People v. Mansury CA4/1

• Court: California Court of Appeal
• Decided: April 25, 2016
• Docket: D067770
• Status: Unpublished

Opinion

Filed 4/25/16 P. v. Mansury CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D067770

Plaintiff and Respondent,

v. (Super. Ct. No. SCD251282)

GHAZAL MANSURY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.

Fraser, Judge. Affirmed.

Susan K. Shaler, 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, Barry Carlton and Adrianne S.

Denault, Deputy Attorneys General, for Plaintiff and Respondent. A jury found defendant and appellant Ghazal Mansury guilty of first degree

murder (Pen. Code, § 187, subd. (a)) of her mother, Mehria Mansury (sometimes Mehria

or victim). The court sentenced defendant to prison for 25 years to life.

On appeal, defendant contends her first degree murder conviction should be

reversed because there is insufficient evidence in the record to support the finding the

murder was "willful, deliberate, and premeditated." She further contends the trial court

erred when it admitted what she contends was unlawful character evidence and when it

instructed the jury regarding provocation and the meaning of premeditation. As we

explain, we reject each of these contentions and affirm the judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution's Case

At the time of the murder, Mehria lived in a house on Amulet Street in San Diego.

When defendant was about three years old, Mehria, her husband Amanullah Mansury

(Amanullah) and defendant moved from Kabul, Afghanistan to the United States.

Mehria's niece, Zohra Enayat (Enayat), testified many of Mehria's relatives lived

in the San Diego area. Enayat described their families as "very close" and noted they

were all involved in each other's "everyday life." Enayat testified that, after Amanullah

died in or about 2002, defendant moved in and out of Mehria's house; that whether

defendant resided with her mother depended on whether defendant had money and/or had

a boyfriend; and that it was defendant's decision whether to live with her mother because

Mehria always wanted to be with, and would have "given her life" for, defendant.

Enayat testified that Mehria in the past had asked her and defendant's other

relatives to speak to and encourage defendant to take education more seriously and to

2 break free from a lifestyle that defendant admitted included 19 years of sustained

methamphetamine use. At the time of the murder, defendant and her boyfriend, Lucio

Moreno (Moreno), were living in Mehria's garage. Defendant chose to live in the garage

because she wanted to use drugs with Moreno. According to Enayat, defendant and

Moreno had moved into the garage after they "lost everything," including property,

money, and cars given to them by Mehria.

Enayat noted that in 2013, Mehria became depressed, sad, and lost weight as a

result of Mehria's deteriorating relationship with defendant. Enayat described Mehria's

house in 2013 as a "disaster," noting there was "junk" and "trash" everywhere and noting

the house smelled because defendant was breeding birds in the living room. Because

Mehria's house was filthy, Enayat informed her aunt about three or four months before

the murder that she no longer would visit in Mehria's house.

According to Enayat, the relationship between Mehria and defendant further

deteriorated when defendant's dog attacked and disabled Mehria's dog. Although Mehria

was willing to put up with defendant's constant drug use and with defendant's poor

treatment of her, Enayat testified Mehria could not take the constant fighting between the

two dogs.

Thus, in July 2013—about two months before Mehria went missing—Mehria told

defendant that a "friend" wanted to buy defendant's dog. Defendant agreed to sell her

dog for $200. Enayat testified that as part of the ruse, she told defendant the "friend"

would pay $100 for the dog. Defendant agreed to the sale, and Enayat gave defendant

$100.

3 As Enayat was leaving with defendant's dog, defendant became suspicious when

Enayat did not take the dog's food and blanket. Enayat and Mehria nonetheless took

defendant's dog to the animal shelter. Enayat testified that once at the shelter, they

agreed to use Enayat's name to allay Mehria's concern that defendant might harm Mehria

if defendant knew her dog had been taken to the shelter. According to Enayat, defendant

then was already "abusing" Mehria, including verbally, calling Mehria a "bitch"

Over the next few days, Mehria called Enayat and reported defendant would not

let Mehria drive Mehria's new car because defendant somehow had learned they had

taken her dog to the shelter, which caused defendant to throw a "tantrum." Defendant

retrieved her dog from the shelter and brought it back to Mehria's house. At the time of

the murder, defendant remained angry at Mehria for taking defendant's dog to the animal

shelter.

Mehria's brother, Tim Arande (Arande), testified he, his wife and their young

daughter visited Mehria in the afternoon of Monday, September 23, 2013. During the

visit, Arande and his wife noticed Mehria had swelling and puffiness near her right eye.

When Arande's wife inquired about Mehria's eye, Mehria told them she had an "allergy."

Arande stated both he and his wife suspected Mehria was being untruthful as she

appeared "very stressed," unhappy and unwilling to make conversation, despite the fact

Arande's wife and daughter were set to travel to Mehria's native country, Afghanistan, the

following day.

After Arande dropped off his wife and daughter at the airport the following day,

he tried several times to reach Mehria by phone. Initially he called Mehria's "land line"

at least four times, but each time he got a "busy signal." He next called Mehria's cell

4 phone at least three times. Mehria did not answer her cell phone, and, unlike many times

in the past when Arande had called his sister, on this occasion he was unable to leave a

message because Mehria's cell phone just continued to "ring and ring." Arande also was

unable to reach Mehria on Wednesday, September 25. Although Mehria's landline rang

when he called on Wednesday, nobody answered. However, as before, Arande was

unable to leave a voicemail message on Mehria's cell phone.

Worried that he had been unable to reach Mehria for two days, Arande went to

Mehria's house on Wednesday, September 25, arriving sometime before 12:00 p.m. He

rang Mehria's front doorbell many times, but nobody answered. He also did not hear any

barking from Mehria's dog. Arande testified that there was no sign of any activity in and

around Mehria's house, even after he called out his sister's name.

Growing more concerned about Mehria, Arande called their sister, Razia Rahim

(Rahim). Rahim confirmed she too had not seen or heard from Mehria. Arande learned

their other sister, Nasima Salihie, also had been unsuccessful in reaching Mehria. The

siblings thus contacted police to " 'find out what [was] going on' " with their sister.

Arande testified about 10 of Mehria's relatives were present at Mehria's house

when the police arrived in the afternoon on Thursday, September 26. Arande saw

defendant standing outside alone, near the garage door. Arande later saw a man he

assumed was defendant's boyfriend come outside from the garage area. Arande was too

upset then to speak with defendant because defendant had not told any of Mehria's family

members that Mehria had been missing for days.

Arande recalled an incident about a year before Mehria disappeared when he

overheard an argument between defendant and Mehria. Arande heard defendant using

5 "bad words" toward her mother, including such words as "bitch" and "fuck" and telling

her mother she was "stupid." Arande testified he did not intervene in the argument

because his sister was a very private person.

Attorney Mark Classen testified that he prepared legal documents for Mehria in

2005 as part of her estate plan that named defendant as the beneficiary of her trust. After

preparing such legal documents, Classen had no further contact with Mehria other than

occasionally receiving a "Christmas card" from her.

Classen testified he received a voicemail message from defendant at 8:01 a.m. on

September 30 informing Classen that Mehria was missing. Classen called back later that

same morning and spoke with defendant. At the time, Classen was unaware there had

been "considerable media coverage" about Mehria's disappearance. Defendant told

Classen that the "family had been looking for [Mehria] . . . since the previous Tuesday"

and that the police had been informed on Wednesday that Mehria was missing. Classen

then "note[d] mentally" that defendant's statements about her mother being missing were

"devoid of emotion."

