Opinion
DONDERO, J.
I. INTRODUCTION
Following years of strife between Jennell Renee Wright and her former boyfriend, Le’Mar Green, some of it centered around their three-year-old son, defendant drove to Green’s home, waited for him to return from work, and shot him three times. A jury convicted defendant of first degree murder with a special circumstance finding of lying in wait.
On appeal, defendant argues the trial court erroneously failed to instruct on self-defense, imperfect self-defense and provocation/heat of passion theories of voluntary manslaughter, and on provocation as a basis for the reduction of murder from first to second degree. She also argues the evidence was insufficient to support the lying-in-wait special-circumstance finding, the court erroneously excluded defense evidence, and a juror’s postings on Facebook constituted prejudicial misconduct. We affirm.
[1465] II. STATEMENT OF THE CASE
By first amended information filed July 28, 2011, the Contra Costa County District Attorney charged defendant, Jennell Renee Wright, with the special circumstance murder of Le’Mar Green while lying in wait (Penal Code,1 §§ 187, 190.2, subd. (a)(15)), and shooting at an occupied motor vehicle (§ 246) on February 23, 2010. The information alleged that she committed each offense while personally and intentionally discharging a firearm to cause great bodily injury or death. (§ 12022.53, subds. (b), (c), & (d).)
Jury trial commenced November 7, 2011, and was submitted to the jury on December 8, 2011. The jury was instructed on self-defense (CALCRIM No. 505); right to self-defense: mutual combat or initial aggressor (CALCRIM No. 3471); right to self-defense: may not be contrived (CALCRIM No. 3472); voluntary manslaughter-heat of passion (CALCRIM No. 570); voluntary manslaughter-imperfect self-defense (CALCRIM No. 571); and provocation: effect on degree of murder (CALCRIM No. 522).
During 10 days of deliberation, the jury made several inquiries.2 One juror was replaced by an alternate, argument to the jury was reopened, and an Allen [1466] charge was given.3 On January 11, 2012, the jury found defendant guilty of shooting at an occupied motor vehicle, and further found she personally and intentionally used a firearm. (§§ 246, 12022.53, subds. (b) & (c).)
The jury reached no verdict on the murder charge and made no finding on the allegation she personally and intentionally discharged a firearm causing great bodily injury or death in the commission of the section 246 charge. The court declared a mistrial on that charge and allegation.
Jury trial before the same judge commenced January 22, 2013. The trial court solicited briefing on the preclusive effect of the section 246 conviction on self-defense and voluntary manslaughter issues. Subsequently, the court refused to instruct on self-defense, imperfect self-defense, provocation, and voluntary manslaughter.
On February 26, 2013, after one day of deliberation, the second jury returned a guilty verdict of first degree murder, found true the special circumstance that she killed while lying in wait, and the allegation she personally and intentionally discharged a firearm causing great bodily injury or death in connection with each substantive charge.
On July 26, 2013, the court sentenced defendant for murder and firearm use to life without the possibility of parole, plus 25 years to life. For shooting into an occupied vehicle and firearm use, the court sentenced defendant to the midterm of five years, plus 25 years to life. The latter sentence was stayed pursuant to section 654. Defendant timely appeals.
III. STATEMENT OF FACTS
A. The Crime Scene
Pelican Loop in the City of Pittsburg is a secluded community of about 100 town houses with five parking lots. On February 23, 2010, Barbara Gee returned to her home at Pelican Loop at about 1:00 a.m. to find the body of her next-door neighbor Natasha’s fiancé lying facedown on the ground next to the driver’s door of his car. Gee called the police. At 12:50 a.m., another resident of Pelican Loop had been awakened by the sound of gunshots. The first shot was followed by a pause, then by two more gunshots that sounded [1467] as if they came from the parking lot. Shortly thereafter she heard a car drive out of the parking lot, pass her house going pretty fast, and turn onto Railroad Avenue.
Pittsburg Police Officer Jerald Lombardi arrived at Pelican Loop a few minutes after 1:22 a.m. A man’s body was lying facedown on the ground in the parking lot between two cars. His right hand was partially clenched into a fist. There was broken glass on the ground around the body. The car’s driver’s door was open and the driver’s door window was shattered. There was broken glass on the floorboard and front seat, and a bullet fragment on the driver’s seat. There were no signs of life. The driver’s license in a wallet in the man’s right rear pants pocket identified him as Le’Mar Green.
