Filed 10/5/15 P. v. Gallegos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065337
Plaintiff and Respondent,
v. (Super. Ct. No. SCS255820)
MIRANDA MAE GALLEGOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie
Sontag, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lisa S. Jacobson
and Tami F. Hennick, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Miranda Mae Gallegos (defendant) of the first degree murder of
Scott Humbert (Pen. Code, § 187, subd. (a); further undesignated statutory references are
to the Pen. Code) and found true the allegation that she used a dangerous or deadly
weapon, namely a knife, in the commission of the murder (§ 12022, subd. (b)(1)). In a
bifurcated proceeding following the verdict, defendant admitted the truth of a charged
prior prison conviction (§ 667.5, subd. (b)).
The trial court sentenced defendant to prison for 25 years to life for the murder,
plus one year each for the section 12022, subdivision (b)(1) enhancement and the
section 667.5, subdivision (b) enhancement, and imposed certain fines and fees.
Defendant timely appealed.
On appeal, defendant raises four issues: (1) whether the trial court erred in failing
to instruct sua sponte on involuntary manslaughter, as a lesser included offense of
murder, based on unconsciousness due to voluntary intoxication; (2) whether the trial
court erred in excluding a digital versatile disc (the DVD) containing recorded evidence
of defendant's emotional reaction upon being told of Humbert's death during a postarrest
interview; (3) whether trial counsel rendered constitutionally ineffective assistance by
failing to request an instruction that would have informed the jury of the effect of
provocation in reducing first degree murder to second degree; and (4) whether the
cumulative prejudicial effect of these errors deprived defendant of due process and a fair
trial. Because defendant did not meet her burden of establishing reversible error, we will
affirm the judgment.
2 I.
FACTUAL AND PROCEDURAL BACKGROUND
We review the record and recite the facts in a light most favorable to the judgment.
(People v. Hill (1998) 17 Cal.4th 800, 848-849.) There was never an issue as to the cause
of Humbert's death: around 7:45 p.m. on April 1, 2012, defendant stabbed Humbert with
a knife, and he died later that evening as a result of a single stab wound that passed
through two of his ribs and entirely through his heart.
A. Introduction
At the time of his death, Humbert was 25 years old, defendant was 35 years old,
and they had known each other for approximately three years. Throughout most of this
time, they had a romantic relationship living together, but they often would argue, break
up and get back together. There was evidence that, during their relationship, Humbert
and appellant loved each very much, and Humbert could act jealously with or without
cause. On a daily basis, they both received methadone and used illicit drugs (mostly
heroin and methamphetamine); defendant also had a prescription for the drug Klonopin,
an antianxiety medication.
Just days before his death, Humbert moved out of the room he had been sharing
with defendant at a house in La Mesa and moved in with his mother, Dorothy Ortiz-
Tello, who lived in a house on Paradise Drive in National City. Humbert had moved
back to his mother's house, because from his perspective the relationship with defendant
was over; consistently, defendant understood that Humbert had left her.
3 Ortiz-Tello lived with and took care of her aging mother (Humbert's grandmother),
who suffered from dementia. At the time Humbert moved into Ortiz-Tello's house in late
March 2012, one of Ortiz-Tello's brothers, Thomas Ortiz (Humbert's uncle), was staying
there; and Humbert and Ortiz shared a room off the kitchen. Marcos and Sara Rodriguez
lived immediately next door to Ortiz-Tello.
B. The Homicide
Immediately preceding their break-up, Humbert, defendant and Marlon San Juan
(a friend of Ortiz-Tello's boyfriend) were smoking methamphetamine in a room at the
house in La Mesa. Humbert and defendant began fighting, Humbert decided to move
back to Ortiz-Tello's, and San Juan drove him there.
A day or two later — during the late afternoon and early evening of April 1, 2012
— Ortiz-Tello's house was full: Ortiz-Tello was in the kitchen cooking dinner; Ortiz-
Tello's mother was in her room off to one side of the kitchen; Humbert and Ortiz were in
their living area off to another side of the kitchen, watching TV and talking; and Ortiz-
Tello's boyfriend was in a lower level of the house playing the guitar. Ortiz-Tello
answered two telephone calls from defendant, who asked to speak with Humbert.
Because Humbert had told Ortiz-Tello that he did not want to talk with defendant, in the
first call Ortiz-Tello told defendant that Humbert was not there. Defendant's response
indicated to Ortiz-Tello that defendant did not believe her. Defendant called back, telling
Ortiz-Tello that she (defendant) was coming to the house and "if something happens to
[Humbert], that's on him."
4 Ortiz-Tello, who was upset there might be trouble, told Humbert about the calls;
he told her not to worry, assuring her that he would handle the situation. Approximately
30-45 minutes later, defendant arrived at Ortiz-Tello's house. According to defendant, at
this point in time she had been up for days, doing heroin every six hours and smoking
methamphetamine at least every four hours — in addition to taking the prescribed
methadone and Klonopin.
Defendant knocked on the side door, which was on a small porch next to the
kitchen, outside of the room where Humbert and Ortiz were living. (The front door led
into a living room, which Ortiz-Tello and her mother used as their bedroom.) Ortiz-Tello
remained in the kitchen, while Humbert left the room he shared with his uncle, opened
the side door, stepped out onto the porch and closed the door behind him. Concerned
about Humbert's safety, Ortiz-Tello hurried to the door and put her ear to the crack to
listen. Ortiz-Tello heard defendant say to Humbert, "He raped me, and you're not going
to do anything about it? I could kill you right now, you know."
