Filed 6/18/14 P. v. Gonzalez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056554
v. (Super.Ct.No. FVA901232)
HORACIO GONZALEZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison,
Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury found defendant and appellant Horacio Gonzalez, Jr., guilty of one count
of murder in the first degree (Pen. Code, §187, subd. (a)),1 with the additional allegation
of the use of a deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)).
Defendant was sentenced to 25 years to life for the murder, with a consecutive one-year
term for the weapon’s use.
Defendant raises five issues on appeal. First, he asserts that there was
insufficient evidence to support a finding that the murder was premeditated. Next, he
argues that counsel rendered deficient representation by failing to request a pinpoint
instruction on provocation and also by failing to make an offer of proof concerning
defendant’s GPS logs of the victim’s travels. The fourth issue charges that the trial
court improperly pressured a deadlocked jury to reach a verdict. Fifth, defendant asserts
that the cumulative prejudicial effect of trial errors requires reversal. Finding none of
these contentions persuasive, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant and the victim met in 2003; they were married in 2006 and had two
children. In 2006, the marriage began to change, and the couple began to fight.
Defendant would yell, curse, and spit. The couple separated in early 2009. The victim
moved in with her sister, but there were continued incidents. Defendant threw a rock at
the victim’s car and threatened to kill himself, tying a belt around his neck. He was
held for two days for psychiatric observation as a result. Some altercations were
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 physical, with the victim receiving scratches, bruises, and injury to her neck. The
victim obtained a restraining order against defendant, barring him from contact with her,
which he repeatedly violated. Incidents would occur when defendant and the victim
crossed paths as part of child visitation.
Defendant was possessive about the victim. After their separation defendant
became morose and lost weight. He was fired from his job in the mortgage business.
He asked a friend to wire a GPS locator to the victim’s car, but the friend refused.
Defendant attached the GPS, and used it and a private investigator to monitor the
victim’s movements. Defendant received tracking information every three minutes.
Defendant kept the information from the GPS locator on a laptop computer.
Defendant believed the victim was becoming romantically involved with a friend
of hers, Ebrat Sakhaeifar; on July 21 defendant vandalized Sakhaeifar’s car when he
saw Sakhaeifar and the victim at a restaurant with a group of friends. The next day,
defendant contacted Sakhaeifar and demanded to know if Sakhaeifar was having sex
with the victim. Defendant, “could care less what [the victim] was doing,” but he was
worried that Sakhaeifar would raise his children. Sakhaeifar had once been convicted of
loitering with intent to commit prostitution.
Defendant’s former coworker, Diana Lozano, had given defendant a machete
after defendant told her his property had been tagged with graffiti. On July 22, 2009,
the day after defendant vandalized Sakhaeifar’s car, defendant told his manager that he
felt unwell and left work early. He had already talked on the phone three times with
Lozano. Defendant called Sakhaeifar from his car and had an angry conversation with
3 him. Defendant then called and texted the victim; he was seeking more visitation time
with his kids. He “was done” after that phone call and “[i]t wasn’t worth living . . . .”
Defendant went to the beauty salon where the victim worked, and he brought with him a
gas can, a laptop computer, and the machete. Defendant went to the salon “to discuss
possible increased visitation” with the victim. He brought the laptop to show her the
tracking information he had, which he intended to threaten to show to the court if the
victim did not give him increased visitation. He brought the machete, which he had
“[i]n [his] car from the night before” when he vandalized Sakhaeifar’s car. Defendant
intended to use the machete for “[i]ntimidation.” In the laptop bag was a 24-ounce
bottle of bleach, which he brought to use to kill himself.2
When defendant arrived at the salon, he entered, yelling “Where’s [the victim]?”
or “Where is she at?” His entrance created a stir; he was described as looking “very”
angry, “very determine[d], demented,” “kind of crazy looking,” with “an evilness in his
eyes,” “evil-looking,” and “[d]emonic” but not “crazy.” People in the salon screamed
and scattered, and some ran to warn the victim, who ran out the back door. Defendant
raised the machete as he ran towards the back. Defendant stumbled or was tripped
when he reached the rear of the shop, and he dropped the gas can and his bag. He
pursued the victim into the parking lot behind the salon. Defendant caught up to the
victim and they both fell. The victim got up and started to run towards the back door of
the salon, but defendant got between her and the door and “pushed her” away from the
2 We found no testimony regarding the gas can, its contents, or its purpose.
4 salon. He then struck her with the machete, with the most serious blow inflicting a deep
cut to the side of her head and neck. Defendant threw the machete on the ground by the
victim and left the scene. Despite attempts to help her, the victim bled to death in the
parking lot.