Green’s feet were one to one and a half feet from the open doorjamb. Lombardi found a pack of cigarettes and a single burned-out cigarette butt on the ground near Green. Liquid on the ground under Green’s mouth smelled of beer. There was no blood inside the car.
The keys were in the ignition, which was in an “on” position, and Lombardi could hear an audible alarm sounding an alert that the car door was open while the keys were inside the car. The engine was not running. In the center console of the car was a cold beer can about three-quarters full. Green’s cell phone was found in the car.
Approximately 10 feet from the body, behind the car, was a fully loaded speed loader containing six live rounds. Seven more live rounds were on the ground. The bullets in the speed loader were Homady .38-caliber Special rounds, hollow tip, as were the bullets found on the ground. No empty shell casings were found, indicating a revolver was used. No weapons or additional bullet damage to the car were found.
1. The Police Investigation
The City of Pittsburg has surveillance cameras in all the major intersections that feed information to a monitoring room at the police department, where the information is recorded by computer hard drive 24 hours a day, seven days a week. A police officer on monitoring duty at the station located seemingly relevant video footage. Still photos from that footage of the vehicles leaving the scene at approximately 12:51 a.m. that morning were taken to the investigating officers at the scene.
Green’s fiancée, Natasha Griffith, was located and informed of Green’s death. Griffith told police that defendant was the mother of Green’s three-year-old son, that Green had been ordered to pay child support in November [1468] of 2009, that defendant had been asking Green for more money, and that she had been excessively phoning and texting Green. Griffith was transported to the Pittsburg Police Department, where she identified defendant from a picture the police showed her. They also showed her a picture of a car she did not recognize. She told police defendant drove a beat-up red or wine-colored automobile.
Green’s mother, Lucinda Jackson, was summoned to the Pittsburg police station, where other family members were also gathered. Ms. Jackson told police the only person her son had problems with was defendant. She also identified defendant’s mother’s car at an intersection near Green’s home in a picture the police showed her.
Police used DMV (Department of Motor Vehicles) records to verify defendant’s mother’s car was a 1997 Toyota Avalon and matched it to the car in the surveillance video. When police later checked defendant’s home in Vallejo, no one was home. Defendant’s car was there, but her mother’s Avalon was not. Police learned that defendant did not go to work on February 23.
Later, police inspectors learned defendant had been arrested for possessing a concealed loaded firearm at the Mar Ray Motel on Railroad Avenue. Defendant had checked into the motel on February 22, 2010, after 10:00 p.m. Defendant did not appear intoxicated to the motel owner at that time.
The next morning, defendant did not check out despite several warnings. When she had not checked out by 2:30 p.m., the motel owner called the police. The responding officer told defendant she needed to leave. Defendant was moving slowly, and said she was feeling dizzy. She gathered her two bags and purse, and said her mother was coming to give her a ride.
Defendant sat outside to wait. A little while later, the motel’s housekeeper reported to the motel owner that defendant had a gun. The motel owner again called the police and when the police responded shortly thereafter, he pointed out to them defendant’s green Toyota Avalon. The cleaning lady pointed out live cartridges under the mattress in defendant’s motel room. They were hollow tip .38-caliber Special Hornady.
Defendant consented to a search of her belongings. Inside one bag was a small silver Smith & Wesson .38-caliber revolver containing six live rounds. Inside another bag were more live .38-caliber rounds. Defendant was arrested for possession of a loaded concealed firearm.
There were rounds of ammunition on the driver’s seat of defendant’s car, which was registered to Robbie Wright. Inside one of defendant’s bags police [1469] found an Orchard Supply and Hardware sales receipt and inside her purse they found some handwritten notes, which read: “I got to get Lucinda’s son and Robbie’s daughter,” “[i]t started with you and will end with you,” and “[u]nknown what to do February 20.” Inside her wallet was a debit card with Green’s photo. One of her bags contained “quite a bit of ammunition,” including three Hornady expended brass casings consistent with .3 8-caliber Hornady hollow tip bullets, and two water bottles of green liquid.
Defendant’s mother, Robbie Wright, and sister, Joann Wright, arrived at the Mar Ray Motel after defendant had been taken to jail. They advised the police inspector they were afraid defendant might have attempted suicide at the motel. They were subsequently interviewed separately at the police station. The police did not tell them Green had been killed or that defendant was a suspect until after they were interviewed.