The doorknob then wiggled, startling Ortiz-Tello and causing her to retreat toward
the kitchen so as not to be caught eavesdropping. Humbert entered, closing the door
behind him with one hand and holding his chest over his heart with the other hand. In
response to Ortiz-Tello's inquiry to Humbert whether he was all right, without saying
anything Humbert lifted his hand off his chest, looked at his hand as a stream of blood
spurted out of his chest, and quickly replaced his hand on his chest.
Shock and panic followed. Ortiz-Tello screamed loudly, "she stabbed him, she
stabbed him," and yelled to Ortiz for help. All of this unnerved Ortiz-Tello's elderly
5 mother in the next room, and she began to cry. While Ortiz-Tello was attempting to calm
her mother, Ortiz called 911 at 7:48 p.m. Humbert then made his way through the
kitchen into Ortiz-Tello's bedroom and out the front door, saying "I got to go" — which
Ortiz-Tello understood to mean to go "to the hospital."
Once Humbert came outside, defendant marched up the driveway (from the street
to the house) toward him, taking big steps and swinging her arms. Defendant was upset,
and when she reached Humbert, defendant began yelling directly into his ear and
gesturing wildly. Humbert, while still holding his hand over his chest, tried to get away
from defendant by turning his back on her and heading toward the house. As Humbert
entered the house, Ortiz-Tello followed him in, slamming and locking the iron screen
door so as to keep defendant outside. At this point, defendant and Ortiz-Tello exchanged
insults, each calling the other various names and using extremely profane language.
According to defendant, because she did not want to hear Ortiz-Tello's hysteria, she
turned and left, going down the driveway to the street and walking north on Paradise
Drive.
Defendant testified that when she left Ortiz-Tello's residence, she (defendant) did
not know she had hurt Humbert, despite the facts that: Humbert had asked her "Why did
you stab me?" before he returned to the house for the first time; Ortiz-Tello had accused
her of stabbing Humbert through the locked screen door during the profanity-laced
exchange immediately before defendant left; and there was a trail of blood on the ground
where Humbert and defendant had just been talking in the driveway.
6 Once defendant left, Humbert again went outside to the driveway, soon receiving
assistance from Ortiz and Ortiz-Tello's boyfriend. Ortiz was helping Humbert stand
upright, and the boyfriend had gotten a towel and was compressing it on the wound.
Humbert meanwhile was dragging himself to the next door neighbors' (the Rodriguezes')
front door, which was just steps away from the driveway. Humbert pounded on the door,
and by the time Mr. Rodriguez answered, Humbert collapsed. Mr. Rodriguez took over,
physically carrying Humbert, as Ms. Rodriguez drove their car down the driveway so that
Mr. Rodriguez could place Humbert across the back seat in order to transport him to a
hospital. By the time they reached the street, police officers had responded to the 911
call, and the officers ordered the Rodriguezes to pull over and wait for the paramedics
who arrived a minute later.
Humbert died at the hospital at 9:18 p.m. on April 1, 2012. The cause of death
was a single stab wound on the left side of his chest, which was indicated by a track from
an instrument, "possibly a knife," that had passed through a space between two ribs and
entirely through his heart.
In the meantime, as soon as defendant left Ortiz-Tello's house, she called a friend
for a ride, telling him that she thought she might have stabbed someone. She then walked
behind the house and a bridge, where she ditched the knife she had been carrying. From
there, defendant walked to a market and bought cigarettes at 7:56 p.m. — which was less
than 10 minutes after Ortiz had called 911. Defendant made another call for a ride, this
time to San Juan. As she wandered around the streets waiting for San Juan, defendant ran
into an acquaintance (from a prior incarceration), Stacey Bancroft. Bancroft explained
7 that she needed a ride,1 and defendant explained that she needed a place to stay; and they
agreed that after defendant helped Bancroft get to where she was going, defendant could
stay with Bancroft in her hotel room. Waiting for San Juan to pick them up, defendant
went to a liquor store and bought a beer. Eventually, San Juan got them, took them to
where Bancroft wanted to go and then drove them both to Bancroft's hotel room, where
they all smoked methamphetamine. San Juan left the women in the hotel room,
whereupon Bancroft also left, and defendant remained behind making telephone calls.
Bancroft was not gone very long, but by the time she returned, police were at the hotel;
shortly thereafter, the police knocked on the door of the room where the two women were
staying, and Bancroft opened the door.
The police arrested defendant, advising her that she was under arrest for murder.
A later toxicology report revealed that approximately eight hours after the stabbing,
defendant had in her system amphetamines (methamphetamine and amphetamine),
opiates (morphine and codeine)2 and benzodiazepines (Xanax, Klonopin and 7-amino
Clonazepam).3
1 At the time, Bancroft was a prostitute, and she needed a ride to meet a client.
2 The People's forensic toxicologist testified that the amounts of morphine and codeine found in defendant's system indicated use of heroin that had metabolized.
3 A toxicology report revealed that at the time Humbert was brought to the hospital, he had heroin and methamphetamine in his system.
8 C. The Trial
The case proceeded to trial over the course of nine days in January 2014. The
parties called over 20 witnesses and introduced nearly 100 exhibits into evidence.
We described the principal facts of the People's case immediately above. The
defense theory was that defendant stabbed Humbert by accident. Defendant testified that
at the time of the incident, she was "very intoxicated," did not remember stabbing
Humbert and never intended to hurt him.