Defendant walked away to go drink bleach. He bought a 24-ounce bottle of
bleach, which was the same size as the one he left at the salon in his laptop bag. He
walked approximately one mile from the salon. Lozano called defendant’s cell phone
during that time; defendant was curt and hung up on her. When Lozano called back he
was crying, throwing up, and saying “‘she’s gone.’” Approximately 20 minutes after
his attack on the victim, defendant texted Lozano to come pick him up. He would not
tell her exactly where he was, but she pieced it together from information from him and
his mother. When located, he was sitting against a tree, drinking bleach. Lozano tried
to get the bottle away from him, but he would not give it up and continued to drink from
it. Lozano called 911. Lozano’s friend flagged down a police car. The officer saw that
defendant matched the description of the suspect being sought for the attack at the salon
and arrested him. He noted blood on defendant’s lips and bleach stains on his pants.
The autopsy performed on the victim revealed the fatal blow had fractured the
victim’s skull and severed her left carotid artery and both the left internal and external
jugular veins. There were three superficial linear injuries that could have been inflicted
by the blunt side of the machete. Part of the victim’s thumb was severed; this was likely
a defensive wound. Apart from the head and thumb wounds, all the other injuries were
superficial.
5 The defense elicited testimony from two medical experts. Dr. Vasilica Valcu, a
psychiatrist, testified he initially examined defendant on September 29, 2009, two
months after the killing, and found him to be suffering from major depressive disorder.
Defendant initially told Dr. Valcu that he was having auditory hallucinations, but these
went away. Dr. Valcu had no opinion of defendant’s mental state at the time of the
murder. Forensic psychologist Dr. Michael Kania testified that he ran the MMPI
(Minnesota Multiphasic Personality Inventory) test on defendant and found defendant
suffered from paranoid distortions and severe delusions, with depression that dated back
to January 2009. Dr. Kania characterized the results of the MMPI as having “borderline
validity” because of some “mild” exaggeration and possible thought disorders, but he
saw no evidence of malingering. Dr. Kania did not meet with defendant until
November 2011, but did not believe that his diagnosis was less reliable because of the
passage of time. Dr. Kania’s diagnosis of defendant was depression with suggestions of
psychotic thinking.
Defendant testified at trial. Before he testified, the trial judge found it necessary
to make a record of defendant’s behavior during Sakhaeifar’s testimony. Outside the
presence of the jury, the judge noted there was the start of an “outburst” by defendant,
where he became angry and started to rise from his seat. The bailiff put his hand on
defendant to calm him. The court also noted defendant was responding vocally and by
gesture to Sakhaeifar’s testimony and, “You could tell he was angry.”
Defendant testified his marriage degenerated when the victim became “neglectful
as a wife to [him],” despite the fact that he would give her “permission” to go out with
6 friends as a sort of reward for giving him two beautiful children and being a good wife.
Defendant felt he was not “controlling.” He was disturbed when the victim would stay
out until 9 p.m. on weeknights after work, once coming home at 11:45. He denied
being jealous about the victim or abusive towards her. Although the night before the
murder he vandalized Sakhaeifar’s vehicle, he testified “I don’t see why” he would be
jealous of Sakhaeifar. After January of 2009 he “gave up” on the victim and “just
moved on with [his] life”; his concern was only for his children. Defendant tracked the
victim’s movements because he was concerned she was not spending enough time with
the children.
The tracking log defendant kept on the victim was not permitted to go before the
jury. It contained information about where the victim’s car went and how long it stayed
in various places. Defendant made entries in the log regarding information he had
received from the detective he had hired to follow the victim, and information he
obtained about the locations she visited. Defendant would note when the victim visited
the homes of men and their ages, when she made deposits to her bank account, his
suspicions about drug use at certain locations, and when she stopped at locations near
nightclubs or strip clubs. One entry contained the notation, “CHUCKIE CHEESE
PIZZA GOOD QUALITY TIME WITH MOTHER.” The notations in the proffered
tracking records suggest that the victim may have been working as a prostitute and
frequenting strip bars. The log became garbled and indecipherable. Defendant testified
he was “scared” about the places the victim went.
7 Defendant lost custody and visitation with the children partly because of the
incidents that occurred when he would meet the victim for visits. Nonetheless, he
maintained that his children were his highest priority. He testified he accepted the
machete after his property was tagged—not for his own protection, but because he was
concerned about being able to protect his home if he was awarded custody of his
children. Defendant felt “[the victim] could date who she wanted,” but that she forgot
about their children.
Defendant went to the salon on the day of the attack to show the victim the
tracking logs on his computer, but he also brought a machete, a gas can, and a bottle of
bleach. He denied raising the machete that he carried. He had the laptop bag and gas
can with him in the parking lot. Defendant purchased a second bottle of bleach to drink
after the murder. Defendant testified that when he struck the victim in the head with the
machete, he did not intend to kill her, but admitted telling a psychologist that when he
was pursuing the victim he felt “like a lion chasing a zebra.”
Defendant sparred with the prosecutor while on the stand. He told her she did
not know the facts. He deflected her questions with non-answers such as “That’s your
opinion, yes,” “I can give you that,” “Those are your words,” and “Is that a statement or
question, ma’am?” He responded to defense counsel’s objection to a question about
whether a person striking someone in the head with a machete would be intending to
kill with, “I have an answer. That’s fine,” “I have an answer. I’m not worried.” He
stated that a person “in their right mind” would “absolutely” intend that, but he had
denied that he intended to kill the victim.
