    Filed 3/4/14 P. v. Navarro CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B245484
                                                                          (Super. Ct. No. 2011005398)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

JUSTO MORA NAVARRO,

     Defendant and Appellant.




          Justo Mora Navarro appeals from the judgment entered following his conviction
by a jury of the second degree murder of Gilberto Aguilera (Pen. Code, §§ 187, subd. (a),
189)1 and threatening to commit a crime against Javier Viorato that would result in death
or great bodily injury (criminal threats). (§ 422, subd. (a).) As to the murder conviction,
the jury found true an enhancement allegation that appellant had personally and
intentionally discharged a firearm. (§ 12022.53, subd. (d).) As to the criminal threats
conviction, the jury found true an enhancement allegation that appellant had personally
used a firearm. (§ 12022.5, subd. (a).) For second degree murder with the enhancement,
appellant was sentenced to prison for 40 years to life. For criminal threats with the
enhancement, he was sentenced to a consecutive term of 7 years.



1
    All statutory references are to the Penal Code.
          Appellant contends that (1) the trial court erroneously instructed the jury on the
lesser included offense of heat of passion voluntary manslaughter, and (2) he was denied
the effective assistance of counsel. We affirm.
                                              Facts
                                       People's Evidence
          Appellant and Gilberto Aguilera were partners in a flower-growing business.
They had a falling out, and Aguilera sued appellant. The lawsuit was settled in
November 2010.
          Appellant was living in a trailer on the premises of another flower-growing
business, Don Jose Nursery, which was owned by Jose Valerio. Valerio knew Aguilera
and arranged to meet with him at the nursery on February 1, 2011. Javier Viorato drove
Aguilera to the nursery in Viorato's truck.
          Upon arriving at the nursery, Aguilera and Viorato got out of the truck. Valerio
was not present, so they decided to wait for him. Appellant walked toward Aguilera and
Viorato. He yelled: " 'Hey, . . . you motherfuckers. You better leave from here because .
. . I don't want you guys right here. You guys better get out right now.' " Aguilera
replied that they were going to stay because they were waiting for the owner and
appellant did not have the authority to order them to leave. Appellant responded, " 'We'll
see.' "
          Appellant walked away, but a short time later drove his truck to where Aguilera
and Viorato were standing. Appellant stopped the truck and yelled in Spanish through
the open window, " 'Are you guys . . . gonna leave or not?' " Aguilera replied, " 'No
because Don Jose [i.e., Jose Valerio] told me to wait for him.' "
          Appellant opened the driver's door, got out, and "grabbed something from the back
of the truck." He walked toward Aguilera. When appellant was about two steps away, he
shot Aguilera in the abdomen with a shotgun. Before the shooting, Aguilera did not
threaten appellant and did not try to hit or grab him. There was no struggle. After the
shooting, Aguilera tried to grab the shotgun but was unable to do so. He fell down on his


                                                      2
back. Appellant walked to where Aguilera was lying, pointed the shotgun at his head,
and said, " 'I told you, motherfucker, to get out of my property.' "
       Appellant approached Viorata, pointed the shotgun at his head, and said: " 'You
too, motherfucker. I'm gonna kill you to, so you better leave.' " Viorata drove away in
his truck.
                                   Appellant's Testimony
       Appellant testified as follows: After the termination of their flower-growing
partnership, Aguilera told appellant "[t]hat he was gonna bring his cousins." Appellant
interpreted this statement to be a threat. Appellant's business was vandalized, and he
believed that Aguilera was responsible for the damage. A man with a knife approached
appellant but fled when appellant armed himself with a stake. Appellant believed that
Aguilera was involved in the knife incident because he "didn't have problems with
anyone, just with [Aguilera]." Aguilera frequently drove by Don Jose Nursery and yelled
profanities at appellant. During the night, Aguilera would come onto the nursery's
property and shake appellant's trailer while appellant was inside.
       On February 1, 2011, Aguilera and Viorata parked a truck on the nursery's
property. Appellant drove his truck to where they were parked, rolled his window down
halfway, and ordered them to leave. Aguilera and Viorata got out of their truck.
Aguilera "lift[ed] up his hands" and said to appellant, " 'Take me out of here if you can.' "
Aguilera walked to the driver's side of appellant's truck, tried to open the door, grabbed
appellant by his sweatshirt through the half-open window, and tried to pull him out of the
truck. Appellant "opened the door and pushed [Aguilera] off."
       Appellant did not see Aguilera or Viorata in possession of a weapon, but he was
concerned that they had one. He "thought that they were going to fuck [him] up right
there." Appellant grabbed a shotgun from under the front passenger's seat of his truck.
Appellant and Aguilera struggled over the shotgun. During the struggle, the shotgun
fired and Aguilera "just went down." "As soon as the firearm shot, [Viorata] got into his
truck" and drove away.