According to defendant, she went to Ortiz-Tello's house on April 1, 2012, to work
things out with Humbert to the point where, even if they remained broken up, they still
would be friends. As they talked near the side door, Humbert began raising his voice
when he found out that San Juan had just driven defendant to Ortiz-Tello's for this
confrontation. Defendant then saw that Humbert had a knife in his hand, as he looked up
the street for San Juan. Concerned, defendant pulled out a knife that she was carrying in
her purse. According to defendant, as Humbert then came toward her, she felt like she
was going to trip over a bump in the cement as she was backing up. At that point,
"everything . . . happened really fast" — with defendant thinking that she may have
pushed Humbert. At the time, defendant did not understand why Humbert had asked her
why she stabbed him, because she did not understand that he had been hurt. Humbert
then told defendant that he loved her and to "hold on," as he turned and went back into
the house through the side door. Even when he returned to the driveway moments later
(after he had been inside the house, where he spurted blood when he lifted his hand off
his chest), he appeared normal to defendant.
9 The jury was instructed on four potential verdicts: first degree murder, second
degree murder, voluntary manslaughter (heat of passion) and involuntary manslaughter
(lawful act in an unlawful manner with criminal negligence).
The jury found defendant guilty of first degree murder and found true the
allegation that she used a dangerous or deadly weapon, a knife, in the commission of the
murder.4
II.
DISCUSSION
On appeal, defendant raises three independent issues and a fourth argument that
the cumulative prejudicial effect of those errors deprived her of due process and a fair
trial. None suggests a basis on which to reverse the judgment.
A. Jury Instruction
Defendant argues that the trial court erred in failing to instruct sua sponte on
involuntary manslaughter, as a lesser included offense of murder, based on
unconsciousness due to voluntary intoxication. Defendant contends that, because this
theory was supported by substantial evidence, the court was required to instruct with
CALCRIM No. 626 (or a substantially similar instruction).
4 The clerk's minutes indicate the result of the polling of the jurors was "10 YES 0 NO." However, the reporter's transcript confirms that all 12 jurors answered "Yes" to the question "Was this and is this your verdict?" and that the clerk "record[ed] 12 affirmative responses." Because no party raises any issue and because there is nothing to indicate the reporter's transcript may be inaccurate, "we presume the court reporter accurately reported the proceedings." (People v. Anzalone (2013) 56 Cal.4th 545, 552, fn. 6.) 10 CALCRIM No. 626 is entitled "Voluntary Intoxication Causing Unconsciousness:
Effects on Homicide Crimes (Pen. Code, § 29.4[5])" and provides in full:
"Voluntary intoxication may cause a person to be unconscious of his or her actions. A very intoxicated person may still be capable of physical movement but may not be aware of his or her actions or the nature of those actions.
"A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.
"When a person voluntarily causes his or her own intoxication to the point of unconsciousness, the person assumes the risk that while unconscious he or she will commit acts inherently dangerous to human life. If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter.
"Involuntary manslaughter has been proved if you find beyond a reasonable doubt that:
"1. The defendant killed without legal justification or excuse;
"2. The defendant did not act with the intent to kill;
"3. The defendant did not act with a conscious disregard for human life;
5 "(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. "(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought. "(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance." (Pen. Code, § 29.4.)
11 "AND
"4. As a result of voluntary intoxication, the defendant was not conscious of (his/her) actions or the nature of those actions.
"The People have the burden of proving beyond a reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] voluntary manslaughter)."
1. Law
Involuntary manslaughter is "the unlawful killing of a human being without
malice" "in the commission of an unlawful act, not amounting to a felony; or in the
commission of a lawful act which might produce death, in an unlawful manner, or
without due caution and circumspection." (§ 192, subd. (b).) Our high court has
described involuntary manslaughter as "criminally negligent unlawful homicide."
(People v. Ochoa (1998) 19 Cal.4th 353, 423 (Ochoa).) Involuntary manslaughter is a
lesser included offense of murder. (People v. Thomas (2012) 53 Cal.4th 771, 813.)
Because "every" lesser included offense that is supported by substantial evidence
"must" be presented to the jury, a trial court must "instruct, sua sponte, on all theories of a
lesser included offense which find substantial support in the evidence." (People v.
Breverman (1998) 19 Cal.4th 142, 155, 162 (Breverman).) In this context, substantial
evidence means " ' "evidence from which a jury composed of reasonable [persons] could
. . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Id. at
p. 162.) In determining the substantiality of evidence, a trial court is to consider only the
"legal sufficiency" of the evidence, not its weight or the credibility of the witnesses who
presented the evidence. (Id. at p. 177.)
12 Thus, as applicable here, a person who is charged with murder is entitled to a sua
sponte instruction on involuntary manslaughter "when there is evidence deserving of
consideration that the defendant was unconscious due to voluntary intoxication."6
(Halvorsen, supra, 42 Cal.4th at p. 418.) Under this standard: voluntary intoxication is
"the voluntary ingestion, injection, or taking by any other means of any intoxicating
liquor, drug, or other substance" (§ 29.4, subd.(c)); and an unconscious act " 'is one
committed by a person who because of [voluntary intoxication] is not conscious of acting
and whose act therefore cannot be deemed volitional' " (People v. Ferguson (2011) 194
Cal.App.4th 1070, 1083 (Ferguson)). In this latter regard, unconsciousness "need not
mean that the actor lies still and unresponsive[;] . . . unconsciousness ' "can exist . . .
where the subject physically acts in fact but is not, at the time, conscious of acting." ' "
(Ochoa, supra, 19 Cal.4th at pp. 423-424.)