8 During the trial, defense counsel sought a jury instruction on voluntary
manslaughter. The defense argued the GPS logs, which tracked the victim’s car, were
evidence of provocation by her misbehavior sufficient to affect the defendant’s
reasoning and judgment. In addition, the defense argued that the testimony of the two
expert witnesses would support a defense of diminished actuality. The trial court did
not admit the tracking logs into evidence because they were purely conjectural; they
provided no information about what was done at any given location or even who was
using the car. The manslaughter instruction was not given because the trial judge did
not believe there was “anything that the decedent did that could reasonably be construed
to cause the provocation for the heat of passion that might be a defense in this case.”
Defense counsel registered a continuing objection to the denial of the instruction. The
court backtracked, noting, “[b]ased on what your defendant might testify to, I think you
might be able to try that, put it that way.” After the completion of testimony, the trial
judge reconsidered and reaffirmed his ruling.
The jury received the case on May 17, 2012, and deliberated for two hours until
the proceedings were continued to May 21. On May 22 the jury sent a note asking “[t]o
see the judge. We can’t make a decision.” Before the court responded, the jury then
asked for Dr. Kania’s testimony to be read back. The trial judge delivered, orally and in
writing, a further instruction. The jury received a read-back of Dr. Kania’s testimony,
and reached a unanimous verdict the next morning, after less than two hours of further
deliberation.
9 DISCUSSION
A. SUFFICIENCY OF EVIDENCE OF PREMEDITATION
Defendant asserts that his conviction is invalid because there is insufficient
evidence that the murder was premeditated. In determining whether a criminal
conviction is supported by sufficient evidence, a reviewing court must “determine
whether the record evidence could reasonably support a finding of guilt beyond a
reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318, fn. omitted.) In
Jackson, the Supreme Court explained, “the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
[Citation.] This familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Once a defendant has been
found guilty of the crime charged, the fact finder’s role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all of the evidence is to
be considered in the light most favorable to the prosecution.” (Id. at pp. 319, fn.
omitted; see also People v. Johnson (1980) 26 Cal.3d 557, 578.) The judgment
challenged on appeal is presumed correct, and it is defendant’s burden to affirmatively
demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) We
cannot substitute our judgment for that of the jury, even if we believe the circumstances
might also support a contrary finding. (People v. Gonzales (2011) 52 Cal.4th 254, 295,
citing People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
10 Substantial evidence is evidence that “maintains its credibility and inspires
confidence that the ultimate fact it addresses has been justly determined.” (People v.
Conner (1983) 34 Cal.3d 141, 149.) To be substantial, evidence must be credible and of
solid value. (People v. Guardado (1995) 40 Cal.App.4th 757, 760-761.) The “whole
record” to be reviewed includes “the entire picture of the defendant put before the jury”
and is not limited “to isolated bits of evidence selected by [one party].” (People v.
Johnson, supra, 26 Cal.3d at p. 577.) Given this court’s limited role on appeal,
defendant bears a heavy burden in claiming there was insufficient evidence to sustain
his conviction for first degree murder.
Deliberation “‘means careful consideration and examination of the reasons for
and against a choice or measure.’ [Citation.]” (People v. Bender (1945) 27 Cal.2d 164,
183.) Premeditation “means ‘To think on, and revolve in the mind, beforehand; to
contrive and design previously.’ [Citation.]” (Ibid.) Relying on the Thomas court’s
emphasis on reflection, the court concluded that “‘[t]he true test is not the duration of
time as much as it is the extent of the reflection.’” (Bender, at p. 185, quoting People v.
Thomas (1945) 25 Cal.2d 880, 900.) Thus, “‘[a]n intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.’ [Citation.]” (People v. Pearson (2013) 56 Cal.4th 393,
443.) In response, our state Supreme Court reaffirmed the significance of “preexisting
reflection, of any duration” to distinguish first degree murder (based on premeditation
and deliberation) from second degree murder. (People v. Solomon (2010) 49 Cal.4th
792, 813; accord, People v. Houston (2012) 54 Cal.4th 1186, 1217.)
11 The court in People v. Anderson (1968) 70 Cal.2d 15 (Anderson), provided
guidelines “for the kind of evidence which is sufficient to sustain a finding of
premeditation and deliberation.” (Id. at p. 26.) Such evidence “falls into three basic
categories: (1) facts about how and what defendant did prior to the actual killing which
show that the defendant was engaged in activity directed toward, and explicable as
intended to result in, the killing—what may be characterized as ‘planning’ activity;
(2) facts about the defendant’s prior relationship and/or conduct with the victim from
which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of
motive, together with facts of type (1) or (3), would in turn support an inference that the
killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of
considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’
[citation]; (3) facts about the nature of the killing from which the jury could infer that
the manner of killing was so particular and exacting that the defendant must have
intentionally killed according to a ‘preconceived design’ to take his victim’s life in a
particular way for a ‘reason’ which the jury can reasonably infer from facts of type
(1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first
degree murder typically when there is evidence of all three types and otherwise requires
at least extremely strong evidence of (1) or evidence of (2) in conjunction with either
(1) or (3).” (Id. at pp. 26-27.) The categories are neither complete nor exclusive.