Patricia Grace Stahl (Patricia) testified she had known defendant a "few years"

when Mehria went missing. Patricia testified she and defendant did "drugs" together,

including methamphetamine, and that sometimes she would "crash" at Mehria's house.

Patricia described herself and defendant as both "drug addicts."

Patricia testified that on Wednesday, September 25, she and defendant went to

lunch and then hung out together; and that later in the day, they went back to Mehria's

house so that Patricia could retrieve "some of [her] stuff." While they were driving

around in Mehria's car, Patricia asked defendant about Mehria's whereabouts because

6 Patricia had heard about Mehria's disappearance from news reports. Defendant initially

told Patricia her "mom was out shopping with . . . friends." Later that day, however,

while they were in the car waiting for Moreno, defendant "out of the blue" told Patricia

that she had killed Mehria.

Defendant told Patricia key details about the murder. Patricia testified defendant

stated that before the murder, defendant and her mother had been arguing; that during the

argument, defendant pushed Mehria, injuring her; that defendant became concerned

because Mehria had suffered "visible injuries" that "people could see"; that as a result of

Mehria sustaining "visible injuries," defendant did not want her mother to go to a

prescheduled medical appointment; and that as a result, defendant decided to kill Mehria.

Patricia testified that during this same conversation, defendant stated she used a

bicycle inner tube to strangle Mehria; that after strangling Mehria, defendant next found a

"blood pressure machine," which showed Mehria had no heartbeat; and that defendant

then "dropped off" Mehria's body "somewhere out in Lakeside."

Patricia also testified that before the murder, she saw defendant and Mehria

together "[a]ll the time"; that defendant and Mehria were "constantly fighting"; that

although Patricia could not understand what Mehria said to defendant (ostensibly because

Mehria was speaking in a foreign language), Patricia could understand what defendant

was saying to her mother; that Patricia was "blow[n] away" by the things that defendant

would say to Mehria; that by way of example only, Patricia heard defendant call Mehria

"a bitch, a hag, a whore" and "every name there was in the book"; that Patricia was

"offended" by the way defendant often spoke to Mehria; and that the relationship between

7 Mehria and defendant was not the type of relationship a mother and daughter should

have.

Dismayed over what defendant had told her, Patricia subsequently called her

former husband, Dusty Roswell Stahl (Roswell), and relayed her conversation with

defendant. Although divorced, Patricia stated that she and Roswell remained close; that

she knew Roswell would do the right thing; and that she was glad Roswell subsequently

called "Crimestoppers" about the murder because Mehria had the "right to have peace."

Patricia testified she subsequently received prison letters from defendant. In one

of those letters, defendant referred to Roswell and Roswell's new wife as "fucking rats"

because they were the ones that had called Crimestoppers regarding Mehria's

disappearance.

Beth Bauer (Bauer) testified that she was an occupational therapist and that

Mehria was one of her patients. Bauer recalled treating Mehria about three times in 2013

following Mehria's hand surgery. Mehria had a therapy appointment with Bauer set for

September 24. However, Mehria did not show up for that appointment. Bauer noted that

in her job she was considered a "mandated reporter." As such, Bauer was required to

report any evidence of abuse to authorities.

San Diego Police Officer Clinton Leisz testified he and another officer responded

to a call made at about 8:30 p.m. on Wednesday, September 25 regarding a missing

elderly lady. The reporting party was Enayat and not defendant. When they arrived at

the apartment of Enayat's mother (i.e., Rahim), Officer Leisz said they were met by

Enayat and several of her family members. After speaking with Enayat, Officer Leisz

was directed to defendant, who was also at the apartment.

8 Enayat testified she had gone to Mehria's house at about 6:00 p.m. that same day,

and, when she found Mehria was still not home, she quarreled with defendant because

defendant appeared "very indifferent" about Mehria's welfare. Enayat further testified

Mehria's house that day looked like a "disaster," as there were wet towels everywhere,

and, according to Enayat, everything including the sofa in the living room was wet.

Enayat told defendant that she was going to call 911 and insisted that defendant follow

her back to Enayat's mother's apartment.

As part of his investigation, Officer Leisz obtained a statement from defendant

that same night. Defendant claimed she last saw her mother at 8:00 a.m. on Tuesday,

September 24. On that morning, defendant said she went into her mother's bedroom,

found her mother in bed and obtained the car keys so she could go to work. As part of

their investigation, Officer Leisz and another officer next drove to Mehria's house.

Defendant followed behind in her own car.

Officer Leisz described the inside of Mehria's house as "disheveled" and

"disorganized." They found Mehria's purse, wallet, identification, and cell phone. When

Officer Leisz asked defendant about Mehria's cell phone, defendant responded her mother

had dropped it in water, and, thus, they had removed the battery to allow it to dry out.

However, in his cursory inspection of the cell phone, Officer Leisz then saw no evidence

of water damage. As Officer Leisz walked past the bathroom located in the hallway, he

recognized an "odor of bleach." On questioning, defendant said she had just recently

cleaned the bathroom. Based on defendant's demeanor and the fact defendant had not

seen her mother since about 8:00 a.m. the day before and had not reported her missing,

9 Officer Leisz then concluded there were "unusual circumstances" regarding Mehria's

San Diego Police Sergeant Thomas Sullivan testified he and other officers went to

Mehria's house around noon on Thursday, September 26 in response to a missing person

report that had been submitted the night before. Sergeant Sullivan estimated there were

about 15 family members of Mehria waiting for them. Defendant allowed the officers

inside Mehria's house.

Sergeant Sullivan testified that once inside the house, he noticed dog feces

everywhere; that although her mother was then missing, defendant acted "somewhat

indifferent"; and that on questioning, defendant was unsure where her mother was,

although she told police her mother was suffering from dementia and perhaps had

"walked away" from the house. Defendant also told police her mother had befriended, or

been befriended, by two people defendant did not know.

As Sergeant Sullivan walked down the hallway of the house, he smelled an order

of bleach coming from the bathroom. Sergeant Sullivan testified the bleach order was

"very noticeable." Inside the bathroom, Sergeant Sullivan saw a bottle of bleach and a

pair of white socks in the bathtub. On questioning, defendant told Sergeant Sullivan that

her boyfriend had "dirty feet" and had been "washing his socks."

During the walkthrough, Sergeant Sullivan obtained defendant's consent to search

Mehria's car, which was parked out front. Inside the car officers found a "steno notepad"

with defendant's name on the ledger. The notepad also referenced symptoms commonly

associated with dementia.

10 Sergeant Sullivan testified he then concluded Mehria likely had been murdered by

one of the people in the house. He testified he arrived at this conclusion because the

house was in "complete disarray," but the bathroom was "spotless"; and because when he

went inside the bathroom, he saw a "red droplet" on the floor, right next to the door.