We do not take into consideration the trial court's inquiry and defense counsel's
response that she was not arguing for an involuntary manslaughter instruction. Whenever
substantial evidence supports an involuntary manslaughter finding based on
unconsciousness due to voluntary intoxication, the trial court is required sua sponte to
6 Where, in contrast, the unconsciousness results from other than voluntary intoxication, the unconsciousness is a complete defense to the charged crime. (§ 26, class Four; People v. Halvorsen (2007) 42 Cal.4th 379, 417 (Halvorsen).) The difference is that, if the unconsciousness results from intoxication voluntarily induced, " 'the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication.' " (Ochoa, supra, 19 Cal.4th at p. 423.)
13 instruct the jury accordingly, regardless of the wishes of defense counsel. (Halvorsen,
supra, 42 Cal.4th at p. 418; Breverman, supra, 19 Cal.4th at pp. 158, 162.)
We review de novo whether a jury instruction on the lesser included offense of
involuntary manslaughter should have been given (People v. Waidla (2000) 22 Cal.4th
690, 733; People v. Turk (2008) 164 Cal.App.4th 1361, 1367), viewing the evidence in a
light most favorable to defendant (People v. Millbrook (2014) 222 Cal.App.4th 1122,
1137 (Millbrook)).
2. Analysis
The record contains substantial evidence that defendant was voluntarily
intoxicated for purposes of section 29.4, subdivision (c). At the time of the stabbing,
defendant had been up for days, doing heroin every six hours, smoking
methamphetamine at least every four hours and taking the prescribed methadone and
Klonopin.
The only issue, therefore, is whether the record contains substantial evidence that
defendant was unconscious. Ochoa is instructive in this regard.
In Ochoa, in addition to other crimes committed against other victims, Ochoa was
charged with and convicted of the kidnap, rape and murder of Lacy Chandler. (Ochoa,
supra, 19 Cal.4th at pp. 380-381.) At trial, the evidence supported Ochoa's argument that
his consumption of "an unprecedented quantity of cocaine on the night of the murder
caused him to lose his faculties." (Id. at p. 391.) In particular, on appeal Ochoa relied on
a portion of his taped confession played for the jury, in which he stated: " 'I don't know
what was going through my mind, I was so high.' " (Id. at p. 422.) Given this evidence,
14 Ochoa argued that the trial court erred by not sua sponte instructing the jury on
involuntary manslaughter based on voluntary intoxication causing unconsciousness.
(Ibid.)
The Supreme Court disagreed, focusing on Ochoa's actions immediately preceding
the homicide. When Ochoa first approached Chandler, he "had the presence of mind" to
tell her to be quiet, to display a knife and to take her to a secluded area. (Ochoa, supra,
19 Cal.4th at p. 424.) He asked her to remove her clothes, and when she later asked
whether she could put them back on, he gave permission. (Ibid.) This, the court ruled,
"show[ed] a methodical, calculated approach to the crimes." (Ibid.) Reflecting on the
potential consequences of allowing Chandler to live, Ochoa then killed her —
establishing malice aforethought, according to the court. (Ibid.) Ochoa was not entitled
to an involuntary manslaughter instruction, because Ochoa's statement that he did not
know what was going through his mind was "insufficient to permit a jury composed of
reasonable individuals to find that he committed involuntary manslaughter." (Ibid.) At
best, Ochoa's intoxication "clouded his judgment and caused him to make foolish
choices"; it did not result in a lack of malice. (Ibid.)
Likewise, here too, while defendant's intoxication likely clouded her judgment and
caused her to make foolish choices, the intoxication did not render defendant unconscious
when she stabbed Humbert. (Ochoa, supra, 19 Cal.4th at p. 424; Ferguson, supra, 194
Cal.App.4th at p. 1083.) According to defendant, she was angry and upset when
Humbert left her; and very early on April 1, 2012 (the date of the stabbing), she had
texted her landlord that she felt like stabbing "the next dude who seems like he's fucking
15 with me."7 That evening, defendant called Ortiz-Tello's house a number of times, and
when she was not able to speak with Humbert, within less than an hour, she arranged for
a ride to and arrived at the house in National City. According to defendant, her specific
intent was to work things out, and hopefully remain friends, with Humbert once she got
there. After Humbert came out to talk with her, defendant recalled explaining to him
some of what she had done earlier in the day — specifically that she had gone to get
money from one person and had used it to pay back another person — after which
defendant and Humbert argued a bit about money. Defendant also remembered that what
had been a normal conversation turned loud once Humbert found out that it was San Juan
who had given her a ride to the house; indeed, she also remembered that, in reacting to
this information, Humbert began looking up the street for San Juan. At this point,
defendant testified, she saw a knife in Humbert's hand as he was asking about and
looking up the street for San Juan — to which she responded by pulling out a knife that
she was carrying in her purse. As Humbert then approached defendant with a knife in his
hand, she recalled moving backward and feeling like she was going to go over a bump in
the cement in the driveway. Of note, just seconds prior to the stabbing, defendant was
able to recollect her exact thoughts: is Humbert mad at San Juan? is Humbert mad at
her? and, why? Defendant then testified that she was "confused"; that "everything . . .
7 Viewing this evidence in a light most favorable to defendant — as we must (Millbrook, supra, 222 Cal.App.4th at p. 1137) — we accept defendant's testimony that, when she wrote those words, she did not intend them for Humbert. We nonetheless consider the statement as evidence of defendant's state of mind regarding the break-up and her propensity for the type of violence that occurred later the same day.