Joann Wright told the police that defendant and Green had been arguing on Saturday, February 20, when Green came to pick up their son. Joann said: “She was just real[ly] talking nasty to him and trying to provoke him to say stuff.” Joann remembered thinking she hoped Green did not say anything to defendant because if he did there would be an argument.
The recording of Robbie Wright’s interview was played for the jury. She lived in Vallejo with defendant and Joann. On Monday evening around 10:00 or 11:00 p.m., defendant asked Robbie if she wanted anything from the store, and Robbie said no. At 4:00 a.m. the next morning, Joann noticed Robbie’s car was gone, but defendant’s red Plymouth Breeze was parked in front of their house. Defendant’s mother was afraid defendant was going to attempt suicide again, as she had two years before, because she is mentally ill. Robbie repeatedly called defendant’s cell phone and finally got an answer. Defendant said she was ready to come home, but could barely talk. Robbie noticed defendant’s Prozac bottle was empty.
Robbie described defendant’s previous suicide attempt in 2008 and her subsequent hospitalization and treatment. She knew that defendant and her baby’s father did not get along. They argued. Robbie described them as “a fuse . . . [wjhen they get together.” She agreed with the interviewer’s characterization of their relationship as “pretty volatile at times.”
Robbie thought defendant was still in love with Green and wanted to get back with him. When Green moved on and started living with his new girlfriend, Natasha, it “threw her over the edge.” Defendant could not accept Green’s new girlfriend.
Robbie and Joann Wright allowed a search of their home. Inside defendant’s bedroom the inspectors found many empty tequila bottles in the dresser [1470] drawers and on the floor, and a bottle of green antifreeze. There were three empty ammunition boxes, two for Hornady hollow point bullets and one for .38-caliber lead bullets. They also found speed-loader packaging and a day care contract.
Robbie Wright agreed to a search of her car. Inside the car were three live .38-caliber Hornady hollow tip rounds, a half-full tequila bottle, and a partially full acetaminophen bottle.
After interviewing Robbie and Joann Wright, the inspectors tried to interview defendant in a holding cell at the jail. She was barely responsive, and very lethargic. She was seated on the floor, and could not stand up by herself. The inspector could tell something was wrong; she “appeared altered.” The inspector helped her stand up and asked her what she had taken. Eventually defendant revealed she had taken a whole bottle of Prozac and ingested antifreeze. The inspector requested emergency fire and ambulance aid and verified that the officer who had searched defendant’s belongings had located empty pill bottles and a water bottle containing a liquid consistent with antifreeze. Defendant was transported to the hospital in a very serious condition.
2. Surveillance Video Evidence
Surveillance video from the Mar Ray Motel from 10:00 p.m. to midnight showed a vehicle entered the motel on February 22, 2010, at about 10:34 p.m. and left the premises at about 11:54 p.m.
A compilation of surveillance video from City of Pittsburg cameras at various locations showed a 1997 Toyota Avalon leaving the Mar Ray Motel on February 22, 2010, at 11:53 p.m. The car turned onto Railroad Avenue, drove through the downtown area and to Pelican Loop. Later, Green’s Pontiac Grand Prix drove on Railroad Avenue through the downtown area and to Pelican Loop on February 23, 2010, at about 12:41 a.m. About 12:50 a.m., the Toyota Avalon drove from Pelican Loop with its lights off to Railroad Avenue, when its lights turned on, and drove on Railroad Avenue to the Mar Ray Motel.
Green worked from 3:30 p.m. to midnight. Normally, when Green got off work, he would buy a pack of cigarettes and a beer, then sit drinking the beer and smoking cigarettes in his Pontiac Grand Prix in the parking lot at Pelican Loop.
3. The Autopsy and Ballistics Findings
Green was six feet five inches tall and weighed 209 pounds. He died of multiple gunshot wounds. There were three bullets in his body. One bullet [1471] entered his left chest just above the nipple. It was fired from his left and travelled to his right and sharply downward at a 45-degree angle through the third rib, left lung, heart, diaphragm, and liver, before coming to rest in the right flank. The other two bullets entered the left arm and left shoulder within inches of each other. The bullet that entered the left arm was also fired from Green’s left, traveled left to right, and sharply downward as it went through the left arm, armpit, chest, left lung, heart, diaphragm, and liver before coming to rest in the right flank lower than the bullet that entered the chest. The bullet that entered the left shoulder was also fired from Green’s left, traveled from left to right and downward as it went through the left arm, armpit, and came to rest outside the chest wall without penetrating the chest or any organs. It was not a fatal wound. The right wrist had gunpowder stippling, which can occur within 18 inches of the gun barrel.
