Opinion
D073720
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID JAMES LILLARD, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SWF1302446) APPEAL from a judgment of the Superior Court of Riverside County, John M. Monterosso, Judge. Affirmed as modified. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant David Lillard guilty of first degree murder (Pen. Code, § 187, subd. (a)), arson of an inhabited structure (§ 451, subd. (b)), and first degree burglary (§§ 459, 460, subd. (a)). Lillard admitted he had four prior convictions that constituted both strikes and serious felony priors. (§§ 1170.12, subds. (a)-(e), 667, subds. (a), (c)-(j).) The trial court sentenced him to a determinate term of 20 years, a consecutive indeterminate term of 103 years to life, and imposed certain terms of imprisonment (e.g., to participate in counseling deemed necessary by prison officials, and to not own or possess weapons).
Further statutory references are to the Penal Code, unless otherwise noted.
On appeal, Lillard contends the trial court erred by refusing to instruct the jury regarding provocation as a means of reducing first degree murder to either second degree murder or voluntary manslaughter. He also challenges certain of the terms of imprisonment. We strike one term set forth in the trial court's minute order because the trial court did not include it in its oral pronouncement of sentence. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution's Case-in-chief
The prosecution theory was that Lillard murdered Autumn Kissinger in her home on the night of September 4, 2013; went home; returned to Kissinger's home the next morning; and broke in and started a fire to destroy evidence of the murder.
In 2013, Kissinger lived in a home on El Centro Avenue in Hemet. Her daughter-in-law Evelyn C. (the wife of Kissinger's son Kevin) and young granddaughter lived with Kissinger and her two dogs.
Kevin and Lillard were incarcerated in 2013, and were (at some time) cellmates. Kevin introduced Kissinger to Lillard by letter, and Lillard later wrote her indicating he was due to be released soon. When Lillard was released in late August 2013, he visited Kissinger for a few minutes to explore the possibility of renting a room from her. He did not end up renting from Kissinger, but he immediately began a romantic relationship with her.
Evelyn testified Lillard was "controlling," "angry," and paranoid that Kissinger was cheating on him. Kissinger worked mostly night shifts as a security guard, and would sleep during the day. If she did not answer her phone (because she was sleeping) when Lillard called, he would keep calling "[l]ike every five minutes." Evelyn said, "Most of the time they were arguing." She overheard Lillard threaten Kissinger and threaten to kill her dogs.
Kissinger drove Evelyn to San Diego on September 4, and planned to pick her up the following day. Kissinger and Lillard spoke by phone during the drive to San Diego, "arguing . . . the whole way there." Lillard was "threatening to her," to the point that Evelyn "didn't want to leave her alone." While in San Diego, Evelyn heard from Kissinger, who said something (not specified in the record) "that caused [Evelyn] to be concerned for [Kissinger's] safety." Kissinger did not return to San Diego to pick up Evelyn as planned, which caused Evelyn to be concerned.
Lillard wore a GPS ankle bracelet as a condition of his parole from a prior conviction. Tracking data showed that he was in the vicinity of Kissinger's home from about 7:00 p.m. to 10:52 p.m. on September 4. Lillard's father (Father) testified he picked up Lillard at about 11:00 or 11:30 p.m. that night from a gas station a few blocks from Kissinger's home. On the drive back to Father's house (where Lillard was staying), the men argued about Lillard staying out past his parole curfew. Lillard yelled, screamed, and cursed at Father; pushed him; and threatened to kill him and light his house on fire. Father noticed Lillard had a cut on his hand.
Father testified he did not recall Lillard threatening to light his house on fire, but an investigator testified that Father said this happened.
A little after 8:00 the next morning (September 5), Father drove Lillard the 10 or 12 miles to Kissinger's home. Lillard had said he needed to return Kissinger's car keys, which he claimed were in his guitar case, and bring gas for her car because it had run out. Lillard brought a gas can from Father's house. Lillard seemed "[v]ery calm."
When they arrived, Lillard got out of Father's truck, while Father made a U-turn and waited for Lillard. After a total of about five minutes, Lillard reemerged from Kissinger's house, put the gas can in the cab of Father's truck, got in, and said "he wanted to get out of there" because Kissinger was mad that they were late. Father objected to the smell of gas in the cab, and told Lillard to put the canister in the truck bed. Lillard responded, "Let's just go. She's mad"—he seemed to be in a hurry to get away from Kissinger's home. Father drove about 30 or 50 feet away before stopping so Lillard could put the gas can in the truck bed. Lillard "seemed okay" after that, and they returned to Father's home.