(People v. Koontz (2002) 27 Cal4th 1041, 1081.) “Since Anderson, we have emphasized
that its guidelines are descriptive and neither normative nor exhaustive, and that
reviewing courts need not accord them any particular weight. [Citations.]” (People v.
12 Halvorsen (2007) 42 Cal.4th 379, 419-420.) “However, ‘[w]hen the record discloses
evidence in all three categories, the verdict generally will be sustained.’ [Citation.]”
(People v. Stitely (2005) 35 Cal.4th 514, 543.)
Illustrating evidence of planning, Anderson discussed the case of People v.
Hillery (1965) 62 Cal.2d 692, in which “the defendant’s surreptitious conduct,
subjection of his victim to his complete control, and carrying off of his victim to a place
where others were unlikely to intrude, can be described as ‘planning’ activity directly
related to the killing.” (Anderson, supra, 70 Cal.2d at p. 27.) In another case, planning
evidence was found when the defendant left the victims to retrieve a rifle from his car
and, after killing one victim, manually loaded a second shot into the rifle’s chamber to
kill the second victim. (People v. Thomas (1992) 2 Cal.4th 489, 517.) Similar evidence
was present in People v. Young (2005) 34 Cal.4th 1149, where the defendant, after
being denied entry to a house, crashed through a living room window armed with a gun
before killing a resident inside the house. From such evidence, the jury could infer that
the “defendant ‘considered the possibility of murder in advance’ . . . .” (Id. at p. 1183.)
Here, the circumstances of the present incident are clearly susceptible to a
reasonable inference that defendant’s conduct was the result of preexisting reflection as
opposed to a rash unconsidered impulse. Substantial evidence of all three Anderson
factors—planning, motive, and a method of killing tending to show a preconceived
plan—can be drawn from defendant’s actions.
Defendant’s challenge to his conviction rests on comparisons with other first
degree murders. Unlike the cited cases, his crime was not “surreptitious or calculated.”
13 Further, he notes that his crime took place in daylight before a group of people who
could easily identify him, and he inflicted a number of superficial wounds before the
killing blow. Such a killing must have been an impulsive act by a man debilitated by
depression, he asserts, because there were other ways to kill her that were more covert
or efficient. Since this proves his crime was not planned, he argues that premeditation
can only be found here under Anderson if there is evidence of motive and evidence that
the manner of killing showed a preconceived design. The fact that defendant argued
with and was physically abusive of the victim does not establish motive, and, in his
view, the manner of killing is “as consistent with a sudden, random explosion of
violence as with calculated murder.” Unlike an execution-style shooting, the most
calculated type of murder, the frenzied machete-slaying here is “entirely inconsistent”
with premeditation, he says, and his attempt to kill himself afterwards shows that he was
acting rashly and impulsively. Defendant compiles his argument by reference to
isolated parts of the record; consideration of the full record refutes his assertions.
There is no requirement in the law that a defendant’s planning must intend the
most optimal crime. Premeditation is shown when a defendant arrives at the scene of
the crime with a plan for a murder, regardless of whether it comprises the best or most
complete scenario. Activity “directed toward” and “explicable as intended to result in[]
the killing” is all that Anderson requires. (Anderson, supra, 70 Cal.2d at pp. 26-27.)
The record shows such activity.
Defendant saw the victim with another man and the next day, he decided he did
not want to live any more. He walked into the salon where the victim worked carrying
14 his makeshift murder/suicide kit. He brought a laptop computer, a machete, a gas can,
and a 24-ounce bottle of bleach. His testimony was that he brought the laptop to show
the victim that he had evidence she was an unfit mother, and have a conversation
regarding visitation with their children. The jury may have believed this, although it is
unlikely that yet another violation of the restraining order against him would lead a
judge to rule in his favor. He testified that he only brought the machete to get her to
listen to him, for “Intimidation.” The jury might have believed this as well, but to do so
they would have had to discount the testimony heard from other witnesses that he raised
the machete in his hand as he stormed down the aisle of the salon. The jury could
believe that the machete just happened to be at hand, but to do so they would have to
disregard defendant’s testimony that the weapon, which he said he kept to defend his
property from taggers, was in his car “from the night before,” when he saw Sakhaeifar
with the victim, and vandalized Sakhaeifar’s car. The jury could have accepted that the
machete was for protection or intimidation, and not for lethal violence. However, it
cannot be said that no rational fact finder would reach the opposite conclusions, given
the difficulties with defendant’s testimony.
Defendant did not explain why he brought the gas can or the bleach into the
salon. He did state that, after he attacked the victim, he left “to go drink [his] bleach.”
He testified he was already suicidal when he arrived at the salon and life “wasn’t worth
living.” He bought the bleach beforehand and had it in his laptop bag. Clearly,
defendant had a plan to kill himself after the confrontation at the salon, or at least to
make it look like he was trying to do so.