Hafizah Shaharyar (Shaharyar) testified that she was very close to Mehria, her

aunt; that she typically spoke to Mehria once or twice a week; and that after she learned

Mehria went missing, she called Mehria's landline on Thursday, September 26 and spoke

to defendant. When Shaharyar asked defendant what had happened to Mehria, defendant

stated her "mom used to walk her little dog, the little Chihuahua, and probably she got

lost because was developing dementia." When Shaharyar asked if Mehria was home on

Tuesday, September 24, defendant claimed to have gone "straight to her [i.e. defendant's]

room" after coming home late from "work" that day and that she assumed Mehria was

sleeping in her own room. Defendant also told Shaharyar the next day, Wednesday,

defendant got up early and went to work. Because Mehria's door was still closed,

defendant assumed her mother was still sleeping.

Susan Herrera (Herrera) testified that she and her husband were living in a remote

part of East County when Mehria went missing; that because of the remoteness, hardly

any vehicles came up the dirt road where they lived; and that because they were

"caretakers" of the private property, the property owners instructed Herrera and her

husband to stop and ask anybody what they were doing in the area.

At around 9:00 a.m. on or about September 24, Herrera saw a vehicle either

parked or moving very slowly on their remote dirt road. Typically, Herrera would have

stopped and spoken to the driver. Herrera testified she did not do so that day because she

11 was running late for a doctor's appointment and because she saw the driver was a

"middle-aged woman" who "didn't look like [she] was . . . going to do any trouble."

Herrera testified she looked intensely at the woman driver as they slowly passed

each other in their cars. From a distance of about four feet, Herrera noted the woman was

probably in her 40's, had dark brown hair pulled back in a bun and had a "Middle Eastern

look" as a result of what Herrera described was a "very profound jaw line." As they

passed, Herrera testified the woman driver did not turn to look at Herrera directly, which

Herrera then found "very unusual."

Herrera testified a few days later she saw a news report about a missing woman.

In that report, Herrera saw a person who looked "exactly like" the woman she had seen

days earlier on the dirt road. Herrera noted even some of the clothing worn by the

woman on the news report was "astonishingly the same" as the clothing worn by the

woman Herrera had seen driving on the dirt road. Herrera contacted police. Herrera

identified defendant in court as the woman driver she saw on the dirt road on or about

September 24.

William Sykes (Sykes) testified he spoke with defendant sometime between 11:00

a.m. and 12:30 p.m. on Tuesday, September 24, while they were both doing volunteer

work in a church kitchen. On that particular day, Sykes recalled defendant was

"somewhat distraught" and was "sad and … angry at the same time." Defendant that day

shared with Sykes that she did not like her relationship with her mother, as they were

arguing "all the time" and it really had defendant "down."

That same day, defendant told Sykes and other church volunteers that her mother

was missing; that the police were investigating; and that she was a suspect. However, as

12 noted ante, the police were not notified of Mehria's disappearance until the following day

(i.e., Wednesday, September 25).

Tin Bach (Bach) testified that he was working as the director of surveillance at an

Indian gaming casino at the time Mehria disappeared; that through a player's club card,

the casino could electronically track when a certain player's card was being used at the

casino; and that the casino offered rewards to players using a player's club card. Bach

further testified that a person needed an acceptable identification card to obtain such a

card.

Bach noted that defendant's player club card was used at the casino at about 4:30

a.m. on Wednesday, September 25. Bach further noted that before September 25, the last

time defendant's player's club card had been used in the casino was November 3, 2012.

As part of their investigation, police on September 28 found a laptop in the trunk

of Mehria's car. Sergeant Richard Pechin testified he performed a forensic examination

on the laptop's hard drive. Sergeant Pechin found two "user accounts" for the laptop, one

belonging to Mehria and another to defendant.

With respect to Mehria's account, Sergeant Pechin found the last login was likely

on September 13, 2013. He also found no "significant activity" in connection with this

account between September 13 and September 28, the date when he took possession of

the laptop from San Diego Police Detective Tim Norris.

The same was not true for defendant's user account. Using various tools, Sergeant

Pechin found under defendant's account that in the evening of September 25, various

Internet searches had been run on the laptop from the Wi-Fi network of a fast-food

restaurant located on Fairmount Avenue in San Diego. One such search was "CS Info, re

13 Bloodstains," which search was subsequently repeated a minute later. Another search

connected to defendant's account was for "homicide investigat[ion]." Sergeant Pechin

found several of these same searches were also run on local media websites.

Sergeant Pechin independently used the search terms "CSI re Info Bloodstains"

and found it connected to a website that discussed "blood stain pattern and analyses, the

different bloodstain pattern, splatter pattern, [and] things like that." He also checked

other websites with similar content that had been generated in response to the searches

done under defendant's user account, including "Practical Homicide.Com" and "Crime

Scene -- Forensics.Com."

Sergeant Pechin testified defendant's user account was also used that same evening

to search the San Diego County Sheriff's website related to jail inquiries. One such

search was for a person with the last name "Moreno," first initial of "L," and another with

the last name "Stahl," first name "Roswell." In analyzing the laptop, Sergeant Pechin

also found email from two accounts associated with defendant.

San Diego Police Detective Tracy Guaderrama testified she along with other

officers went to Mehria's house on Thursday, September 26 to conduct an initial

consensual search of the property. Like the other officers, Detective Guaderrama found

Mehria's house to be "very messy" except for the bathroom off the hallway, which

Detective Guaderrama described as being "very, very clean, very white [with] a very

strong chemical smell" associated with "cleaning supplies."

About an hour after Mehria's body was found on October 2, police obtained a

warrant to search Mehria's house. Detective Guaderrama testified that once inside the

house, they found Mehria had a landline phone, but the portable part of the phone was

14 missing. When one of Mehria's sisters previously had asked defendant why the "house

phone" had been pulled away from the wall, defendant claimed the phone was not

working.

During execution of the warrant, officers also found a bottle of bleach located in a

trashcan in the kitchen area; foot impressions that were illuminated by Luminol testing in

the hallway leading to the master bedroom; blood in the "alcove area" of the living room

again illuminated by Luminol testing; carpet cleaner on the coffee table in the front living

area; a " 'barbecue skewer' " in the "spare bedroom" that was used to stir paint; a paint

can, a roller and two ladders in the hallway and in the living and bedroom area; and

kitchen trash bags and a latex glove, turned inside out, in the master bedroom.

In the alcove area of the house, police found a notepad. On the notepad was

writing about "credit cards." According to Detective Guaderrama, there also was a

"question mark about 'Own credit card. Own insurance,' with a question mark. And then

underneath that it says, 'In the event of disappearance/death.' So it's an itemized list of

maybe questions that somebody had currently with the disappearance and ultimate

discovery of Mehria." Detective Guaderrama noted underneath that list was a reference

to a funeral, which included notes about how to bear the costs of one, guests who might

attend and an approximate time for the service.

On that same page, Detective Guaderrama noted there was a reference to social

security, and further noted that "somebody received direct deposit [of] social security by

the 5th." Underneath the social security reference was the notation, " 'Juan's rent.' "

Detective Guaderrama testified "Juan" was a tenant who had rented an unattached unit on

Mehria's property. After the reference to Juan was the notation, " 'Cash by the 5th.' "

15 Juan Garcia (Garcia) testified he rented the unattached unit in June 2013 because

his job required him to be in San Diego during the week, although his family lived in Los

Angeles. Garcia testified he paid $550 per month for the unit and that when he initially

rented it, Mehria made it "very clear" he was not to give the rent money to anybody other

than her. Garcia stated defendant called his cell phone at about 5:00 p.m. on October 2—

shortly before the police executed the warrant—and left a voicemail message asking him

to pay the rent money directly to her. Garcia felt uncomfortable by defendant's request

because Mehria was missing and because Mehria had instructed him not to give the rent

money to anybody else.