A firearms expert compared defendant’s Smith & Wesson revolver with the bullets recovered from Green’s body. The two autopsy bullets were fired from the revolver. The revolver did not have a hair trigger. The speed loader found in the parking lot was for a revolver that holds six unfired cartridges in its cylinder.
Defendant’s blood samples, taken on February 23, 2010, at 8:15 p.m., tested negative for alcohol, methamphetamine, and cocaine, but positive for opiates, specifically hydrocodone. The hydrocodone was present in the lowest detectable concentration — 0.02 milligrams per milliliter- — -and could have resulted from ingestion two days prior to the test.
4. Defendant’s Statement to Police at the Hospital
Police inspectors interviewed defendant at the hospital on February 25, 2010. The recorded interview was played for the jury.
Defendant admitted she accidentally shot Green. “I was just going to shoot at him.” She bought the gun and ammunition to shoot herself. “It was just too much stress.” While she was in the motel room she decided to scare Green. Defendant was angered by Green’s relationship with his new girlfriend and his failure to fulfill his responsibilities with defendant’s son. She waited in the parking lot for about 10 minutes before he got there. She sat and watched Green for about five minutes before going to shoot at him.
The first time she fired, she missed. The shot shattered the glass. Then he got out of his car and tried to hit her. He asked what she was doing there. When he tried to come after her she got scared. He came towards her between the two cars. She fired once or twice. She thought maybe she hit him in the leg. He fell; she ran.
[1472] When she got back to the motel room she took pills and drank antifreeze to kill herself. She said Green’s work schedule had changed and she did not know Green would arrive while she was at the lot. Green told her where he lived, but she had never been there before.
She had some feelings for him, but she was not in love with him. She was not upset he had a new girlfriend. She did not plan to scare Green. She decided to scare Green at the motel room.
B. Defendant’s Relationship with Green
Lucinda Jackson (Green’s mother), Robbie Wright (defendant’s mother), Joann Wright (defendant’s sister), Natasha Griffith (Green’s fiancée), and Andre Haywood (Green’s friend) testified about defendant’s stormy relationship with Green.
According to Jackson, after their son was born in 2007, Green and defendant tried to make a go of it, but they could not get along. Green moved back in with his mother in November of 2007 and lived with her until she moved away in July of 2008. Green moved back in with Jackson in February 2009, after she returned to Antioch. In March or April 2009, Jackson asked a friend from work, Natasha Griffith, to live with her. Griffith and Green became romantically involved and eventually moved to Pelican Loop.
From 2007 through 2008, Green’s relationship with defendant was stressful, tumultuous, and scary. Defendant would show up at Jackson’s house regularly. If Green did not answer his phone, defendant would call Jackson. She would knock on Jackson’s window and wake her up.
After Griffith moved in, there was an incident where defendant came to Jackson’s house at about 10:30 p.m., dressed in dark clothing. She was very aggressive and very angry and said Green was not answering his phone. Defendant wanted to know who lived in Jackson’s house and who Griffith was. After that, defendant would not let Green or Jackson see their son for four months.
According to Griffith, in the fall of 2009, Green “really wanted to get custody of his son.” He “took Ms. Wright to court. He served her.” Jackson helped Green with his court papers to get an order for visitation and custody. During that time period, Green showed Griffith threatening text messages to him from defendant. One said she would not stop until he was six feet under. Other texts said, “I’m going to end you” and “[y]ou’re going to have nothing.” Eventually, defendant and Green reached a visitation agreement that Green would pick up their son from defendant every other weekend on [1473] Saturdays at 11:00 a.m. and return him to defendant on Mondays at about 2:00 p.m. before Green went to work. The exchanges were always at defendant’s home in Vallejo and never at Griffith’s home on Pelican Loop.
Griffith confirmed that after she moved in with defendant and his mother, defendant came to Jackson’s house and tried to force her way inside. Defendant was upset, very mad, and aggressive.