15 It is possible a jury could believe that defendant expected his scheme, to obtain
greater visitation rights, would fail, and he would then kill himself. However, it is not
unreasonable for the jury to believe defendant instead planned to kill himself after
committing a murder in broad daylight, in front of witnesses who knew him, and that
this explained why his plot had no getaway plan. Further, such an end is entirely
consistent with defendant’s testimony about his suicidal ideation.
Defendant’s plan can reasonably be seen as being focused on murder, and not on
visitation. Witnesses testified defendant entered the salon in a rage, using terms such as
very angry, demonic, evil, demented, and crazy-looking to describe his aspect.
Defendant denied he was running or out of control as he entered the shop, but witnesses
testified people screamed and scattered as he ran in. Defendant’s initial anger, before
any confrontation of the victim, is significant.
Defendant insisted he was not motivated by jealousy. He testified he had
“moved on” after January of 2009 and “could care less what she was doing” with her
personal life. He said “she could date who she wanted” and he was not jealous of other
men. Defendant testified he tracked her movements by private detective and GPS
tracking only because he was afraid she was neglecting her children. Although the
tracking logs were not presented to the jury, they included the names and ages of males
residing at the addresses where her car stopped. Clearly, it was possible the victim’s
travels were innocent; the jury could reasonably choose to view the evidence that
defendant was tracking the victim’s movements as proof not of his fatherly concern but
of his obsessive jealousy. The fact that the murder occurred the day after defendant
16 vandalized Sakhaeifar’s car, after defendant saw Sakhaeifar with the victim—defendant
watched in his car with his machete—may have pressed a contrary view upon the jury.
Further, the fact defendant stormed into the salon shortly after a conversation with
Sakhaeifar, which defendant admitted made him “very angry”—one that Sakhaeifar
reported began with defendant’s question “Are you fucking my wife?”—makes it a
reasonable conclusion by the jury that defendant’s predominate issue was not child
visitation.
As defendant chased after the victim, defendant stumbled at the rear of the shop.
He insisted he did not drop his laptop bag and bleach bottle, but witnesses testified
otherwise and the items were recovered in the salon by the police. Defendant had to
purchase a second bottle of bleach after the murder, which would not have been
necessary if he had not dropped the laptop bag in the salon. After he fell, defendant
retained only the machete. If defendant’s plan was to increase his visitation rights
through blackmail and intimidation, he needed to have the laptop to show his
“evidence.” If his plan was to kill and then kill himself, he needed only the machete
and the bleach. Defendant had and used the machete. Defendant and the victim fell
together once as she tried to escape. He did not attempt to discuss visitation with her or
reconsider his purpose after the fall. He testified he felt “like a lion chasing a zebra” as
he closed in on the victim. Defendant herded her away from the salon’s back door; he
took the time to strike her three times with the blunt side of the machete, call her
“bitch,” and make a comment about not being allowed to see his kids, before he drove
the machete blade through the side of her skull into her brain. The evidence supports
17 the view that defendant toyed with and taunted the victim before killing her, which is
not at all inconsistent with premeditation.
Defendant’s testimony was not inherently more believable than other evidence
before the jury. His testimony that he retained the laptop bag after his fall in the salon
was further undercut by his own testimony that after the killing he purchased another
bottle of bleach to drink. The police recovered a bottle of bleach in the laptop bag at the
scene of the murder; defendant felt the need to conform to his plan down to the last
detail by drinking bleach, despite the fact that he had at hand a proved lethal weapon.
Defendant’s suicide attempt was planned, and not a rash or impulsive act. Further, just
as the jury could find defendant planned his suicide attempt, it could reasonably find
that he planned its failure. Defendant testified he came to the salon intending to die, but
he ingested poison rather than immediately end his life by using the machete. He also
walked over a mile away to find a place to sit. Although he testified that he intended to
die, he answered calls on his cell phone, and, some 20 minutes after the murder, texted
Lozano to come pick him up. Defendant also called his mother and told her where he
was. When Lozano found him, he was still drinking from the same 24-ounce bottle,
nearly an hour after the murder. Defendant denied that he drank the bleach to
manipulate people to feel sorry for him, but that conclusion is no less supported by his
claim that he intended to take his own life. Defendant’s actions can reasonably be seen
as preconceived and planned, arising from a jealous and controlling motive.
We must not substitute our views for those of the jury if there is substantial
evidence to support its verdict. There is substantial evidence to support each Anderson
18 factor. Defendant’s activity before arriving at the salon displays extensive planning
behavior. He assembled a set of items, each of which had a purpose in his plan,
including a lethal weapon. He was not at the salon by chance, but left work early to
drive to the salon while calling the victim and her supposed paramour on his cell phone.
Once at the salon, he chased her out of the shop with the only item indispensible to his
plan: the machete. His motive, as well, is clear. Rather than his unlikely tale of a
clumsy attempt to win increased visitation with his children, the jury chose to accept the
prosecution’s description of a jealous estranged husband who, after seeing his wife with
another man, decided to end her life.