Detective Guaderrama testified they found multiple, visible red stains on a green

chair that Mehria regularly used, on mail near the chair and on the walls in or about the

alcove. DNA testing showed it was Mehria's blood. Police also found Mehria's blood in

the trunk of her car and, using Luminol testing, evidence suggesting the molded plastic

panel inside the trunk, next to the trunk latch, had been cleaned. In addition to finding a

laptop computer (as noted ante) and parts of a bicycle, including bicycle inner tubes,

police also found cleaning products and trash bags in the car.1

San Diego Police Department Criminalist Coral Luce (Luce) testified the pattern

of blood stains on the mail and on the walls in the alcove was consistent with impact

spatter. Luce opined that, given the evidence of such impact spatter, Mehria likely

sustained at least "one blood-letting injury in the living room/dining room area."

1 During the search of Mehria's house, police found a receipt in defendant's possession from a large retailer dated "9-24-2013" for a purchase made at "2008," or 8:08 p.m. The receipt shows the items purchased included 30-gallon trash bags, bird and dog food and cleaning products including bleach. 16 San Diego Police Department Detective Maura Parga testified a search for Mehria

began around dusk on Thursday September 26. Initially searchers focused on a "nine-to-

ten-square-mile radius" near Mehria's house. Several members of Mehria's family, but

not defendant, as well as myriad volunteers joined in the search over the next few days.

The fact defendant did not join in the search or even report her mother missing was a "red

flag" for Detective Parga.

Based on information received during the investigation, ostensibly as a result of

information provided by Roswell, police on October 2 refocused their search efforts to

the Lakeside area, specifically at the bottom of Wildcat Canyon Road. About 4:00 p.m.

that day, a volunteer found a badly-decomposed body in a gully in a rural area behind an

Indian gaming casino that was determined to be Mehria.

Olivia Gomez (Gomez) testified defendant sometimes would pawn items at the

pawnshop where Gomez worked and that on occasion, Gomez would watch defendant's

dog while defendant volunteered at a church. On Thursday, September 26, defendant

brought her dog into the pawnshop to visit with Gomez. Defendant told Gomez that she

had just gotten her "puppy" back from the pound and that the "bitch" had been the one

who had taken the dog to the pound. When Gomez asked defendant, " 'What bitch?' "

defendant responded, " '[M]y mom.' " Gomez testified that defendant was "upset" about

the dog and that defendant did not say anything about her mother's disappearance. Gomez

learned the following day that defendant's mother was missing.

Defendant along with another individual returned to Gomez's pawnshop about

11:00 a.m. on Wednesday, October 2. Defendant carried a box that she asked Gomez to

keep. Defendant told Gomez that she was going downtown for "questioning" and that if

17 "they" kept her, the contents of the box could be used for her "defense." Defendant also

told Gomez that the box contained jewelry belonging to defendant and her mother; that

her mother was missing; and that the police believed defendant " 'had something to do

with her death.' " A short time later, a San Diego Police Detective came into the

pawnshop and took possession of the box. Police arrested defendant on October 3.

B. The Defense Case

Defendant testified in her own defense. She stated that she moved in with Mehria

in February 2013, after being homeless for about two years; that she used

methamphetamine "[a]ll day, every day, every few hours"; and that she lived in the

garage of her mother's house with her then boyfriend, Moreno, because they were using

drugs.

Defendant testified that on Tuesday, September 24, after awakening and using

methamphetamine, she went into Mehria's bedroom about 8:00 a.m. to get the car keys;

that after obtaining the keys and using more methamphetamine in the garage, she went

back inside the main house to use the bathroom off the hallway; that unbeknownst to

defendant, Mehria was standing behind the bathroom door; that when defendant opened

the door it hit Mehria in the "butt," knocking her mother down; and that because Mehria

was then in the process of undressing, her mother was off balance and thus fell forward,

hitting the side of her head on the bathroom sink. After falling, Mehria said she was "

'fine' " and even asked why defendant was still at home. Although Mehria was on her

knees, defendant testified her mother showed no visible sign of injury and was not

bleeding. Not wanting to upset her mother, defendant testified that she left in the car

about 8:20 a.m.

18 Defendant testified that she next drove around a while looking for her boyfriend

with the intention of using more methamphetamine; that when she did not find him, she

went to the church to volunteer; and that she went home around 12:00 p.m. to check on

Mehria.

When defendant arrived home, she found Mehria curled up on the floor in the

bathroom off the hallway. Defendant picked up Mehria's hand, found it was "cold and

clammy" and found Mehria had no pulse. According to defendant she then " 'freak[ed]

out,' " went into the garage and used more methamphetamine. Defendant then left the

house because she "needed to get back to work."

After going back to work for a few minutes, defendant testified she next went

looking for Moreno for "help" and "support." Eventually they found each other about

4:30 p.m. that same day. According to defendant, she and Moreno were then joined by

two other friends. The four of them drove to Mehria's house.

Defendant testified Moreno and their two friends started "clean[ing] up the

bathroom" around 6:30 p.m. )! while defendant was in the garage crying. Later that

evening, Moreno told defendant to back up the car into the driveway. They then put

Mehria's body into the trunk of the car. Before closing the trunk, defendant testified she

kissed her mother. With defendant driving, the four of them went to East County, per

Moreno's instruction. Defendant said the "plan" was to "find somewhere to put

[Mehria's] body" to cover up her death.

Because defendant was distraught, she testified she had Moreno drop off her and

one of their friends at an Indian gaming casino while Moreno and their remaining friend

"t[ook] care" of the body. On questioning, defendant testified "tak[ing] care" of the body

19 meant Moreno would "bury[] [Mehria]." Although in "shock," defendant testified she

again used methamphetamine.

Defendant testified she was not comfortable reporting her mother's death to police;

that she called her mother's estate attorney because she felt she should let "somebody

know" that Mehria "was missing" (italics added); and that she called Garcia, the tenant of

the unattached unit on her mother's property, because she "needed the money" to

"survive." When questioned why she did not call for help, defendant testified the phone

had stopped working the night before. When questioned why she did not reach out to her

many family members, defendant stated they would have accused her of killing Mehria.

When asked about the testimony of Patricia that defendant admitted to strangling

Mehria with a bicycle inner tube, defendant explained "Trish" was "freaked out" because

she was at the house with the rest of the group after Mehria died and perhaps "Trish" was

concerned that "maybe she would get blamed for mom's death." The record shows

defendant also was asked about the purchase of bleach and about why she lied to family

members and the police regarding the whereabouts of her mother. Defendant stated she

was "always doing laundry and cleaning" and she was afraid.

On cross-examination, defendant admitted she wrote on a notepad that she was "

'Going stir crazy being cooped up here with the bitch bugging me every four and a half

minutes." Defendant also admitted she wrote on a notepad, " 'How to get the bitch

committed/evaluated against her will" and " 'How to get the bitch committed.' "

Defendant stated she wrote about committing Mehria because her mother was developing

dementia and because her mother refused to be evaluated for the disease.