One of Kissinger's neighbor's, Amy A., testified that on the morning of September 5 she heard someone opening the gate to Kissinger's driveway. She looked and saw someone turn his truck around, and another man—whom she had previously seen early one morning sitting on a rock at the end of Lillard's driveway, wearing sunglasses in the dark—carry a gas can as he walked up Kissinger's driveway. Amy called Kissinger's cell phone to let her know that someone was at her house, but Kissinger did not answer. Amy saw the man go around the back of Kissinger's house, then she heard a door open and close. She did not hear any talking. Amy then saw the man exit Kissinger's house, still carrying the gas can, and start walking down the driveway. He asked Kissinger's dogs, "Where's your momma?" Amy saw the man close Kissinger's gate, get back in the truck, and leave.
About five minutes after the man left Kissinger's home, Amy noticed smoke coming out of the windows. She called 911 at 8:32 a.m. Firefighters arrived at 8:43 and extinguished the fire within about 30 minutes.
Just after the fire was extinguished, a fire captain specialist/peace officer with the California Department of Forestry and Fire Protection arrived and began investigating the scene. Kissinger's body was found on her master bedroom floor. The broken bedroom door was off its hinges; a portion of it lay beneath Kissinger's body, and other portions were found on the kitchen counter and outside. Lillard's blood was found on one wall, and a mixture of his blood and Kissinger's was found on the kitchen faucet.
The investigator detected traces of an ignitable substance he believed to be gasoline at several places in Kissinger's home, and irregular burn patterns in multiple locations. The master bedroom sustained the most fire damage—gasoline had been poured in several spots in the room, a window had been broken before the fire started (to allow the fire to breathe), and the fire was most likely started from outside.
The investigator opined the fire was intentionally started, likely to conceal evidence of a crime. An autopsy later revealed that Kissinger died from blunt force injuries to her head, and five stab wounds to her back, some of which punctured her lungs. She died before the fire was started. Kissinger sustained more burn damage to her head than other parts of her body, which suggested that an ignitable substance had been poured on her head.
On the night of the fire, investigators searched Father's residence. They seized a pair of Lillard's shoes, one of which was determined to have traces of gasoline on it. Investigators also found a red gas can.
Investigators took Lillard into custody, Mirandized him, and interviewed him. When Lillard was processed at the sheriff's station, he had scratches on his hands and a cut on his right ring finger. He also had scratches on his left shoulder blade that did not appear self-inflicted.
We discuss portions of Lillard's interview in our summary of the prosecution's rebuttal case, post. Lillard does not raise any Miranda v. Arizona (1966) 384 U.S. 436 issues in this appeal.
Two jailhouse informants testified against Lillard. Glen S. testified that shortly after Lillard's arrest, Lillard approached him in the day room of the detention facility and said, "I really screwed up. . . . I want to talk to you about something." Lillard appeared "agitated" and "nervous," and had a cut on his hand, which he said he got from breaking a window. Lillard told Glen, "I really fucked up. [¶] . . . [¶] [I] fuckin' killed and raped this bitch." Lillard explained he had met the victim through "somebody in jail [who] said that he could stay at [her] house or something." Lillard said his blood was "everywhere in the kitchen." Because there was no bleach with which to clean the blood, Lillard used gasoline to start a fire, which he lit through a window. Lillard said he was going to make an excuse about lost house keys, which he threw into a field, and would try to pin the crime on a cellmate. Although Glen had previously testified in other cases in exchange for leniency, he testified in this case without a deal "[b]ecause it's the right thing to do"—Lillard killed someone who was trying to help him get back on his feet.
The other jailhouse informant, identified in the record as a Doe witness, testified that Lillard confessed on two occasions to killing Kissinger. The first occurred while both were in a holding cell before court hearings. When Doe, who was in custody for petty theft, asked Lillard "what he was in for," Lillard said "he had killed some kid's mother"—he had "stabbed her, . . . beat her with something that was in her master bedroom, kicked her in the head," and "raped her."