16 happened really fast"; that she "just reacted"; that "[t]here was no thought process" to
harm Humbert; that "[i]t just happened and everything stopped"; and that she may have
"pushed him or something." This is the only time at which defendant's memory failed
her.
Significantly, despite her alleged unconsciousness at the time of the stabbing,
defendant also was able to remember exactly what Humbert said and did immediately
after the stabbing: he asked her why she stabbed him; he told her he loved her; she told
him she loved him; and he told her to "hold on" as he turned around and went into the
house. After Humbert went back inside, defendant also recalled walking up the street,
calling a friend for a ride (and telling him that she thought she might have stabbed
someone), going behind the house and a bridge, ditching the knife, walking to a market
and buying cigarettes — all of this within 10 minutes of the stabbing.
Because a "[d]efendant's professed inability to recall the event, without more, [i]s
insufficient to warrant an unconsciousness instruction . . ." (People v. Rogers (2006) 39
Cal.4th 826, 888 (Rogers)), we are not persuaded by defendant's argument. "The
complicated and purposive nature of h[er] conduct" both before and after the stabbing
"makes clear that [s]he did not lack awareness of h[er] actions during the course of the
offense." (Halvorsen, supra, 42 Cal.4th at p. 418; see People v. Heffington (1973) 32
Cal.App.3d 1, 10 [no "ineluctable rule" that a defendant's inability to remember supplies
an evidentiary foundation for an unconsciousness instruction].)
Nor are we persuaded by the authorities on which defendant relies, People v.
Bridgehouse (1956) 47 Cal.2d 406 and People v. Wilson (1967) 66 Cal.2d 749. Although
17 in both cases the defendants did not recall shooting the victims (Bridgehouse, at pp. 410-
411, 412; Wilson, at p. 755), both cases are distinguishable. In Bridgehouse, the
defendant had a "very vague memory" of the victim rising from the couch prior to the
shooting and his recollection of speaking with the victim just before the shooting was
"very hazy"; the defendant did not remember taking out the gun or what he did with the
gun after the shooting. (Bridgehouse, at pp. 410, 412.) In Wilson, the defendant did not
recall what happened during the multiple shootings, did not remember shooting the gun
in one of the rooms (and did not know at the time whether anyone was even in the room),
and did not know where or when he was arrested shortly after the shootings. (Wilson, at
pp. 755-756.) In contrast, here defendant testified in detail as to the events immediately
preceding and immediately following the stabbing — including where her knife was at all
times, except as it entered and exited Humbert's chest.
For these reasons, because the record does not contain substantial evidence that
defendant was unconscious when she stabbed Humbert, the trial court did not err in
failing to instruct the jury on voluntary intoxication causing unconsciousness.
In any event, even if we assume that the jury should have been instructed on the
lesser included offense (involuntary manslaughter based on voluntary intoxication
causing unconsciousness), we may reverse a judgment only if the error "resulted in a
miscarriage of justice." (Cal. Const., art. VI, § 13; see Code Civ. Proc., § 475.) We
apply the standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson) to
determine whether the failure to instruct on the lesser included offense resulted in a
18 miscarriage of justice requiring reversal.8 (Id. at pp. 832, 836.) Under this standard,
such error is reversible only when there is a reasonable probability that the appellant
would have received a more favorable result had the instruction been given. (Id. at
p. 836.) For purposes of this analysis, a "reasonable probability" is one sufficient to
undermine the confidence in the conviction. (Strickland v. Washington (1984) 466 U.S.
668, 694 (Strickland).) "Such posttrial review focuses not on what a reasonable jury
could do, but what such a jury is likely to have done in the absence of the error under
consideration." (Breverman, supra, 19 Cal.4th at p. 177.) We may consider the relative
strength of the evidence in support of the judgment compared to the relative weakness of
the evidence in support of a different outcome. (Ibid.) The appellant bears the burden of
establishing prejudice. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)
8 Defendant argues that the (assumed) error is of federal constitutional dimension, requiring a reversal unless we find beyond a reasonable doubt that the error was harmless under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). In part, defendant bases his constitutional argument on the suggestion that, where intoxication has been established, "absence-of-unconsciousness" is "an essential element of . . . of the charged murder offense." We disagree. "[C]onsciousness is not an element of the offense of murder (nor of any offense)." (People v. Babbitt (1988) 45 Cal.3d 660, 693; accord, People v. Mathson (2012) 210 Cal.App.4th 1297, 1321-1322.) Rather, "[u]nconsciousness is a defense." (Babbitt, at p. 693; accord, Mathson, at p.1321.) In any event, our Supreme Court has rejected numerous times the suggestion that failure to instruct sua sponte on a lesser included offense requires a harmless error analysis under Chapman. Quoting from Breverman, supra, 19 Cal.4th at pages 169, 178, the court recently explained: Because " 'the rule requiring sua sponte instructions on all lesser necessarily included offenses supported by the evidence derives exclusively from California law[,]' . . . 'in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [Watson].' " (People v. Beltran (2013) 56 Cal.4th 935, 955, italics added, citations omitted.)