20 DISCUSSION

A. Sufficiency of the Evidence to Support First Degree Murder Conviction

1. Guiding Principles

" ' "[P]remeditated" means "considered beforehand," and "deliberate" means

"formed or arrived at or determined upon as a result of careful thought and weighing of

considerations for and against the proposed course of action." [Citation.]' [Citation.]

'The process of premeditation and deliberation does not require any extended period of

time. "The true test is not the duration of time as much as it is the extent of the reflection.

Thoughts may follow each other with great rapidity and cold, calculated judgment may

be arrived at quickly . . . ." [Citations.]' " (People v. Lee (2011) 51 Cal.4th 620, 636

(Lee).)

In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), our high court

determined that evidence sufficient to sustain a finding of premeditation and deliberation

generally 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]; [and] (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

21 must have intentionally killed according to a 'preconceived design' to take his [or her]

victim's life in a particular way for a 'reason' which the jury can reasonably infer from

facts of type (1) or (2)."

The Anderson court noted that "[a]nalysis 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)." (Anderson, supra, 70 Cal.2d at p. 27.) Also, the court

later explained in Lee that the three Anderson factors " 'are not exclusive, nor are they

invariably determinative. [Citation.] " 'Anderson was simply intended to guide an

appellate court's assessment whether the evidence supports an inference that the killing

occurred as the result of preexisting reflection rather than unconsidered or rash

impulse.' " ' " (Lee, supra, 51 Cal.4th at p. 636.)

When a defendant "challenges the sufficiency of the evidence, ' "[t]he court must

review the whole record in the light most favorable to the judgment below to determine

whether it discloses substantial evidence—that is, evidence which is reasonable, credible,

and of solid value—such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt." [Citation.]' [Citations.] 'Substantial evidence includes

circumstantial evidence and any reasonable inferences drawn from that evidence.

[Citation.]' [Citation.] We ' " 'presume in support of the judgment the existence of every

fact the trier could reasonably deduce from the evidence.' " ' " (People v. Clark (2011) 52

Cal.4th 856, 942–943 (Clark).)

Furthermore, as the reviewing court we need not conclude there was evidence

beyond a reasonable doubt to support the verdict. Rather, the test is "whether, after

22 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."

(Jackson v. Virginia (1979) 443 U.S. 307, 319.) We affirm the conviction "unless it

appears 'that upon no hypothesis whatever is there sufficient substantial evidence to

support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)

2. Analysis

Defendant contends there was insufficient evidence in the record to support the

finding of willful, deliberate, premeditated murder. We disagree.

Here, we conclude there is substantial evidence in the record to support a finding

of planning activity by defendant in connection with Mehria's murder. Arande testified

that the day before the murder, both he and his wife observed puffiness and redness near

Mehria's right eye, which Mehria then blamed on an "allergy." Arande noted that his

sister that day seemed unusually stressed, unhappy and depressed and that neither he nor

his wife believed Mehria's allergy explanation. This evidence supports a finding that the

constant fighting between defendant and Mehria had turned physical.

What's more, Patricia testified defendant admitted that on the day of the murder,

defendant and Mehria had argued and that during this argument, defendant became

physical with her mother. This finding is further supported by evidence of Mehria's

blood, which was found spattered in or in close proximity to the alcove, near the living

room, including on Mehria's favorite green chair, on mail located nearby and on the

walls. Criminalist Luce testified at least one blood-letting event involving Mehria

occurred in the alcove area.

23 Significantly, Patricia also testified that after Mehria sustained "visible injuries" on

the day of the murder, defendant admitted she then decided to kill Mehria because she did

not want her mother showing up injured to a medical appointment. Bauer, an

occupational therapist, confirmed in her testimony that Mehria failed to show up for her

11:30 a.m. medical appointment and that had Mehria shown up with "visible injuries,"

Bauer as a "mandated reporter" would have been obligated to notify the authorities.

But there's more. Patricia also testified that after defendant injured Mehria,

defendant then used a bicycle inner tube to strangle her mother.2 The record shows that

Moreno often worked on bicycles and that there were a "large number" of bicycle inner

tubes in the garage. The police also found bicycle inner tubes in Mehria's car. This

evidence further supports a finding of planning activity.

Although we conclude the record contains strong evidence of planning activity

(see Anderson, supra, 70 Cal.2d at p. 27), we nonetheless also conclude it contains

substantial evidence from which a jury could reasonably infer a "motive" to kill that

would in turn support an inference that Mehria's killing resulted from a " 'careful thought

2 We note that, due to the condition of the badly-decomposed body, which also had been ravaged from both the inside and the outside by animals and insects, pathologist Jacquelyn Morhaime was unable to determine the exact cause of death of Mehria. The pathologist nonetheless opined Mehria's death was a homicide, a finding defendant does not directly challenge on appeal. The pathologist testified that, because the skin around Mehria's neck was hardened, leathery and very dark and discolored, and because insect activity in Mehria's oral cavity had caused some of the soft tissue in the neck area to be disrupted and "fall apart," it was "almost impossible" to determine whether Mehria had suffered any recent soft tissue injury in the neck area. The pathologist also testified that while no injuries or marks were found in the victim's neck area, that did not "mean that an injury of the neck didn't occur . . . [i]t just mean[t] that [she] was not able to see it with the degree of decomposition changes that were present." The pathologist also testified it was possible to strangle a victim with a wide, soft surface like a bicycle inner tube and not fracture the victim's neck or leave other indications of strangulation. 24 and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily

executed' " (see ibid.). Such evidence included not only defendant's concern that she

would be implicated if Mehria went to her medical appointment with "visible injuries"

inflicted by defendant (see People v. Hovarter (2008) 44 Cal.4th 983, 1019 (Hovarter)

[noting a " 'rational trier of fact could have determined that defendant's motive in

murdering [the victim] was to avoid detection' " for the crimes committed against the

victim]), but also evidence that defendant hated her mother and that their relationship was

deteriorating.

In fact, there is ample evidence in the record, including from the testimony of

Enayat, Arande, Sergeant Sullivan, Gomez and Patricia, that defendant frequently

referred to Mehria as "bitch" and "fucking bitch" among other names, when she spoke of,

or wrote about, her mother. Defendant on cross-examination admitted she wrote on a

notepad that she was " 'Going stir crazy being cooped up here with the bitch bugging me

every four and a half minutes' " and that she also wrote, " 'How to get the bitch

committed/evaluated against her will' " and " 'How to get the bitch committed.' " The

record shows defendant also frequently told her mother she hated her.

We conclude a jury could reasonably infer from this evidence—and from the

evidence that even after Mehria went missing, defendant was still angry and complaining

about Mehria taking defendant's "puppy" to animal control—a motive that supports an

inference that the killing was the result of a " 'pre-existing reflection' " rather than " 'rash

impulse.' " (See Anderson, supra, 70 Cal.2d at p. 27.)