After Griffith and Green moved to Pelican Loop in October 2009, Green was adamant about not letting defendant know where he lived. At that point, the relationship between defendant and Green was “very turbulent” and they were not on good terms. Their telephone conversations were “ugly.”
Griffith overheard several telephone conversations between defendant and Green. From November 2009, Green argued with defendant on the phone and received threatening text messages from her. Griffith believed the arguments were triggered because defendant wanted him back, and he continued to live with Griffith. “She didn’t like that at all.” But there was also an ongoing battle between defendant and Green over custody, child support, and the child’s care. One issue was “[t]hat he wanted his son.” He was concerned because his son was terrified of water, unkempt, unable to use a fork or spoon and “appealed] to be slightly autistic.” Green stressed that the child “needed to be checked out.”
In August or September 2009, Green asked his friend Andre Haywood to help him serve custody papers on defendant. After Haywood handed defendant the papers, defendant told Green, “You better enjoy your son while you can.”
Haywood described Green’s relationship with defendant as “real shaky.” Green did not want to be on the phone with defendant because they would argue. Often, Haywood could hear defendant screaming at Green on the phone. If Green did not answer his cell phone when she called, there would be 20 or 30 missed calls from her and text messages in which defendant threatened to call Green’s mother’s phone and wake her up, or text things like, “If you don’t pick up, I’m not going to stop until you’re six feet under.” In 2009, when Green lived in Concord, Haywood would come over and they would work on cars for extra money. Sometimes defendant would park down the street and call him from her car.
In November 2009, defendant, her two sons, her mother, her sister, and her sister’s teenage daughter moved into a six-bedroom house in Vallejo. By early 2010, that arrangement had soured. There were arguments about finances, defendant’s failure to pay her fair share of the household expenses, [1474] defendant’s oldest son’s troubles at school, and putting Green and defendant’s son in day care. The situation was aggravated by Robbie Wright’s surgery for carpal tunnel syndrome in January. Robbie was no longer able to take care of their son, and defendant had to pay for his day care.
In January 2010, they had a birthday party for their son that Green attended. Green and defendant were still fighting. Defendant wanted to talk to Green when he was leaving the party and would not let him go. Green asked Robbie Wright to help him so he could leave. Green told Robbie where he was living but asked her not to tell defendant.
When Robbie Wright saw the yellow tape at the motel, she thought defendant had killed herself due to too much pressure. The police did not tell her otherwise before she talked to them. In addition to attempting suicide on February 23, 2008, defendant also tried to kill herself at Mare Island the night after her birthday on December 26, 2009.
C. Defendant’s Prior Testimony
Defendant’s sworn testimony from the first trial was read to the jury by the prosecution. She first met Green in 2002. They were friends and coworkers and she started dating him in 2004. He moved in with her, her mother, and her oldest son. She became pregnant, and wanted the baby, but Green did not. She felt hurt and abandoned. They started not getting along, squabbling about various issues. She ended up not having that baby. She became stressed and depressed to the point she could not get up and complete normal tasks. She was drinking a fifth of tequila a day after work.
In 2006, defendant became pregnant again. Green did not want this child either. The couple broke up and Green went to live with his mother. That made her feel sad and hurt.
Their son was bom in January 2007. She still loved Green, but she did not see him very often after their son’s birth. After she gave birth, defendant started to feel more depressed. She had trouble concentrating, remembering things, getting out of bed. She was stressed about her job and financial problems. She saw a doctor at Kaiser and was prescribed Prozac, which she took without any success. She started drinking on a daily basis.
Right after she went back to work in April 2007, Green moved back in with her. He would watch their son during the day when she was at work. Their relationship was “off and on.” They argued about childcare and money, and she remained depressed about her work and home life. Eventually, Green moved out again.
[1475] In March of 2008 she tried to kill herself by taking sleeping pills with alcohol. She resumed the use of Prozac. She and Green continued to argue about money and childcare. She moved to Antioch to be closer to her childcare provider. However, Green was living nearby. While she saw him infrequently, they regularly fought over childcare payments.
She started dating her supervisor, Dwayne McFadden, in January or February 2009, and they were married in August 2009. At that time, defendant and Green were embroiled in a custody dispute that was ultimately resolved by an agreement giving both parents joint legal custody and Green visitation every other weekend.