Lastly, the manner of the killing meets the third Anderson standard and supports
the jury’s finding of premeditation. Defendant ran through the salon to chase the victim
into the parking lot; he thought of himself as a hunting lion. In addition to that
reflection, defendant had a further opportunity to abandon his killing purpose when they
both fell, but he resumed his chase. The victim got to her feet and tried to reach the
safety of the salon, but defendant blocked her and pushed her away from the back door.
Eventually, the victim “just stood there. She stopped fighting. And she just was trying
to block him with her hand[s] like an X.” “The one wound that would be classified as
defensive is the injury to the thumb. It’s likely she was trying to cover her head and the
thumb was severed when the injury to the head took place. . . . [¶] . . . [¶] [D]efensive
type are injuries on the hands and forearms where you’re essentially trying to cover and
protect yourself.” In People v. Lunafelix (1985) 168 Cal.App.3d 97, 102, the victim’s
effort to retreat, posing no threat, evidenced premeditation and deliberation by the killer.
19 Defendant said his purpose was to show the victim the evidence he had against her on
the laptop, but he had dropped the laptop in the salon. Without the laptop to prove his
knowledge of her unworthiness as a wife and mother, he settled for slapping her with
the blunt edge of the machete, insulting her, and telling her that she was to blame for his
acts. Then defendant killed the victim with a single blow to the head, dropped the
machete by her body, and walked away. Finding strong evidence of planning and
supporting evidence for all three of the Anderson guidelines, we find substantial
evidence in support of the jury’s verdict.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant asserts his counsel rendered constitutionally inadequate assistance by
failing to request a pinpoint instruction that defendant’s subjective mental state was
such that he did not deliberate and premeditate the murder. As a companion issue, he
charges that his counsel was also derelict in failing to make an offer of proof that the
tracking records should be admitted as demonstrating his subjective state of mind.
Finding no possible prejudice from the failure to attempt these acts, we affirm the
judgment.
To establish constitutionally inadequate performance by counsel, defendant must
show, “(1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel’s
deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’
that, but for counsel’s failings, defendant would have obtained a more favorable result.
[Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in
20 the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing,
among other cases, Strickland v. Washington (1984) 466 U.S. 668; accord, People v.
Boyette (2002) 29 Cal.4th 381, 430.) Hence, any such claim has two necessary parts:
deficient performance and prejudice to the defense. (Strickland, at pp. 687-688, 693-
694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10
Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to
establish either component, his claim fails.
1. PINPOINT INSTRUCTION
The jury received three instructions regarding murder. They were given the
standard definition of murder in CALCRIM No. 520. CALCRIM No. 521 correctly
instructed the jury on the difference between first and second degree murder. The
instruction states that, in order to determine the defendant premeditated and deliberated,
the jury must find that the defendant “carefully weighed the considerations for and
against [his] choice and, knowing the consequences, decided to kill.” It further explains
that “[a] decision to kill made rashly, impulsively, or without careful consideration is
not deliberate and premeditated.”
The jury also received instruction CALCRIM No. 522, “Provocation: Effect on
Degree of Murder.” The instruction reads: “Provocation may reduce a murder from
first degree to second degree[.] The weight and significance of the provocation, if any,
are for you to decide. [¶] If you conclude that the defendant committed murder but was
provoked, consider the provocation in deciding whether the crime was first or second
degree murder.”
21 Defendant argues that his counsel should have requested a pinpoint instruction
that “amplified” CALCRIM No. 522 regarding his subjective mental state.
CALCRIM No. 522 is itself a pinpoint instruction. (CALCRIM, Bench Notes, p.
250.) It modifies the standard definition of murder in CALCRIM No. 520 and of
degrees of murder set out in CALCRIM No. 521. The instruction has been upheld as
sufficiently distinguishing between first degree murder and second degree murder on
the basis of provocation. (People v. Hernandez (2010) 183 Cal.App.6th 1327, 1334.)
Subjective provocation sufficient to reduce first degree murder to second degree
murder requires that defendant’s mental state was such that he did not deliberate and
premeditate the killing. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296;
People v. Padilla (2002) 103 Cal.App.4th 675, 677-678.) A defendant who does not
deliberate and premeditate due to provocation is guilty of second degree murder even if
the provocation would not have prevented a reasonable person from deliberation or
premeditation. (Fitzpatrick, at pp. 1294-1296.) Such a subjective mental state exists
when a defendant “formed the intent to kill as a direct response to . . . provocation and
. . . acted immediately.” (People v. Wickersham (1982) 32 Cal.3d 307, 329,
disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.)
The subjective provocation upon which defendant relies arose “from depression
so severe that it bordered on paranoid delusions affecting his decision-making
capabilities.” He argues in briefing that the victim’s activities scared him for the
welfare of his children, so he sought to “convince her through intimidation to allow him
to see his children or run the risk he would use the information in family law court.”