We also conclude there is evidence in the record to support a finding that

defendant murdered Mehria for financial gain. The record shows defendant and her

25 boyfriend moved into Mehria's garage after they had "lost everything" and after

defendant admitted they were homeless for about two years. The record also shows that

defendant admitted using methamphetamine "[a]ll day, every day, every few hours" for

19 years; that defendant "worked" as a volunteer at a church a few hours per week; that

before Mehria's body had even been found, defendant called Attorney Classen, who in

2005 had prepared Mehria's estate plan naming defendant as the beneficiary of Mehria's

trust, informing him Mehria was "missing" (but not dead), despite the fact defendant

neither informed family members nor the police of Mehria's disappearance; that in the

alcove area of the house where Mehria's blood was found spattered, police found a

notepad that included notations regarding insurance, credit cards, social security and rent

Garcia paid to live in the unattached unit on Mehria's property; and that when Garcia

rented the unit from Mehria in June 2013, she specifically instructed Garcia that he was

not to give the rent money to anybody other than Mehria. Such evidence, and the

inferences to be drawn from it, is sufficient for a reasonable jury to infer defendant's

motive for the killing was for financial gain, rather than the result of some " 'rash

We also conclude the manner of the killing, in this case strangulation with a

bicycle tire inner tube, also supports a finding of deliberation. (See Hovarter, supra, 44

Cal.4th at pp. 1019-1020 [noting that death by ligature strangulation requires a

"prolonged manner of taking a person's life, which requires an offender to apply constant

force to the neck of the victim, affords ample time for the offender to consider the nature

of his deadly act"].)

26 Finally, although postcrime evidence alone is insufficient to establish that a

defendant acted with premeditation and deliberation, such evidence may be probative of a

defendant's mental state before and during a crime. (People v. Thompson (2010) 49

Cal.4th 79, 113.) Relying on postcrime evidence, defendant contends the record shows

her behavior after Mehria's death was like " 'someone horrified and distraught about what

[s]he had done, not someone who had just fulfilled a preconceived plan.' "

However, this contention essentially requires this court to reweigh the evidence

and evaluate the credibility of witnesses, while ignoring the substantial evidence standard

in which we review the whole record in the light most favorable to the judgment to

determine whether it includes sufficient evidence such that a reasonable jury could find

the defendant guilty beyond a reasonable doubt. (See Clark, supra, 52 Cal.4th at p. 942;

see also People v. Crittenden (1994) 9 Cal.4th 83, 139 [noting under a substantial

evidence standard we presume the existence of every fact supporting the judgment that

the jury reasonably could have deduced from the evidence, and a judgment will be

reversed only if there is no substantial evidence to support the verdict under any

hypothesis].)

Here, the evidence in the record shows that after defendant killed Mehria,

defendant retrieved a blood pressure monitor and verified her mother was dead. In our

view, such evidence amply supports a finding that Mehria's killing was the result of cool

and calm reflection, rather than a rash or impulsive act.

However, the record also shows a woman matching the description of defendant

was seen driving about 9:00 a.m. on September 24 in a very remote part of East County.

A reasonable jury could infer from this evidence that defendant was either in the process

27 of looking for a remote location to "take care" of her mother's body, or she was then in

the process of "taking care" of her mother's body, inasmuch as Mehria was ultimately

found several days later in a culvert in a remote part of Lakeside.

In addition, the record shows that in the evening of September 25, several Internet

searches were conducted at a fast-food restaurant using a laptop found in Mehria's car.

These searches were all done under defendant's user account and included websites

discussing homicide investigations, blood stains, spatter and analyses. Several similar

searches were also run on local media websites, again from defendant's user account, as

were searches on the San Diego County Sheriff's website for jail inquiries, including for a

person with the last name "Moreno" and first initial "L" (i.e., defendant's then boyfriend).

We conclude this postcrime evidence, particularly when considered in light of the

other evidence summarized ante and the evidence that the bathroom off the hallway was

clean and contained a strong odor of bleach the day after Mehria went missing, in

contrast to the rest of Mehria's house, which multiple witnesses described as then being

dirty and untidy, further supports a finding that Mehria's killing was the result of cool and

calm reflection, rather than a rash or impulsive act. (See People v. Eggers (1947) 30

Cal.2d 676, 686 (Eggers) [noting the "means of disposing of the body, the efforts made to

prevent identification, and [the defendant's] conduct both prior to and immediately after

the crime was committed" supported the jury's conclusion that the crime was

premeditated and deliberate]; compare People v. Boatman (2013) 221 Cal.App.4th 1253,

1267-1269 [noting the lack of any planning and motive evidence to support a finding the

defendant willfully, deliberately and with premeditation killed his girlfriend after the

defendant testified a gun his girlfriend was pointing at him accidently discharged when

28 he "slapped" it out of her hand, and noting the defendant's behavior "following the

shooting [was] of someone horrified and distraught about what he had done, not someone

who had just fulfilled a preconceived plan," inasmuch as the defendant tried to resuscitate

his girlfriend, directed his brother to " 'call the cops' " and defendant could be heard

crying in the background during the 911 call].)

That defendant testified in her own defense that she accidently injured Mehria on

the morning of September 24 when opening the door to the bathroom off the hallway and

that when defendant left the house, Mehria was not only alive, but said she was " 'fine,' "

does not change our decision in this case. As the fact finder, the jury was entitled to

accept defendant's testimony; by the same logic, however, the jury also was entitled to

reject her testimony, as turned out to be the case here. (See People v. Smith (2005) 37

Cal.4th 733, 739 (Smith) [a court of review is bound to accept the factual and credibility

determinations of the trier of fact].)

We similarly reject defendant's contention that Patricia's testimony regarding

defendant's admission of strangling Mehria with a bicycle inner tube was insufficient to

allow a reasonable jury to conclude defendant committed first degree premeditated

murder. As already noted, it was up to the jury to determine what weight, if any, to give

to Patricia's testimony. (See Smith, 37 Cal.4th at p. 739.)

In any event, we note that Patricia's testimony was not so inherently improbable,

unreliable or incredible that it could not be used as the basis to support a finding of

premeditation and deliberation. (See People v. Young (2005) 34 Cal.4th 1149, 1181

[noting that "unless the testimony is physically impossible or inherently improbable,

testimony of a single witness is sufficient to support a conviction"].) Indeed, the source

29 of Patricia's strangulation testimony was defendant herself, who also told Patricia she had

"dropped off" Mehria's body "somewhere out in Lakeside." The record shows as a result

of this information, the search for Mehria was refocused and her body was ultimately

found in Lakeside on October 2.

In addition, as already noted, the record shows that defendant's boyfriend worked

on bicycles and that there were multiple bicycle inner tubes in the garage of Mehria's

house, where defendant and her boyfriend lived in a makeshift room, and in Mehria's car,

which defendant drove. On this record, we thus conclude a reasonable jury could rely on

Patricia's testimony concerning the manner in which defendant killed Mehria to infer the

killing was so particular and exacting that defendant must have intentionally killed

according to a " 'preconceived design' to take [her] victim's life in a particular way for a

'reason' which the jury can reasonably infer" from facts of the case. (See Anderson,

supra, 70 Cal.2d at p. 27.)