                                                  3
         Appellant did not point the gun at Aguilera and did not intend to shoot him. He
did not have his finger on the trigger. He was "stunned" and "shocked" when the shotgun
fired.
                                        Instructions
         The trial court gave CALCRIM No. 570 on the lesser included offense of heat of
passion voluntary manslaughter. Appellant contends that this instruction "contains
ambiguity which rendered it misleading and prejudicial." The instruction provided in
part: "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
reasoning and 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."
         Appellant argues that CALCRIM No. 570 is misleadingly ambiguous because "[i]t
can be read to require determination of whether the act of killing was reasonable. It is
also vague, in the sense that it does not positively require, or forbid, making the
determination [whether the act of killing was reasonable]." Thus, "the jury was allowed
to reject a voluntary manslaughter verdict by finding that appellant's conduct [i.e.,
shooting Aguilera] was unreasonable under the person of average disposition standard."
         In other words, appellant is arguing that CALCRIM No. 570 may have misled the
jury into believing "that adequate provocation for voluntary manslaughter requires a
finding that an ordinary person of average disposition would [be moved to] kill." (People
v. Beltran (2013) 56 Cal.4th 935, 949 (Beltran).) In Beltran our Supreme Court rejected
this standard of provocation: "The proper focus is placed on the defendant's state of mind,
not on his particular act. To be adequate, the provocation must be one that would cause
an emotion so intense that an ordinary person would simply react, without reflection. . . .
Framed another way, provocation is not evaluated by whether the average person

                                                 4
would act in a certain way: to kill. Instead, the question is whether the average person
would react in a certain way: with his reason and judgment obscured." (Ibid.; see also
People v. Najera (2006) 138 Cal.App.4th 212, 223 ["How the killer responded to the
provocation and the reasonableness of the response is not relevant to sudden quarrel or
heat of passion"].)
       CALCRIM No. 570 is not misleadingly ambiguous. Beltran held that, to reduce a
murder to voluntary manslaughter under a heat of passion theory, "[p]rovocation is
adequate only when it would render an ordinary person of average disposition 'liable to
act rashly or without due deliberation and reflection, and from this passion rather than
from judgment.' [Citation.]" (Beltran, supra, 56 Cal.4th at p. 957.) CALCRIM No. 570
incorporates this language almost verbatim: "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." The instruction does not "require a finding not only
that an ordinary person of average disposition would be liable to act rashly and without
reflection, but that such a person would act rashly in a particular manner, namely, by
killing." (Beltran, supra, 56 Cal.4th at p. 942.)
       Our Supreme Court concluded that the former version of CALCRIM No. 570
(2006 version) "properly set[s] out" the "relevant mental state" for heat of passion
voluntary manslaughter and is "not ambiguous as written." (Beltran, supra, 56 Cal.4th at
pp. 954, 956.) The former version included the following provision: " 'In deciding
whether the provocation was sufficient, consider whether a person of average disposition
would have been provoked and how such a person would react in the same situation
knowing the same facts.' " (Ibid.) The present version of CALCRIM No. 570 (2008
revision), which was used here by the trial court, "replace[s] this language with the
following: 'In deciding whether the provocation was sufficient, consider whether a person
of average disposition, in the same situation and knowing the same facts, would have
reacted from passion rather than from judgment.' [Citation.]" (Id., at p. 954, fn. 14,
italics added.) Since the former version of CALCRIM No. 570 is a correct statement of
the law and not ambiguous, it follows that the same is true as to the present version,