19 In the present appeal, the alleged instructional error is harmless. Here, just as in
People v. Koontz (2002) 27 Cal.4th 1041, "the jury necessarily decide[d] the factual
questions posed by the omitted instruction[] adversely to defendant under other properly
given instructions." (Id. at p. 1086.) " 'In such cases the issue should not be deemed to
have been removed from the jury's consideration since it has been resolved in another
context, and there can be no prejudice to the defendant since the evidence that would
support a finding that only the lesser offense was committed has been rejected by the
jury.' " (People v. Wright (2006) 40 Cal.4th 81, 98.) The court instructed the jury on first
or second degree murder with malice aforethought (CALCRIM No. 520); deliberation
and premeditation for first degree murder (CALCRIM No. 521); voluntary manslaughter,
heat of passion (CALCRIM No. 570); voluntary manslaughter, imperfect self-defense
(CALCRIM No. 571); involuntary manslaughter, lawful act in an unlawful manner with
criminal negligence (CALCRIM No. 580); and, significantly, effects of voluntary
intoxication on homicide crimes (CALCRIM No. 625).
Thus, as relevant to our consideration of what the jury "is likely to have done" had
it been instructed under CALCRIM No. 626 (Breverman, supra, 19 Cal.4th at p. 177), the
jury was instructed in part as follows with regard to murder:
"The defendant is charged in count 1 with murder in violation of Penal Code section 187. To prove that the defendant is guilty of this crime, the People must prove that . . . when the defendant acted, she had a state of mind called malice aforethought . . . . 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 . . . she intentionally committed an act . . . the
20 natural and probable consequences of . . . were dangerous to human life. (Italics added; see CALCRIM No. 520.)
"The defendant is guilty of first degree murder if the People have proved that she acted willfully, deliberately, and with premeditation. The defendant acted willfully if she intended to kill. . . ." (Italics added; see CALCRIM No. 521.)
The jury was also instructed that it could consider evidence of defendant's voluntary
intoxication "in deciding whether the defendant acted with an intent to kill or the
defendant acted with deliberation and premeditation." (Italics added; see CALCRIM
No. 625.)
Absent a showing to the contrary, we presume the jury followed the instructions
given. (People v. Harris (2013) 57 Cal.4th 804, 857.)
Having convicted defendant of murder, therefore, the jury necessarily decided:
(1) when she acted, she had malice aforethought — either she "intended to kill" Humbert
(express malice) or she "intentionally committed an act" the natural consequences of
were dangerous to human life (implied malice) (see CALCRIM No. 520); and
(2) defendant's voluntary intoxication did not affect "whether the defendant acted with an
intent to kill" (see CALCRIM No. 625). Likewise, having convicted defendant of murder
in the first degree, the jury necessarily decided: (1) defendant "acted willfully,
deliberately, and with premeditation" — with willfulness defined as an "inten[t] to kill"
(see CALCRIM No. 521); and (2) defendant's voluntary intoxication did not affect
"whether the defendant acted with an intent to kill or . . . with deliberation and
premeditation" (see CALCRIM No. 625).
21 Given these findings as to first degree murder, we are satisfied that, had the jury
been instructed under CALCRIM No. 626, the jury is not likely to have found that
defendant's voluntary intoxication caused unconsciousness. Even without an instruction
on unconsciousness, defendant "was permitted to use the same underlying facts to
mitigate the crime. Thus, in finding defendant guilty of murdering [Humbert], the jury
necessarily rejected defendant's [intoxication causing unconsciousness] defense."
(People v. Maury (2003) 30 Cal.4th 342, 422; see Rogers, supra, 39 Cal.4th at p. 884
[because "[t]he jury rejected the lesser options and found defendant guilty of first degree
premeditated murder . . . , there is no reasonable probability that, had the jury been
instructed on involuntary manslaughter, it would have chosen that option"].)
B. The DVD
Defendant argues that the trial court erred in excluding the DVD.9 At trial,
although the court did not view the DVD, defendant's counsel described it as "a video of
[defendant] after she's arrested by the police when she is informed by Detective Villariasa
that [Humbert]'s dead." Defendant's attorney explained that she was offering this
evidence of defendant's reaction to the news of Humbert's death to show the homicide
9 At defendant's request, we have viewed the DVD, trial exhibit 129. There is no identifying information on the recording. It is 43 minutes long and appears from context to have commenced at approximately 2:45 a.m. on April 2, 2012 (approximately seven hours after the stabbing). At approximately 2:53 a.m., after advising defendant of her rights under Miranda v. Arizona (1966) 384 U.S. 436, an unidentified male voice tells defendant that Humbert is dead — after which defendant's reactions can be seen and heard. These reactions include rocking and crying and other emotions with little, if any, verbal communications other than "Oh my God," "no way," "why, why," "no, no," "please, please," et cetera.
22 was neither premeditated nor deliberate. The district attorney objected on the grounds
that such evidence was irrelevant, cumulative and prejudicial. (See Evid. Code, §§ 210,
350-352.)
Overruling the objections on those grounds, the court sua sponte sustained a
hearsay objection, just as the district attorney indicated he was getting there. The court
reasoned that, because defendant's reaction was a statement, it was hearsay,10 and that
although such evidence might be admissible if offered by the People (presumably as an
exception to the hearsay rule as a statement against a party (Evid. Code, § 1220)), it was
inadmissible when offered by defendant in support of her case.
The hearsay rule precludes the admission into evidence of "a statement that was
made other than by a witness while testifying at the hearing and that is offered to prove
the truth of the matter stated." (Evid. Code, § 1200, italics added.) In this context, a
" '[s]tatement' " is either an "oral or written verbal expression" or "nonverbal conduct of a
person intended by him as a substitute for oral or written verbal expression." (Id., § 225.)