B. Evidentiary Rulings

Defendant next contends the trial court prejudicially erred when it admitted

evidence (1) Mehria was afraid of defendant; (2) defendant abused Mehria physically;

and (3) defendant had a "bad character."3 Defendant contends that this evidence "had

3 Evidence in category (3) related to testimony by defendant's cousin, Satara Moosa (Moosa), that even as a child defendant was "negative" and "aggressive." In context, the record shows Moosa gave this testimony when discussing the relationship between defendant and Mehria. Moosa noted that in the past she had tried to talk to defendant about what defendant "could have done with her life," because defendant was "so smart," "so amazing" and "so loved" by her family, including by her parents. Moosa also testified that she and another family member took defendant out to dinner in the days after Mehria went missing, but before Mehria's body was found, and that during dinner defendant recalled an incident when they were all younger while playing on a "rocking horse." Defendant reminded Moosa that defendant had gotten in trouble after they had 30 little or no relevance"; that the admission of these three categories of evidence merely

"served to make jurors dislike [her] because she was a bad woman"; and thus, that jurors

did not convict her based on the evidence. "We review a trial court's rulings on the

admission and exclusion of evidence under the abuse of discretion standard." (People v.

Thompson (2010) 49 Cal.4th 79, 128.)

With respect to categories (1) and (2), we conclude this evidence was relevant on

the issues of deliberation and premeditation. Evidence—and the inferences to be drawn

from it—that Mehria was afraid of defendant and that defendant both verbally and,

shortly before killing Mehria, physically abused her mother, as Patricia testified, shed

light on the nature of, and the turmoil in, their relationship and supported the finding that

their relationship was continuing to deteriorate, thus providing one possible motive for

the killing.

Indeed, the record shows the day before the murder that Mehria was stressed, sad

and depressed. The record also shows that Mehria's house, which she always kept clean

and meticulous and which was a source of pride, was then dirty, untidy, full of trash and

in "shambles" as a result of defendant and her boyfriend living on the property. The

record also shows on the day of the murder, defendant told Sykes she was angry and

frustrated over her troubled relationship with Mehria, noting they were arguing "all the

time." And even after the murder, the record shows defendant continued to express anger

and frustration regarding her mother, including when defendant complained to Gomez—

fallen off the horse, and then for the first time told Moosa that in response, defendant " 'peed in the fish bowl' " to get " 'revenge' " against Moosa. The record also shows Moosa discussed how as a child defendant would "pull off the head" of Barbie dolls. 31 while Mehria was still missing—that the "bitch" had taken defendant's "puppy" to the

animal shelter a few months earlier.

As noted ante, from such evidence a reasonable jury could infer that Mehria's

killing was intentional, as Mehria hated her mother, rather than a result of a rash or

impulsive act. (See Anderson, supra, 70 Cal.2d at p. 27; see also Eggers, supra, 30

Cal.2d at p. 686.) We thus conclude the court did not abuse its discretion and thus err

when it admitted the evidence in categories (1) and (2).

In any event, even if we assumed the admission of the evidence in categories (1),

(2) and (3) was error, we nonetheless conclude that error was harmless. It is axiomatic

that prejudice from the erroneous admission or exclusion of evidence is reviewed under

the standard announced in People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v.

Bradford (1997) 15 Cal.4th 1229, 1325 (Bradford.) Under that standard, the conviction

will be reversed only if it is reasonably probable that an outcome more favorable to the

defendant would have resulted in the absence of the error. (Ibid.)

Here, as summarized ante, there is overwhelming evidence of guilt and more than

sufficient evidence (excluding the evidence in categories 1, 2, and 3) to support

defendant's conviction for first degree premeditated murder, including defendant's own

admission that she killed Mehria by using a bicycle inner tube after Mehria sustained

"visible injuries" during an argument with defendant. As such, we conclude any error in

admitting the evidence in categories (1), (2) and (3) was harmless because a different

result was not reasonable probable.4 (See Bradford, supra, 15 Cal.4th at p. 1325.)

4 In any event, to the extent defendant claims the jury convicted her not based on the evidence but instead because she was a "bad woman" and uses the evidence in categories 32 C. Jury Instructions

1. Provocation

Defendant next contends the standard instruction on provocation, CALCRIM No.

522, was erroneous because it allegedly "failed to explain how provocation related to

premeditation and deliberation" and because it allegedly "failed to explain that, once

there was evidence of provocation, the prosecution bore the burden of proving the

absence of provocation beyond a reasonable doubt."

The court instructed the jury with CALCRIM Nos. 521 and 522. Specifically, it

instructed the jury as follows with CALCRIM No. 521, first degree murder:

"The defendant has been prosecuted for first degree murder under one theory: (1)

the murder was willful, deliberate, and premeditated. [¶] You may not find the

defendant guilty of first degree murder unless all of you agree that the People have

proved that the defendant committed murder. [¶] 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. The defendant acted

deliberately if she carefully weighed the considerations for and against her choice and,

knowing the consequences, decided to kill. The defendant acted with premeditation if

she decided to kill before completing the act[s] that caused death.

(1), (2) and (3) to support this claim, we note there is ample other evidence in the record that defendant does not challenge that in our view tended to cast defendant in a similar, if not darker, light, than the evidence in categories (1), (2), and (3). In making this point, we mean no disrespect to defendant. Instead, our intention is merely to show the admission of any evidence in categories (1), (2) and (3), even if error, was, on this record, harmless because absent such evidence, a different result was not reasonably probable. 33 "The length of time the person spends considering whether to kill does not alone

determine whether the killing is deliberate and premeditated. The amount of time

required for deliberation and premeditation may vary from person to person and

according to the circumstances. 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. The test is the extent of the reflection,

not the length of time.

"The requirements for second degree murder based on express or implied malice

are explained in CALCRIM No. 520, First or Second Degree Murder With Malice

Aforethought.

"The People have the burden of proving beyond a reasonable doubt that the killing

was first degree murder rather than a lesser crime. If the People have not met this

burden, you must find the defendant not guilty of first degree murder and the murder is

second degree murder."

The court as noted also instructed the jury as follows with CALCRIM No. 522,

provocation:

"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."

As defendant's recognizes, this court in People v. Hernandez (2010) 183

Cal.App.4th 1327 (Hernandez) addressed a similar contention to the one she makes here.

Briefly in Hernandez, the defendant was convicted of first degree murder under a

34 premeditation and deliberation theory. The defense theory of the case was that the

defendant shot and killed the victim in either reasonable self-defense, supporting

acquittal, or in unreasonable self-defense, supporting a voluntary manslaughter

conviction. The defendant also requested, and the court gave, an instruction on

provocation to support a conviction for second, rather than first, degree murder. (Id. at p.

1331.)

Much like defendant in the instant case, the defendant in Hernandez asserted that

CALCRIM No. 522 was incomplete and misleading because among other reasons it

failed to specify that provocation could "negate the premeditation and deliberation

necessary for first degree murder." (Hernandez, supra, 183 Cal.App.4th at p. 1331.) In

rejecting this assertion, we stated: "In [People v.] Rogers [(2006) 39 Cal.4th 826

(Rogers)], the court evaluated the potential for error when the jury is instructed on

provocation as it relates to voluntary manslaughter, but is not instructed on provocation

as it relates to second degree murder. [Citation.] The Rogers court concluded that the

omission of a provocation instruction for second degree murder is not misleading. The

court reasoned that 'the jury is told that premeditation and deliberation is the factor

distinguishing first and second degree murder' and the manslaughter instruction 'does not

preclude the defense from arguing that provocation played a role in preventing the

defendant from premeditating and deliberating; nor does it preclude the jury from giving

weight to any evidence of provocation in determining whether premeditation existed.'

