguing outside around
that time, although he characterized it as a disagreement and not “screaming at each other
or anything like that.”
       Rodriguez then went to the patio and sat with Funes, and appellant went to the
back of the property, where the unit he shared with Rodriguez was located. Rodriguez
said she was going to take Funes to Home Depot in a few minutes and would “be right
back.” She walked toward the back of the property as well.



                                            3
       Funes waited approximately 15 minutes on the patio, and then appellant walked
out alone. During that 15 minutes, Funes did not hear any sounds of a struggle or fight.
Appellant grabbed his backpack and skateboard and walked out to the street.
       Funes waited approximately 20 more minutes on the patio for Rodriguez and then
went to look for her. He found her on the floor of her unit with blood next to her and
called 911. The paramedics arrived approximately eight minutes later, but Rodriguez had
already died.
       Rodriguez had a number of injuries from multiple blows or strikes. She had
lacerations and hemorrhaging to both eyes and eye sockets, resulting in black eyes;
lacerations above both eyebrows and on her lip; abrasions and lacerations all over her
scalp; bruises on her chest, neck, face, and arm; and numerous fractures to ribs on both
sides of her body. She suffered bleeding beneath the scalp, or subgaleal hemorrhaging;
bleeding beneath the thickest and outermost of the three membranes covering the brain,
or subdural hemorrhaging; and bleeding beneath a deeper membrane of the brain, or
subarachnoid hemorrhaging. Such hemorrhaging indicated a significant amount of force
used in the injuries to her skull, scalp, and brain.
       Rodriguez also had indices of neck compression or strangulation, including linear
scrapes on her neck in an up-and-down direction, which might have occurred as a result
of someone drawing fingernails down the neck in a defensive posture; petechial
hemorrhaging, or tiny pinpoint hemorrhaging in the eyes; hemorrhaging on her tongue,
indicating repeated bites to her tongue; hemorrhaging in her neck muscles on both sides;
and fractures in the hyoid bone and cartilage of the neck. The fractures to her ribs
indicated a strong possibility of someone sitting on her chest. Strangling someone to
death takes two to three minutes of continual pressure. Strangulation would take longer
if the victim were resistant. The damage to Rodriguez’s face and neck would have
required at least five to seven blows. The medical examiner concluded Rodriguez’s
cause of death was multiple blunt force trauma. He could not rule out strangulation as a
contributing factor in her death.



                                               4
       Rodriguez’s blood was found on the jacket, shirt, sock, pants, and right shoe
appellant was wearing when arrested, as well as on the bottom of his skateboard.
       The jury convicted appellant of premeditated murder. (Pen. Code, §§ 187, subd.
(a), 189.)1 The court sentenced appellant to 25 years to life imprisonment. Appellant
filed a timely notice of appeal.
                                       DISCUSSION
1. Sufficiency of the Evidence of Premeditation and Deliberation
       Appellant contends we must reverse because the prosecution presented insufficient
evidence of premeditation and deliberation. We disagree.
       In evaluating appellant’s contention, we “review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial evidence—
that is, evidence which is reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v.
Johnson (1980) 26 Cal.3d 557, 578.) We “resolve[] neither credibility issues nor
evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34
Cal.4th 1149, 1181.) Even if we might have made different factual findings or drawn
different inferences than the jury, we do not reverse the judgment if the circumstances
reasonably justify the factual findings of the jury. (People v. Perez (1992) 2 Cal.4th
1117, 1126 (Perez).)
       First degree murder is a “willful, deliberate, and premeditated killing.” (§ 189.)
“To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary to prove
the defendant maturely and meaningfully reflected upon the gravity of his or her act.”
(Ibid.) Moreover, deliberation and premeditation do not necessarily require any extended
period of time. “‘The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated


1      Further undesignated statutory references are to the Penal Code.



                                              5
judgment may be arrived at quickly . . . .’” (Perez, supra, 2 Cal.4th at p. 1127, quoting
People v. Thomas (1945) 25 Cal.2d 880, 900.)
       In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), our high court
identified three categories of circumstantial evidence bearing on premeditation and
deliberation: (1) planning activity prior to the murder; (2) motive to kill; and (3) manner
of killing. From a survey of cases, the court noted that premeditated murder typically
involved all three types of evidence, “at least extremely strong evidence” of planning
activity, or evidence of motive in conjunction with either planning activity or manner of
killing. (Id. at p. 27.) Anderson did not, however, purport to define the elements of first
degree murder or “establish an exhaustive list that would exclude all other types and
combinations of evidence.” (Perez, supra, 2 Cal.4th at p. 1125.) “The Anderson
guidelines are descriptive, not normative.” (Ibid.)
       The evidence in this case was sufficient to show premeditation and deliberation.
First, there was substantial evidence of motive. Appellant had a history of fighting with
and being verbally abusive towards his mother. One episode that occurred the month
before she died caused her to become so fearful that she left her house and stayed at
Noriega’s for the night. And not long before that instance, appellant was fighting with
Rodriguez and told her he was going to kill her. The day of her death, Rodriguez threw
him out of her house, where he had been staying temporarily. Although a reasonable
person would not be motivated to kill over an eviction by one’s parent, one may infer
from the evidence that this was enough in appellant’s mind. The evidence showed
appellant did not react reasonably when it came to his mother, had been angry enough
before to threaten killing her, had acted abusively towards her, and had reason to want to
punish her on the day in question.
       Second, the manner of killing contributed to substantial evidence of premeditation
and deliberation. Rodriguez died of blunt force trauma. Additionally, the medical
examiner could not rule out strangulation as a contributing factor in her death. Either
way—whether appellant strangled and beat her or only beat her to death—the manner of
killing suggests appellant had time to reflect and arrive at a judgment to kill. It is not as


                                              6
though he can claim he fired off a single bullet or stabbed her once in a particularly
deadly area, before he had time to think or consider the consequences of his actions.
Death by blunt force trauma required multiple strikes or blows administered to the head
with significant force. The strangulation occurred with enough force to fracture a bone
and cartilage in her neck, and the scratches on her neck indicated she was resisting by
attempting to dislodge the hands around her neck. A reasonable juror could infer that
appellant’s actions were not the result of mistake or uncertainty of purpose, but
premeditation and deliberation. (People v. Shamblin (2015) 236 Cal.App.4th 1, 11-12
[evidence defendant strangled murder victim for one to five minutes, hit victim over the
head several times, and victim tried to fight him off supported reasonable inference that
defendant had time to consider consequences of his actions before choosing to end her
life, providing substantial evidence of premeditation and deliberation].)
       Appellant likens his case to People v. Boatman (2013) 221 Cal.App.4th 1253
(Boatman), but that case is factually dissimilar. The defendant in Boatman shot his
girlfriend in the face with a single bullet. (Id. at p. 1257.) Although there was some
evidence the two had a verbal fight just before the shooting, the defendant (who testified
at trial) consistently maintained the shooting was an accident. (Id. at pp. 1258-1260.)
Immediately after the shooting, a witness heard a commotion “‘like someone was
panicking . . . or screaming like out of fear’” (id. at p. 1259), and the defendant told
another witness to call the police (id. at p. 1261). He also tried to give the victim mouth-
to-mouth resuscitation. (Ibid.) In the recording of the 911 call, the jury could hear the
defendant “crying and repeatedly saying things like, ‘[n]oooo,’ ‘[b]aby,’ and ‘[b]aby, are
you alive, baby . . . .’” (Ibid.) When the police arrived, the defendant ran out of the
house and told the police to call an ambulance. (Id. at p. 1258.) On the way to the police
station, the defendant was crying and asked an officer if he knew whether the victim was
okay, and the defendant said, “‘I can’t lose her. I would do anything for her. How is
someone supposed to go on with their life when they see something like that? We were
just going to watch a movie.’” (Id. at p. 1259.)



                                              7
       The Boatman court held there was no evidence of planning, little or no evidence of
motive, and a shooting that could not be described as “execution style” and so did not
support premeditation. (Boatman, supra, 221 Cal.App.4th. at pp. 1267-1269.) The court
noted the “[d]efendant’s behavior following the shooting is of someone horrified and
distraught about what he had done, not someone who had just fulfilled a preconceived
plan.” (Id. at p. 1267.) Overall, the evidence was insufficient to support a finding of
premeditation and deliberation, and the court reduced the conviction to second degree
murder. (Id. at p. 1274.) Thus, none of the three Anderson factors supported a finding of
premeditated murder in Boatman, in contrast to this case, in which at least two factors do.
Additionally, the behavior of the Boatman defendant after the shooting and his insistence
that it was an accident stands in stark contrast to appellant’s behavior. There was no
evidence appellant acted as though the killing was an accident, or that he tried to help his
mother afterward. Instead, the evidence showed he calmly walked away from the scene,
and Funes discovered Rodriguez’s body 20 minutes later when he decided to look for her.
2. Voluntary Manslaughter Instruction
       Appellant contends we must reverse because the court prejudicially erred in
withdrawing the voluntary manslaughter instruction from the jury. We disagree.
       The court initially instructed the jury on voluntary manslaughter at appellant’s
request because it believed there was “evidence of provocation.” The following day, the
court indicated it had reconsidered the issue of voluntary manslaughter and did not
believe substantial evidence of provocation existed. The court removed the voluntary
manslaughter instruction (CALCRIM No. 570 [“Voluntary Manslaughter: Heat of
Passion—Lesser Included Offense”]) from the packet for the jury and told the jury “to
disregard any instruction yesterday about manslaughter. [¶] The manslaughter
instructions have been removed from the packet. So consideration of manslaughter is not
something that you will have to make.” In pertinent part, the court instructed the jury on
the principles applicable to premeditated murder and second degree murder, including
with CALCRIM No. 522 (“Provocation: Effect on Degree of Murder”), which stated:
“Provocation may reduce a murder from first degree murder to second degree, and may