In September 2009, defendant and Dwayne’s relationship became tumultuous, and they separated. She was drinking a fifth of tequila daily and using Vicodin, Oxycontin, and Prozac to relax and feel “normal.”
In November 2009, defendant moved into a house in Vallejo with family members to ease her costs. Her depression persisted and she continued self-medicating. Defendant soon stopped getting along with her mother and sister. She argued with her family about housework, money, spending time with her kids, her oldest son’s bad grades. At work, defendant sparred with her coworkers about work not getting done. She was drinking a quart of tequila daily and taking prescription drugs. These several stressors built up to the point she attempted suicide again in December 2009 by taking sleeping pills at the marina near Mare Island “because it was a place where nobody would find me.” She went to see a Kaiser therapist, who put her back on Prozac.
In December 2009, defendant and Green tried unsuccessfully to get together. In November 2009 she learned Green had begun dating a girl who lived with Green’s mother. Defendant believed she was being cheated on if Green was with her and Natasha Griffith at the same time.
In January 2010, defendant was still feeling morose and having suicidal thoughts. Green threatened custody modification with their son, claiming defendant was unfit. He was keeping their son’s clothes after visits. She did not know where Green lived, and she worried she would not know where to look for their son if Green did take him. Green refused to tell her where he currently lived. At some point she overheard Green telling his address to her sister and wrote it down so she could look it up. However, she never visited the location until the night of the shooting. Defendant denied she sent Green a text message during this time, saying, “I won’t stop until you’re six feet under.”
In February 2010, defendant still loved Green, but she did not want him back and was not jealous of Griffith. She might have told a psychiatrist she [1476] thought she and Green were going to have sex at their son’s birthday party in January 2010, but denied saying she took off her clothes and tried to seduce him. She denied telling Anita Greenwood if she could not have Green, nobody was going to have him.
By this time, defendant stopped seeing her psychiatrist because she could not afford the co-payment. She resolved to kill herself on February 20 because both children would be out of the house that day. However, defendant did not kill herself on that date because her older son stayed home from school. When Green came to pick up their son that day, they did not argue.
Around this time, she wrote notes to herself, because sometimes it helped her feel better about what was going on. The notes were not all written at the same time. One note read in part: “It started with you. Will end with you. Never thought your pain was funny.” Defendant explained it referred to an argument they had at the time that made her feel as if he was laughing at her. She often felt Green was mocking her “[b]ecause he wouldn’t take me seriously when I tried to tell him things or I’d talk to him about things. [¶] . . . [¶] Sometimes he’d laugh. A lot of times he would do just the opposite of what I asked or what I needed done.” Another note read: “What was in the beginning will be in the end.” Other notes read: “I got to get Lucinda’s son and Robbie’s daughter,” and “[u]nknown what to do, February 20th, the end.” Lucinda’s son was Green, and Robbie’s daughter was defendant. February 20 was the day she was going to kill herself. Defendant was otherwise unable to explain what these notes meant. Defendant also wrote, “It started with you and will end with you,” “706 blue,” “five shots,” and “hollow.” She did not know what those meant.
She was going to take pills and then shoot herself with a gun she bought for protection at the end of January from a person in the neighborhood. She bought “a lot” of hollow tip bullets because they were on sale and the salesman said they were good bullets. She bought a speed loader for the gun because the “[s]ales guy said it would help me load the gun since I didn’t know anything about it.”
Defendant’s custody agreement with Green was that he would bring their son back on Monday, but they had a verbal agreement he would bring him back on that Sunday because defendant had already paid for childcare for the upcoming week starting Monday. Defendant worked Monday through Friday, 6:30 a.m. to 2:00 p.m. When Green did not bring their son back on Sunday, February 21, defendant worried Green was not going to bring him back in time to go to childcare on Monday. Defendant did not try to contact Green on Sunday or Monday morning to tell him what time day care was supposed to start.
[1477] Defendant was unable to work on Monday, February 22, because she had consumed too much alcohol on Sunday. She was stressed and depressed. While she was running errands that day, Green returned their son to defendant’s home. When defendant returned she saw the child in diapers without the clothes he wore when Green picked him up. This triggered defendant’s fear Green was hoarding his son’s clothes to facilitate his keeping the boy from her.