22 Because he testified that he never intended to kill, he asserts that he acted without
“making any calculated judgment or weighing considerations.” Further, Dr. Kania, his
psychologist, testified that defendant suffered from chronic depression with
schizophrenic reactions and paranoid features. However, the diagnosis came from the
doctor’s evaluation of him in 2011, which he could “date back” to 2009 based upon
records of other doctors that he reviewed. Dr. Kania’s diagnosis was depression with
“strong suggestions as to the possibility of psychotic thinking, even at that time and
indication of similar thinking as he told me about what he recalled happening in July of
2009.” Defendant acknowledges that there was no actual provocation by the victim, but
states that it was defendant’s “delusional belief based upon the GPS log[] evidence that
[the victim] was not taking proper care of their children and he feared for their welfare,
so much so that he went to the hair salon intend[ing] to confront her and use the log[]
evidence in an attempt to see his children.”
The fact that counsel did not request a further pinpoint instruction on subjective
provocation did not render his representation deficient. “‘[I]n appropriate
circumstances’ a trial court may be required to give a requested jury instruction that
pinpoints a defense theory of the case . . . [b]ut a trial court need not give a pinpoint
instruction if it is argumentative [citation], merely duplicates other instructions
[citation], or is not supported by substantial evidence [citation].” (People v. Bolden
(2002) 29 Cal.4th 515, 558.) A pinpoint instruction on subjective provocation is
required to be given only if it is requested and if there is evidence to support the theory.
23 (People v. Rogers (2006) 39 Cal.4th 826, 878) Here, the instruction lacked sufficient
supporting evidence.
Defendant asserts he was motivated by fear for his children’s welfare. For the
purpose of this claim, he presumably admits this fear was objectively unreasonable and
that his depression clouded his thinking so that he believed his fears were warranted.
Even granting defendant’s claim to have suffered from delusions at the time of the
killing—which rests on the extremely tenuous footing of psychological testimony based
upon a MMPI test administered 30 months after the killing, self-reporting of past
symptoms, and extrapolation from more contemporaneous medical reports—a necessary
connection is missing.
Nothing about the supposed subjective provocation would lead defendant to
murder. At most, defendant has explained why he might have thought he must violate
his restraining order to attempt to blackmail the victim to let him see their children more
often. There is no provocation to murder. Defendant has not argued that he killed his
children’s mother in order to protect them from her bad parenting. The victim did
nothing to provoke defendant when he arrived at the salon. All of the alleged
provocations occurred beforehand, as did defendant’s planning and deliberation.
Defendant has denied jealousy or possessiveness as motivations for the murder.
Although defendant states he was provoked to confront the victim over her neglect of
their children, his action, upon sight of the victim, was to murder her. Defendant
unreasonably believed the victim was a bad mother and therefore wanted greater
24 custody of his children. Murder was not a consequent response. The evidence does not
support giving a further pinpoint instruction.
Furthermore, the pinpoint instruction would have duplicated the instructions that
were given. The trial court instructed the jury that “[a] decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and premeditated. On the
other hand, a cold, calculated decision to kill can be reached quickly.” This instruction
adequately covered the defense theory, and a duplicative pinpoint instruction need not
be given. Most significantly, there was compelling evidence of premeditation and
deliberation. Overwhelming evidence shows that defendant did not form the intent to
kill “as a direct response to” provocation and did not kill “immediately.” (People v.
Wickersham, supra, 32 Cal.3d at p. 329.) We are convinced beyond a reasonable doubt
that an instruction more explicitly applying a subjective standard would not have
influenced the jury’s verdict.
2. ADMISSION OF GPS TRACKING RECORDS
Defendant asserts his counsel rendered him inadequate assistance because
counsel failed to make an offer of proof that the GPS tracking records were relevant
evidence to defendant’s state of mind. Because the records were not relevant to any
issue at trial, we find that the offer of proof would have been a futile gesture and
defendant therefore suffered no possible prejudice.
A trial court has broad discretion in determining the relevance of evidence but
lacks discretion to admit irrelevant evidence. (People v. Riggs (2008) 44 Cal.4th 248,
289.) Here, the trial court received oral argument on the admission of the tracking logs,
25 took a break in the proceedings to review them, found them inadmissible and stated its
reasons: all on the record. Defendant told the court the tracking logs provided
information as to when the tracked vehicle arrived at specific addresses, but the court
noted that many entries consisted of specific addresses and an “mph” entry, indicating
the car was moving. The reliability of the logs was further undercut by the fact that they
do not record who was driving the vehicle, so their relevance to the victim’s activities is
suspect. Defendant’s briefing does not respond to the trial court’s concerns. Instead,
defendant maintains the logs would have provided evidence of defendant’s delusional
state of mind—despite their flaws.
This court has reviewed the proposed evidence and finds it was not an abuse of
discretion to exclude them. Defendant’s obsessiveness was already before the jurors:
they knew he hired a private detective to follow the victim and that he surreptitiously
attached a GPS tracker to her car, which reported her location to him every three
minutes. The only additional information the records themselves would provide come
from comments inserted by defendant into the tracking records. The narratives added to
some entries disparaged the victim and accused her of promiscuity, drug use, and
prostitution. The records are duplicative in places. As the facts of defendant’s
monitoring of the victim were already before the jury, the only additional value of the
logs would be allowing defendant to voice his accusations against the victim. That does
not justify their admission, and they were properly excluded.