Where, as argued by defendant, the evidence is "nonverbal, nonassertive, emotional
behavior," it is not a substitute for oral or written verbal expression and, thus, is "not
subject to the hearsay rule." (People v. Rogers (2009) 46 Cal.4th 1136, 1162; see People
v. Jurado (2006) 38 Cal.4th 72, 129 [because emotional displays were "nonassertive
10 We understand the court's comment to mean that defendant's reaction was an out- of-court statement being offered for the truth of the matter asserted for purposes of the hearsay rule, Evidence Code section 1200.
23 conduct," they were not hearsay]; People v. Snow (1987) 44 Cal.3d 216, 227 [after news
of a death, silence and lack of emotion were "nonassertive responses or reactions" and
thus not hearsay].)
We review for an abuse of discretion the trial court's determination to exclude
evidence based on the hearsay rule. (People v. Pirwani (2004) 119 Cal.App.4th 770,
787.) Under this standard, the trial court's ruling will not be disturbed in the absence of a
showing by defendant that the court exercised its discretion "in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest miscarriage of justice." (People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We will assume without deciding that the trial court erred in ruling that the DVD
contained hearsay.11 For the reasons we explained in part II.A.2., ante, however, we will
not reverse the judgment unless defendant meets her burden of establishing a reasonable
11 Relying on the principle that an appellate court should not reverse a correct legal ruling merely because the trial court gave an incorrect reason (citing People v. Zapien (1993) 4 Cal.4th 929, 976), the People argue that the DVD was properly excluded on the grounds that the evidence was irrelevant, cumulative and prejudicial. The problem with this argument is that the trial court overruled these objections, and the People do not attempt to establish that the rulings were erroneous — i.e., that they were an abuse of the trial court's discretion. (Code Civ. Proc., § 906 [appellate courts can review potential error on respondent's request for purpose of determining whether appellant suffered prejudice]; Citizens for Uniform Laws v. County of Contra Costa (1991) 233 Cal.App.3d 1468, 1472 [respondent may assert trial court error where, if established, the result is an affirmance].) By this argument, the People are asking that we rule as a matter of law that the DVD was irrelevant, cumulative and prejudicial — which we decline to do.
24 probability that she would have received a more favorable result had the evidence been
admitted. (Watson, supra, 46 Cal.2d at p. 836.)
Initially, we disagree with defendant's characterization that the prosecution's case
"was anything but a strong one." The People presented a solid case, as we set forth at
part I.B., ante.
In attempting to establish prejudice, defendant argues that her emotional reaction
on the DVD "would have constituted objective corroborating evidence supporting [her]
testimony to the effect that she did not expect Humbert to die until she was told he was
dead." (Italics added.) This argument is not supported by the record. The DVD shows
defendant's emotions at almost 3:00 a.m. (See fn. 10, ante.) However, as defendant
affirmatively acknowledges in her opening brief, she testified at trial that she was first
told that Humbert died when the police detective arrested her for murder in Bancroft's
hotel room, many hours before the events recorded on the DVD:
"A: . . . I think it was the detective right there, he tells me, you're under arrest.
"And I tell him, for what.
"And he tells me, for murder.
"And I just couldn't believe it, [Humbert] was dead.
"Q: He told you that in the hotel room?
"A: Uh-huh.
"Q: And what did you think?
"A: I just — I was floored. Like I just couldn't believe it." (Italics added.)
25 The fact that defendant's emotions were recorded hours later on the DVD when she was
again told of Humbert's death at best evidences that, at the time, defendant did not recall
what she was told and understood hours earlier.
Defendant further suggests that she was entitled to show the jury her emotional
reaction, because without it the circumstantial evidence supporting the defense theory
(that the stabbing was unintentional and accidental) "was in equipoise" with the
prosecution's theory (that the stabbing was intentional and deliberate). By focusing on
the circumstantial evidence of what happened in the driveway at the time defendant
stabbed Humbert, however, defendant fails to recognize and acknowledge the direct
evidence of the intentional and deliberate nature of the attack: Earlier in the day of the
incident, defendant texted her landlord that she felt like stabbing "the next dude who
seems like he's fucking with me"; less than an hour before defendant stabbed Humbert,
she told Ortiz-Tello that she (defendant) was coming to see Humbert and "if something
happens to [Humbert], that's on him"; just prior to the stabbing, when she and Humbert
were arguing in the driveway at Ortiz-Tello's house and he told her that he was not
getting back together with her, defendant said she "just couldn't take it anymore"; and
immediately before Humbert reentered the house with his hand pressed to his chest and
blood spurting out, defendant said to Humbert, "I could kill you right now, you know."
The fact that, at trial, defendant denied or may not have recalled making those statements
is irrelevant to our determination whether the record contains substantial evidence in
support of the judgment.
26 Finally, defendant contends that the DVD would have validated and corroborated
her testimony that she was "heavily intoxicated and under the influence of controlled
substances." First, the evidence of defendant's intoxication was overwhelming and
undisputed: At the point in time when defendant arrived at Ortiz-Tello's house,
defendant had been up for days, doing heroin every six hours and smoking
methamphetamine at least every four hours, in addition to taking the prescribed
methadone and Klonopin; and defendant had ingested even more drugs during the hours
after the stabbing and before her arrest. Moreover, there was nothing on the DVD that
would have told the jury that defendant's behavior was due to drug use; to the contrary,
on the DVD there is the suggestion that defendant's behavior was due to having just been
awakened in order to answer questions.