That night, defendant left her house about 10:00 p.m. because she was stressed and needed to go for a drive. She drove around on the freeway and ended up in Pittsburg, knowing Green lived there. She wanted to talk to him about his threats to take their son away from her. She got off the freeway at the Railroad Avenue exit, which was the closest one to Green’s home. She stayed at the Mar Ray Motel, which was near both the freeway and Green’s home. She was going to kill herself at the motel. She had decided to shoot herself with the gun she had obtained earlier and drink the antifreeze she had originally bought for her car. She had the loaded gun in her purse and had packed her mother’s travel bag with numerous bullets. She also had the speed loader fully armed and brought it with her, although she could not explain why. She had also packed her work clothes and makeup bag, in case she changed her mind.
At the Mar Ray Motel she initiated the process of suicide by drinking tequila, taking a couple of sips of antifreeze and downing Vicodin. She was not thinking about Green. She then fell asleep and woke up believing she needed to speak with Green about his threats to take her son away. She still was not thinking about hurting him. Yet she also testified she first got the idea to shoot him when she was in the motel room.
After leaving the motel, the next thing she recalled was parking the car in the front parking lot for the Pelican Loop apartments. She did not know exactly where Green lived. She parked in the front so she would not miss him if he were going by. Defendant used her mother’s car because it ran better, not because Green was personally familiar with her Plymouth Breeze. While parked, she continued drinking tequila, but felt nauseous until she fell asleep again. Defendant was unsure if Green still was engaging in his habit of having a beer and some smokes before exiting his car after work. She knew this was his usual practice. His prior schedule found him off work around midnight but she was unsure of his current shift. She denied timing her trip to Green’s home so she could be there when Green got home from work.
When she woke up, she saw Green sitting in his car. Defendant decided she wanted to talk to him. The next thing she remembered was standing by the driver’s side window of his car. She had the gun in her hand because she [1478] “wanted him to know I was serious when I came to talk to him.” “A lot of times he didn’t listen and he would laugh at me when I would tell him stuff.” She fired into the window “to get his attention.” She was not planning to shoot him or trying to kill him.
By this time, she was feeling the effects of what she had taken, sensing a lack of control. Green “jumped out the car” and “tried to grab” her. He was leaning forward. When he got out of the car, she backed up. He was angry and called her a “motherfucker.” He “swung at” her with a balled fist, almost touching her. She was not sure what he was going to do; she was afraid. Thinking he would hit her, she shot. She believed she shot him twice. She shot him from a distance of less than five feet. She was not angry as she was shooting. After the last shot, Green fell. Then she ran to her car and drove off. She did not call 911 or try to get help for him.
When she got back to the motel, she drank the rest of the antifreeze and took the rest of the pills to commit suicide. In the parking lot, defendant never thought about shooting Green, then killing herself.
At the hospital, she told police Green came after her exiting the car. She told them he tried to grab her and she shot him. When she was in the parking lot, she was not thinking that she would shoot Green and then kill herself. She never told Dr. Berg it was her original plan to scare or shoot at Green, then come back to kill herself. When she spoke to Inspector Conaty and Dr. Berg, she did not get a chance to explain to them everything that happened, but she told everyone she spoke to that she did not plan to shoot Green.
She did not remember telling Dr. Ferranti repeatedly that she was angry; she may have been upset. She denied telling Dr. Ferranti that she got really angry as she got ready to shoot Green. She did not recall telling Dr. Berg she shot at Green because she was angry at him for talking crazy to her. She denied telling Dr. Berg she shot at Green because she wanted him to spend time with their son, and did not recall telling Dr. Berg she thought that if she shot near Green he would do the right thing.
Defendant denied sitting outside Green’s apartment and waiting for him to come home when he lived in Concord, denied calling him at work all the time, denied putting sugar in his gas tank, egging Griffith’s car, sending Green threatening texts, or trying to get at Griffith when she was at Green’s mother’s house.
[1479] D. Defense Evidence
In the second trial, defendant testified again, in many ways consistently with the summary above of her testimony from the first trial. The details were similar. It is not necessary to repeat them in our discussion of the defense evidence.
Defendant did indicate Green infrequently provided her with money to help raise their son, giving her funds to purchase diapers or $100 every now and then. Only after November 2009, when the couple were involved in judicial custody proceedings, did the assistance from Green increase a bit.