The second confession occurred sometime in 2014 when Lillard and Doe were housed in the same detention "pod." In short, Doe testified Lillard told him: Kissinger became his girlfriend after they were introduced through her son while they were incarcerated together; Lillard broke into her home one night because he went to retrieve his belongings but Kissinger was not home; when she came home, he hid until she got in the shower, at which point he grabbed her by the hair, put a knife to her throat, and asked her where his drugs were; he "made love" to her, then told her to get his drugs; when Kissinger got up, she tried to flee; and Lillard then grabbed her, stabbed her, kicked her head, and beat her head with an unspecified object, which "shut the bitch up." Lillard said he called Father to pick him up a few blocks away, and they returned to Father's house. Lillard returned to Kissinger's home the next morning and set fire to it, using gasoline as an accelerant. Lillard said he called the police and told them he found the body the night before, but he did not have any knowledge of the murder or fire. Doe and Lillard jointly drew a diagram of Kissinger's home showing where the events occurred. A surveillance video from the detention center on the day in question showed Lillard pass Doe a piece of paper. The diagram was admitted as a trial exhibit. Although Doe had previously testified in other cases in exchange for leniency, he testified in this case without a deal because he "felt it was the right thing to do"—Lillard had "bragged . . . about killing somebody's mother and raping her."
We discuss certain aspects of the second confession in greater detail in part I.A, post, because it forms the entire basis of Lillard's claim of instructional error regarding provocation.
Defense Case
Lillard was the sole defense witness. He denied any involvement in the murder or fire.
Lillard and Kissinger's son Kevin were cellmates for four or five days. Kevin introduced Lillard to Kissinger via letter, and asked him to check in on her after his release. When Lillard was released on August 27, 2013, he had Father drive him to Kissinger's house under the guise of possibly renting a room from her. Lillard and Kissinger began a romantic relationship, and saw each other about four times between August 27 and September 4. On one occasion, Lillard helped Kissinger clean the eaves of her home, during which the ladder he was carrying scratched his back (leaving the marks an investigator observed when Lillard was taken into custody). On another occasion, Lillard sat on a rock at the end of Kissinger's driveway wearing sunglasses in the dark, as the neighbor had described at trial.
Lillard denied arguing with Kissinger on September 4, as Evelyn had described. However, he acknowledged trying to delete the many text messages and phone calls he and Kissinger exchanged that morning. In one undeleted message sent at 8:02 a.m., Kissinger wrote: "My sleeping was the issue, but your reactions are why we're where we're at. Your anger, your mean, belittling words, and your insane accusations are uncalled for. Never once did you have the least bit of understanding or compassion; hence, I drew into my shell and curled up in there shuddering and shaking for damn near two days before it became a physical manifestation. Even then, you didn't see fit to lay it off for one second. You weren't going to be satisfied until all the good and right and beautiful was destroyed." Lillard claimed this message referred to an incident a few days earlier when he "thwarted" Kissinger's sexual advances because he "didn't want to go there just yet."
In another text message sent on the morning of September 4, Kissinger wrote: "Congrats. I wouldn't have believed that you could or would push me that far that fast, but you did. And now I guess all is lost. And there is a new emptiness and deep sorrow in my world that I'll carry for the rest of my life. This is the last time I'll bother you. I hope you will find that brain-dead doormat that you've been looking for that will not be hurt by your evil words every time you overreact. I love you more than you'll ever know. These will be the last tears that I shed over you I hope."
Despite these text messages, Lillard testified he spent most of the afternoon of September 4 with Kissinger. After Father drove him to a court hearing in Riverside, Lillard took a bus to Perris, where he met Kissinger around 2:30 p.m. She drove Lillard to get his guitar from Father's house, then returned to Perris where Lillard played guitar for about three hours. They headed to Kissinger's home around 6:30 or 7:00 p.m.
Kissinger's car stalled on her driveway, which Lillard surmised was due to the car being low on gas and the driveway's incline. Kissinger did not have her house key, so Lillard boosted her through her bedroom window, cutting his finger on the window frame in the process. Inside, Kissinger quickly disrobed, wrapped a towel around herself, and opened the door for Lillard. Kissinger was the first to notice Lillard's finger was bleeding, so she took him to the kitchen sink to tend to it, which is how his blood ended up on the faucet and a hallway wall.
Lillard called Father at 10:30 p.m. for a ride so he could be home by his 11:00 p.m. parole curfew. Lillard walked to a nearby gas station so Father would not have to turn around on Kissinger's driveway. Kissinger "was definitely alive" when Lillard left her home.