[Citation.] [¶] As reflected in Rogers, the fact that a trial court is not required to instruct

on provocation for second degree murder at all supports that it is not misleading to

instruct on provocation without explicitly stating that provocation can negate

35 premeditation and deliberation. Although CALCRIM No. 522 does not expressly state

provocation is relevant to the issues of premeditation and deliberation, when the

instructions are read as a whole there is no reasonable likelihood the jury did not

understand this concept. Based on CALCRIM No. 521, the jury was instructed that

unless defendant acted with premeditation and deliberation, [the defendant] is guilty of

second, not first, degree murder, and that a rash, impulsive decision to kill is not

deliberate and premeditated. Based on CALCRIM No. 522, the jury was instructed that

provocation may reduce the murder to second degree murder. [¶] In this context,

provocation was not used in a technical sense peculiar to the law, and we assume the

jurors were aware of the common meaning of the term. [Citation.] . . . Considering

CALCRIM Nos. 521 and 522 together, the jurors would have understood that

provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this

in turn shows no premeditation and deliberation." (Id. at p. 1333–1334.)

Our court in Hernandez expressed satisfaction "that, even without express

instruction, the jurors understood that the existence of provocation can support the

absence of premeditation and deliberation." (Hernandez, supra, 183 Cal.App.4th at p.

1334.) Thus, we concluded that without a request for further instruction, the court was

not required to amplify the instructions given. (Ibid.)

We agree with the holding and reasoning of Hernandez. Because the jury in the

instant case was instructed with CALCRIM Nos. 521 and 522, the instructions when read

as a whole informed the jurors that first degree murder required premeditation and

deliberation, that all other murders were second degree murders, and that the jury could

consider whether defendant was provoked in determining the degree of murder. We thus

36 are satisfied the jurors would have understood that provocation could negate the elements

of premeditation and deliberation and thereby reduce first degree murder to second

degree murder. (See People v. Carrington (2009) 47 Cal.4th 145, 192 [noting the

" 'correctness of jury instructions is to be determined from the entire charge of the court,

not from a consideration of parts of an instruction or from a particular instruction' "].)

We also reject defendant's contention that the court erred when it did not instruct

the jury it was the prosecution's burden to prove absence of provocation beyond a

reasonable doubt. The record shows not once in closing did the defense mention

provocation or CALCRIM No. 522. And for good reason.

As noted ante, defendant testified in her own defense that she accidently knocked

Mehria down while opening the bathroom door; that when defendant left the house about

8:20 a.m. on Tuesday, September 24, Mehria claimed to be "fine"; and that defendant

found Mehria dead about noon that same day when defendant went home to check on

Mehria. Moreover, during closing argument, the defense aggressively argued that

Mehria's death was an accident.5

Thus, defendant's own testimony and the defense's theory of the case were that

Mehria died as a result of a tragic accident and not because defendant was provoked and

killed her mother in the heat of passion. (See Hernandez, supra, 183 Cal.App.4th at p.

5 The record shows during closing the defense argued in the alternative that if the jury rejected that Mehria died from an accident, that it nonetheless should return a not guilty verdict because there allegedly was no evidence of who killed Mehria. The defense also argued in closing that there was no evidence of willfulness, premeditation and deliberation because "we don't even know how [Mehria] died" and because the medical expert allegedly could not find any evidence of strangulation. As such, the defense argued the jury at most could return a verdict of second degree murder.

37 1334 [noting provocation "means 'something that provokes, arouses, or stimulates' . . .

[or] means 'to arouse to a feeling or action' . . . [or means] 'to incite to anger' "]; see also

People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296 [noting that to reduce a

murder to second degree murder, premeditation and deliberation may be negated by heat

of passion arising from provocation and noting that if the provocation would not cause an

average person to experience deadly passion but it precludes the defendant from

subjectively deliberating or premeditating, the crime is second degree murder].)

For this same reason, we also conclude that even if the court erred when it failed

sua sponte to instruct the jury that the prosecution had the burden to prove absence of

provocation beyond a reasonable doubt, any such error was harmless because it was not

reasonably probable the jury would have returned a verdict more favorable to defendant.

(See Watson, supra, 46 Cal.2d at p. 836; see also People v. Eid (2010) 187 Cal.App.4th

859, 883 (Eid) [noting that "[i]n determining whether instructional error was

harmless, . . . [a] reviewing court considers 'the specific language challenged, the

instructions as a whole[,] the jury's findings' [citation], and counsel's closing arguments to

determine whether the instructional error 'would have misled a reasonable jury . . .' "].)6

2. Premeditation

Defendant next contends CALCRIM No. 521, the standard first degree murder

instruction, failed to define premeditation properly because it merely provided, in part,

6 In light of our decision, we deem it unnecessary to reach respondent's alternate contention that defendant's failure at trial to request additional or clarifying instructions with respect to CALCRIM No. 522 resulted in a forfeiture of this issue on appeal. 38 that defendant "acted with premeditation if she decided to kill before completing the

act[s] that caused death." We disagree.

First, considering the instructions as a whole and assuming the jurors are

intelligent persons capable of understanding and correlating all the instructions, as we

must (Hernandez, supra, 183 Cal.App.4th at p. 1332), we conclude the instructions did

not allow the jury to find premeditation based merely on an intent to kill. Rather, under

CALCRIM No. 521, the jury was properly instructed that defendant could be guilty of

first degree murder if the People have proved that she acted "willfully, deliberately, and

with premeditation" (italics added); that she "acted willfully if she intended to kill"; that

she "acted deliberately if she carefully weighed the considerations for and against her

choice and, knowing the consequences, decided to kill"; and that she "acted with

premeditation if she decided to kill before completing the act[s] that caused death."

What's more, the jury was also instructed that the "length of time the person

spends considering whether to kill does not alone determine whether the killing is

deliberate and premeditated"; that the "amount of time required for deliberation and

premeditation may vary from person to person and according to the circumstances"; and

that a "decision to kill made rashly, impulsively, or without careful consideration is not

deliberate and premeditated." However, the jury was also instructed that "a cold,

calculated decision to kill can be reached quickly," and that the "test is the extent of the

reflection, not the length of time." Taken as a whole, we conclude CALCRIM No. 522

was a proper instruction of first degree premeditated murder.

Second, we conclude that, even if the court erred when it failed sua sponte to

further instruct the jury regarding the meaning of premeditation, we conclude any such

39 error was harmless because as noted ante, there is substantial evidence in the record to

support a finding of first degree premeditated murder, including planning activity, the

manner of killing by defendant and a "motive" to kill that would in turn support an

inference that the killing resulted from a " 'careful thought and weighing of

considerations' rather than 'mere unconsidered or rash impulse hastily executed.' " (See

Anderson, supra, 70 Cal.2d at p. 27.) Thus, we conclude on this record it was not

reasonably probable the jury would have returned a verdict more favorable to defendant

even if the court had further instructed the jury regarding the meaning of deliberation.

(See Watson, supra, 46 Cal.2d at p. 836; see also Eid, supra, 187 Cal.App.4th at p. 883.)7

DISPOSITION

The judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

7 In light of our conclusion that there were no errors—or even assuming any such errors, that they were harmless—we further conclude the "cumulative error doctrine" does not apply in this case. 40