                                             8
reduce a murder to manslaughter. The weight and significance of the provocation, if any,
are for you to decide. [¶] If you conclude that the defendant committed murder but was
provoked, consider the provocation in deciding whether the crime was first or second
degree murder.”
       Voluntary manslaughter is a lesser included offense of murder. (People v. Thomas
(2012) 53 Cal.4th 771, 813.) “An instruction on a lesser included offense must be given
only if there is substantial evidence from which a jury could reasonably conclude that the
defendant committed the lesser, uncharged offense but not the greater, charged offense.
[Citation.] ‘[E]very lesser included offense, or theory thereof, which is supported by the
evidence must be presented to the jury.”’ (Ibid.) But “the existence of ‘any evidence, no
matter how weak’ will not justify instructions on a lesser included offense . . . .” (People
v. Breverman (1998) 19 Cal.4th 142, 162.) Further, bare speculation does not require the
giving of an instruction on a lesser offense. (People v. Wilson (1992) 3 Cal.4th 926,
941.) “‘Substantial evidence is evidence sufficient to “deserve consideration by the
jury,” that is, evidence that a reasonable jury could find persuasive.’” (People v. Lewis
(2001) 25 Cal.4th 610, 645.) We apply the independent or de novo standard of review to
the court’s refusal to instruct on imperfect self-defense. (People v. Waidla (2000) 22
Cal.4th 690, 733.)
       “Voluntary manslaughter is ‘the unlawful killing of a human being without
malice’ ‘upon a sudden quarrel or heat of passion.’ (§ 192, subd. (a).) An unlawful
killing is voluntary manslaughter only ‘if the killer’s reason was actually obscured as the
result of a strong passion aroused by a “provocation” sufficient to cause an “‘ordinary
[person] of average disposition . . . to act rashly or without due deliberation and
reflection, and from this passion rather than from judgment.’” [Citations.]’ [Citation.]
‘The provocation must be such that an average, sober person would be so inflamed that
he or she would lose reason and judgment. Adequate provocation . . . must be
affirmatively demonstrated.’” (People v. Thomas, supra, 53 Cal.4th at p. 813.)
       Here, we agree with the trial court that there was not substantial evidence
justifying the voluntary manslaughter instruction. Appellant contends there was


                                              9
substantial evidence Rodriguez provoked him and he thus killed her under the heat of
passion because she was angry at appellant on the day of her killing, she asked him to
move out, and the two had a volatile history together. He speculates that they must have
argued in the back room where he killed her, and this argument was substantial evidence
of provocation that would reduce the killing to voluntary manslaughter. But there is no
evidence that appellant and Rodriguez had a heated argument in the room. And even if
we assume appellant was under the influence of a “strong passion” at the time of the
killing, the provocation must be such that an average, sober person would be so inflamed
he or she would lose reason and judgment. (People v. Breverman, supra, 19 Cal.4th at
p. 163.) No reasonable juror would find that telling someone to move out would cause an
average, sober person to lose all reason and judgment, and if Rodriguez said something
more provocative to appellant than that, there is absolutely no evidence of it.
       Moreover, it was not as though Rodriguez sprung the issue on him right then and
there. Funes told appellant his mother wanted him out before she came home, at least 30
minutes to an hour before the two went into the back room together. Appellant had time
to reflect on the issue and cool off. A heat of passion killing occurs “‘suddenly as a
response to the provocation, and not belatedly as revenge or punishment.’” (People v.
Daniels (1991) 52 Cal.3d 815, 868.)
                                      DISPOSITION
       The judgment is affirmed.
                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.



                                             10