Despite the adverse ruling, no offer of proof was required of counsel. The trial
judge excluded the logs and explained his reasoning on the record. Defendant asserts
26 that the failure to make a formal offer of proof was deficient performance. This
overestimates the significance of an offer of proof. “An offer of proof should give the
trial court an opportunity to change or clarify its ruling and in the event of appeal would
provide the reviewing court with the means of determining error and assessing
prejudice. [Citation.]” (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) The trial
court considered the arguments before it and even took a break in the proceedings for
further review and consideration following the initial argument. In addition, defense
counsel then objected to the ruling and registered a continuing objection. There was no
need to further highlight counsel’s disagreement with the ruling. The trial court was
well informed of counsel’s arguments and no change or clarification would be
forthcoming.
The record would not have been improved by an offer of proof. “The offer of
proof exists for the benefit of the appellate court. The offer of proof serves to inform
the appellate court of the nature of the evidence that the trial court refused to receive in
evidence . . . . The function of an offer of proof is to lay an adequate record for
appellate review . . . .” (1 Wigmore on Evidence, § 20a (Tillers Rev.1983), p. 858.)
The proposed evidence was marked for retention and is before us. The trial court set
out its reasoning in the trial transcript, and we have reviewed and accepted it. In
everything but name, defense counsel made an offer of proof and he has preserved the
issue for us in full. We see no possible prejudice from counsel’s failure to make an
offer of proof, and find no deficient performance.
27 C. JURY DEADLOCK
The jury received the case on May 17, 2012. On May 22 the jury sent a note
indicating they could not reach a decision. The trial judge delivered a further
instruction derived from People v. Moore (2002) 96 Cal.app.4th 1105 (Moore).3
Defendant argues that the Moore instruction used in response to the jury’s note coerced
the verdict. Finding no impropriety in the decision to give the instruction and no defect
in the instruction, we affirm.
Section 1140 provides, in pertinent part, that “the jury cannot be discharged after
the cause is submitted to them until they have agreed upon their verdict . . . unless by
consent of both parties [or] at the expiration of such time as the court may deem proper,
it satisfactorily appears that there is no reasonable probability that the jury can agree.”
“The determination, pursuant to section 1140, whether there is a ‘“reasonable
probability”’ of agreement, rests within the sound discretion of the trial court.
[Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 539, citing People v. Miller
(1990) 50 Cal.3d 954, 994; People v. Breaux (1991) 1 Cal.4th 281, 319.) “Although the
court must take care to exercise its power without coercing the jury into abdicating its
independent judgment in favor of considerations of compromise and expediency
[citation], the court may direct further deliberations upon its reasonable conclusion that
3 The Moore instruction is given to a deadlocked jury to spur further deliberations by reminding them to be open to changing their minds in order to reach a verdict, if one can be reached without violating their individual judgment. The instruction also suggests methods of refreshing deliberation, such as role-playing jurors holding opposite views. (Moore, supra, 96 Cal.App.4th at pp. 1118-1119.)
28 such direction would be perceived ‘“as a means of enabling the jurors to enhance their
understanding of the case rather than as mere pressure to reach a verdict . . . .”
[Citation.]’ [Citation.]” (Proctor, at p. 539.)
Defendant first argues that the trial court gave the instruction without questioning
the jury to ascertain whether there was a “reasonable probability” they could reach a
verdict. There is no such requirement. A jury may not be dismissed unless the court
finds there is no reasonable probability of a verdict. The trial court has discretion
whether to allow deliberation to continue and need not inquire of the jury.
Defendant next asserts that the Moore charge improperly suggests that the jury
must reach a verdict and that it pressured holdout jurors to defer to the majority.
Defendant acknowledges the Moore instruction has been recognized as a proper charge
to a jury reporting difficulties. (People v. Whaley (2007) 152 Cal.App.4th 968, 983;
People v. Hinton (2004) 121 Cal App.4th 655, 661; Parker v. Small (9th Cir. 2011) 665
F.3d 1143, 1148.) He urges this court to follow the reasoning of Justice McAdams’s
concurrence in Whaley, which found the “‘reverse role playing’” suggestion troubling
and the overall instruction to create an expectation of a verdict. (Whaley, at p. 985)
However, even Justice McAdams agreed that the effect was insufficient to reach a level
requiring reversal. Here, on facts less troubling than the 11-1 split known to the trial
judge in Whaley, we decline to find the instruction coercive.
D. CUMULATIVE ERRORS
Defendant contends the cumulative effect of defense counsel’s errors requires
reversal of his conviction and sentence even if none of the errors is sufficient
29 individually. We conclude that any errors or assumed errors were nonprejudicial,
whether reviewed separately or cumulatively.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
KING Acting P. J.
CODRINGTON J.