Defendant also acknowledged she testified at her first trial the idea of shooting Green arose while she was at the motel before going to his home, but that was not true. “I may have misspoké, but that’s not what I meant.” She also recalled testifying she “never thought about it.” That was true. At the motel, she was thinking about killing herself, and feeling she needed to talk first with Green. She was unable to explain why she felt that way. A video recording of defendant at the jail was also played for the jury.
Dr. Melanie Lee, a physician, treated defendant in March 2008 and February 2010 for suicide attempts. On March 6 and 7, 2008, defendant was hospitalized for an overdose of Unisom, an over-the-counter sleeping medication which contains Benadryl, and alcohol. After being discharged from the ICU, defendant was sent to an inpatient psychiatric facility and referred to a psychiatrist, Dr. Towery. Defendant’s diagnosis was major depression.
Dr. Lee also saw defendant on February 24 or 25, 2010, when defendant was treated in the emergency room after taking antifreeze. Lab results showed defendant had profound metabolic acidosis and an elevated anion gap, which is consistent with ethylene glycol poisoning from ingesting antifreeze.
Dr. Towery was asked to do a psychiatric evaluation of and make a treatment recommendation for defendant. He saw her on March 7, 2008. Defendant came in following an overdose and the recommended treatment was that she be transferred for inpatient psychiatric treatment after she was medically stabilized. Based on his consultation with defendant, Dr. Towery diagnosed her with major depression, single episode and recurrent. Persons suffering from major depression may have suicidal thoughts, low or no enjoyment in doing things, low energy, low motivation for doing things, low interest in things, sleep and appetite disturbance, and often a lower sense of self-esteem. Major depression may also affect cognitive function. Treatment is usually a combination of psychiatric medication and psychotherapy and [1480] generally takes place in a psychiatric hospital or other supervised setting to prevent suicide. Prozac is commonly used to treat major depression. He did not follow up with defendant after the initial consultation. He next saw defendant on February 25, 2010, when he diagnosed major depression, recurrent, and alcohol abuse/dependence. He recommended she resume taking antidepressant medication.
On December 28, 2009, at about 2:00 a.m., Officer Ritzie Tolentino found defendant in a car parked in the middle of the road on the abandoned military base on Mare Island where there were no street lights and no people. Defendant was passed out inside the vehicle with the engine and lights on. She appeared to have passed out from intoxication. After being awakened, she was unable to talk. She was booked and taken to jail.
Dr. Leland Mew, a retired emergency room doctor, treated defendant on February 23, 2010, in the hospital emergency room when she was brought in by police and paramedics. She was lethargic and unable to answer questions. Knowing beforehand she had probably overdosed on ethylene glycol, which is toxic as well as lethal, he began immediate treatment for acidosis with stomach pumping and the antidote panipisol. Tests confirmed she had metabolic acidosis, which could be caused by ingesting antifreeze.
If a female five feet four inches tall and weighing 135 pounds drank a fifth of a liter of tequila from 11:00 p.m. to 1:00 a.m., by 8:15 p.m. that evening her blood-alcohol level would be at or near zero. A concentration of .02 micrograms per milliliter of hydrocodone would be at the lower end of the therapeutic range for a chronic user. Hydrocodone is an opiate contained in Vicodin. It can affect a person’s cognitive abilities. Alcohol can magnify the effects of opiates.
IV. DISCUSSION
Defendant contends the trial court erred prejudicially by failing to give requested instructions on the principles of homicide law that may reduce a first degree murder to a second degree murder or manslaughter. Specifically, the defense requested CALCRIM Nos. 505 (justifiable homicide and self-defense), 570 (voluntary manslaughter — provocation and heat of passion), 571 (voluntary manslaughter — imperfect self-defense), and 522 (provocation may reduce first degree murder to second degree murder). These instructions were given at the first trial.
The court’s rationale for refusing to instruct on these principles and lesser included offenses appears to have been twofold. First, the court may have concluded the first jury’s guilty verdict on count two, shooting into an [1481] occupied vehicle, precluded instruction on the issues of provocation, heat of passion, self-defense and imperfect self-defense in the second trial. Second, the court concluded defendant’s testimony at both trials, viewed in light of certain ancillary principles of homicide law, established as a matter of law that self-defense, provocation, heat of passion, and imperfect self-defense were unavailable as theories of defense. As we explain, the court made several errors, but we conclude the errors do not warrant reversal.
A.-E.