                                                    5
which closely conforms to the Beltran's court conclusion that "[t]he proper standard
focuses upon whether the person of average disposition would be induced to react from
passion and not from judgment." (Id., at p. 939, italics added.)
       In his reply brief, appellant asserts that Beltran "held" the former version of
CALCRIM No. 570 "to be error due to a latent ambiguity." He maintains that the present
version does not dispel this ambiguity. Appellant misconstrues Beltran, which found
nothing wrong with the instruction. Our Supreme Court noted that a "potential
ambiguity" was caused not by the instruction but by "the parties' closing arguments,"
which "muddied the waters." (Beltran, supra, 56 Cal.4th at pp. 954-955.) The
prosecutor and defense counsel propounded conflicting standards of provocation. "These
competing formulations by the advocates may have confused the jury's understanding of
the court's instructions." (Id., at p. 955.) "Although the former version of CALCRIM
No. 570 properly conveyed the [correct] test, the argument of counsel may have
introduced ambiguity." (Id., at p. 957.) During its deliberations, the jury in Beltran
wrote a note to the trial court requesting clarification. The court gave an appropriate
clarifying instruction; therefore, "it was not reasonably probable that any possible
ambiguity engendered by counsel's argument misled the jury." (Ibid.)
              Effective Assistance of Counsel: Failure to Request Instruction
       Appellant maintains that he was denied the effective assistance of counsel because
counsel failed to request "an instruction, in substance, that how a defendant 'responded to
the provocation and the reasonableness of the response is not relevant to . . . heat of
passion.' " The standard for evaluating a claim of ineffective counsel is set forth
in Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]:
"First, [appellant] must show that counsel's performance was deficient. . . . Second,
[appellant] must show that the deficient performance prejudiced the defense."
       To establish deficient performance, "the defendant must show that counsel's
representation fell below an objective standard of reasonableness." (Strickland v.
Washington, supra, 466 U.S. at p. 688.) Appellant has failed to show that his counsel's
representation fell below this standard. As explained in the previous part of this opinion,

                                                 6
CALCRIM No. 570 is a correct, unambiguous statement of the law. Thus, there was no
need for counsel to request supplemental clarifying instructions. "[C]ounsel need not
request unnecessary and duplicative instructions." (People v. Lucero (2000) 23 Cal.4th
692, 729.)
                      Effective Assistance of Counsel: Concession of
                        Inadmissibility of Misdemeanor Conviction
       Appellant argues that his counsel was ineffective because he conceded that
Viorata's misdemeanor conviction was irrelevant and inadmissible. The conviction was
for keeping or training a bird with the intent of using it in an exhibition of fighting
(cockfighting). (§ 597j, subd. (a).) Appellant contends that the conviction was
admissible to corroborate his testimony that Aguilera and Viorata "were engaged in [the]
violent, criminal enterprise" of cockfighting. (AOB 101, 102-103)~ Appellant asserts that
the conviction "would have given the defense law enforcement confirmation of Viorato's
past violence and hence of [Aguilera's] violence as his companion, which it otherwise
lacked."
       We need not consider whether counsel was deficient. Even if counsel's
performance fell below an objective standard of reasonableness, his deficient
performance did not prejudice appellant. To show prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome." (Strickland v.
Washington, supra, 466 U.S. at p. 694.)
       It is not reasonably probable that the result would have been different if Viorata's
misdemeanor conviction had been admitted. As appellant notes, Viorata's and Aguilera's
involvement in cockfighting was before the jury because of appellant's testimony to that
effect. The prior conviction concerned only Viorata, but he had nothing to do with the
shooting. According to appellant, the shotgun discharged during a struggle with
Aguilera, not Viorata. Moreover, appellant testified that the shotgun had accidentally
fired, not that he had intentionally fired it out of fear that Aguilera and Viorata were

                                                  7
particularly dangerous because of their involvement in cockfighting. Finally, another
witness - Antonio Valerio - corroborated Viorata's testimony that appellant's shooting of
Aguilera was intentional and unprovoked.
                                       Disposition
      The judgment is affirmed.
      NOT FOR PUBLICATON


                                                       YEGAN, J.


We concur:



             GILBERT, P.J.



             PERREN, J.




                                                8
                               Patricia M. Murphy, Judge
                           Superior Court County of Ventura
                         ______________________________




             Dan Mrotek, under appointment by the Court of Appeal. For Defendant and
Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr. , Supervising Deputy Attorney General, David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.




                                                  9