For the foregoing reasons, defendant did not meet her burden of establishing a
reasonable probability that she would have received a more favorable result had the DVD
been admitted into evidence. Accordingly, any error potentially associated with ruling
that the DVD was hearsay is harmless.
C. Effectiveness of Counsel
Defendant argues that her trial counsel rendered constitutionally ineffective
assistance by failing to request CALCRIM No. 522 (or a comparable instruction) which
would have told the jury of the potential effect of provocation in reducing first degree
murder to second degree. CALCRIM No. 522 is entitled "Provocation: Effect on Degree
of Murder" and provides in full:
27 "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide.
"If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]
"[Provocation does not apply to a prosecution under a theory of felony murder.]"
During a conference on jury instructions, the court asked "What about [CALCRIM
No.] 522" (without more), commented that it did not have a sua sponte obligation to give
the instruction12 and looked to defense counsel for her input. The entirety of counsel's
response was: "I mean, it is interesting. It is a [sic] restating another theory of lack of
deliberation. I would ask that 522 be given. I don't know. I don't think it applies. I don't
think 522 applies." The court agreed, and the discussion turned to the next instruction.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to competent representation by trial counsel. (Strickland, supra, 466
U.S. at pp. 689, 690; People v. Holt (1997) 15 Cal.4th 619, 703.)
In reviewing a claim of ineffective assistance of counsel, we must consider both
"whether counsel's representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
12 This is a pinpoint instruction, to be given on request; the court has no sua sponte duty to instruct the jury on this issue. (Rogers, supra, 39 Cal.4th at pp. 878-879 [CALJIC No. 8.73].)
28 reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome." (People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter); see Strickland,
supra, 466 U.S. at p. 694.) The burden of proving both of these issues is on the appellant.
(People v. Pope (1979) 23 Cal.3d 412, 425.)
Finally, if the appellate record does not disclose why defense counsel acted as she
did, "an appellate claim of ineffective assistance of counsel must be rejected unless
counsel was asked for an explanation and failed to provide one, or there simply could be
no satisfactory explanation." (Carter, supra, 30 Cal.4th at p. 1211.) Under such
circumstances, an aggrieved appellant may present her claim in a petition for writ of
habeas corpus. (Ibid.)
Here, counsel was not asked why she was not requesting the provocation
instruction. Her statement that she "d[oes]n't think it applies" is ambiguous at best,
especially given her immediately preceding statements — first, that she wanted the
instruction given and, second, that she did not know. Thus, we look to the record to
determine whether there is any satisfactory explanation for the decision; if so, then we
cannot conclude on direct appeal that counsel was ineffective. (Carter, supra, 30 Cal.4th
at p. 1211.)
Defendant argues that because there was substantial evidence of provocation, there
could be no explanation for failing to request an instruction that might result in a
conviction for second degree, rather than first degree, murder. Defendant fairly
summarizes the evidence supporting provocation, including defendant's request that the
29 court instruct the jury on provocation in the context of the voluntary manslaughter heat of
passion instruction (see CALCRIM No. 570), but that is not the end of the inquiry. As
the People persuasively counter, based on defense counsel's closing argument defendant's
principal defense was that the stabbing was an accident — a reasonable conclusion if the
jury believed defendant's testimony and found reasonable her explanation that she and
Humbert were arguing, that Humbert was holding a knife and approaching her, that she
was backing up with a knife in her hand and that she merely pushed him. Defendant's
counsel emphasized defendant's version of the events in the context of the People's
burden (for purposes of establishing first degree murder) of proving beyond a reasonable
doubt that defendant went to Ortiz-Tello's house with the specific intent to kill Humbert.
Given this closing argument, we can see a possible tactic in counsel's decision not
to request the pinpoint instruction. Had the jury agreed that defendant's explanation was
reasonable and the stabbing was accidental, counsel could have argued for a complete
acquittal. In contrast, had the jury been instructed and returned its verdict under
CALCRIM No. 522 (or a comparable provocation instruction), the best counsel could
have argued for was second degree murder. Here, the evidence of provocation —
namely, that Humbert provoked the stabbing — was entirely inconsistent with the
evidence supporting an accident, defendant's principal theory of her defense. As such,
we are not persuaded that defendant's trial counsel had "no rational tactical purpose in not
30 requesting an instruction on [provocation]."13 (People v. Wader (1993) 5 Cal.4th 610,
643.) An attorney does not provide ineffective assistance by failing to request a pinpoint
instruction that is inconsistent with her theory of the defense. (Ibid.)
Accordingly, we reject defendant's claim of ineffective assistance of counsel.
D. Cumulative Effect
Defendant argues that the cumulative prejudicial effect of the errors associated
with the issues discussed at parts II.A. through C., ante, deprived defendant of due
process and a fair trial. Because we have found neither error nor prejudice, "there was no
prejudicial error to accumulate." (People v. Scott (2011) 52 Cal.4th 452, 495.)
13 The fact that defense counsel argued for an instruction on voluntary manslaughter based on the heat of passion (see CALCRIM No. 570) is irrelevant to our analysis. First, in the event the jury rejected the accident theory but believed there was evidence of provocation, counsel may have had a tactical reason in asking for manslaughter rather than second degree murder. In any event, given the evidence of provocation here, the court was required sua sponte to give the instruction on voluntary manslaughter based on the heat of passion, regardless what defense counsel requested. (Breverman, supra, 19 Cal.4th at pp. 158, 162.) 31 DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
MCDONALD, J.