When Father picked Lillard up at the gas station, Lillard was "upset" because he did not want to leave Kissinger's house—they were feeling amorous, and Lillard believed they would have had intercourse had he not left. Lillard denied pushing or threatening to kill Father.
Lillard testified he wanted to return to Kissinger's home the following morning because the night before he saw her use a substance he thought was methamphetamine, and he wanted to talk her out of using drugs. To convince Father to give him a ride, Lillard said he needed to bring gas for her car and return her keys. Father gave Lillard a ride, and they arrived at Kissinger's home at about 8:28 a.m. Lillard and Kissinger did not call or text each other that morning.
When they arrived, Lillard opened the gate, walked up the driveway, and put gas in Kissinger's car. He knocked on the door to her house, and heard a noise inside. When no one answered, Lillard knocked a little harder, and the door "opened by itself." Still carrying the gas can, Lillard entered Kissinger's home and announced his presence, but she did not respond. Lillard looked around and found Kissinger's naked body facedown on the master bedroom floor next to pieces of her scalp and her dentures. Kissinger was not breathing, and Lillard saw that she had stab wounds on her back. He "freaked out." After being in the home for about six minutes, Lillard heard noises, and left. He shut the driveway gate and got in Father's truck, putting the gas can in the cab instead of the truck bed. Kissinger's house was not on fire when they left.
Lillard initially testified he "obviously went to the police because [he] had nothing to hide." But he later admitted he had not called the police—"they showed up at [his] doorstep." Lillard said he knew he should have called the police, and he did not know why had not done so.
Lillard testified he knew both jailhouse informants from his time in custody, but he denied discussing the details of his case with them.
Lillard admitted he had prior felony convictions for assault with a deadly weapon, domestic violence, and making criminal threats.
Prosecution's Rebuttal Case
In rebuttal, the prosecution impeached Lillard by playing the video recording of his interview with homicide investigators after they detained him on the night of September 5. For example, whereas Lillard testified it was Kissinger who climbed through her bedroom window on September 4, Lillard told investigators it was he who had done so. And whereas Lillard testified he found Kissinger dead on the morning of September 5, he told investigators he spoke with her at her home that morning and "[e]verything was fine when [he] left . . . ."
Jury Verdicts, Prior Convictions, and Sentencing
The jury deliberated for about 80 minutes before finding Lillard guilty of first degree murder, arson of an inhabited structure, and first degree burglary.
Lillard waived his right to a trial on his prior convictions. He admitted he had four prior convictions that constituted both strikes and serious felony priors.
The trial court sentenced Lillard to a determinate term of 20 years, followed by an indeterminate term of 103 years to life. The court imposed various terms of imprisonment, some of which we discuss in part II, post.
DISCUSSION
I. No Instructional Error Regarding Provocation
Lillard contends the trial court erred by refusing to instruct the jury regarding provocation as a means of reducing first degree murder to either second degree murder or voluntary manslaughter. We find no error.
A. Background
As noted, Lillard denied any involvement in Kissinger's death. He therefore based his provocation claim entirely on Doe's testimony about Lillard's alleged confession to him.
Regarding the night of the murder, Lillard told Doe that Kissinger "accused him of ripping her off," so "he left and went . . . drinking." Doe continued:
"So he said he was drinking, getting loaded. And he went back to get his shit back and she was gone. Uh, so he broke in through the window of the master bedroom and said when he was in there, she came home. So he hid in one of the other rooms. And heard her come in and the bathroom water running. She took a shower. And . . . that's when he confronted her [¶] . . . [¶] . . . about his dope. And he said he grabbed her by the hair and put a knife to her throat, told her [']where's his shit[?'] Then he said he wanted to make love with her and they . . . made love. She got up to get his dope and she tried to take off running."
When Doe told Lillard that his description of making love sounded like "rape," Lillard "nonchalant[ly]" responded, " 'It's not rape if it's your old lady.' "
Lillard told Doe that, after the sexual encounter, "he told her to get his dope. And she got up and she had a towel wrapped around her, and she tried to take off." Lillard told Doe he "grabbed her and stabbed her" three or four times. Then Lillard "put the boot to her," meaning he kicked her in the head three or four times. Kissinger was screaming, so Lillard hit her in the head "with something she had in her master bedroom." Lillard said, " 'Well, that shut the bitch up.' " Lillard told Doe he then called Father to ask for a ride, and met him a few blocks away.
During the jury instruction conference, Lillard's counsel requested instructions on provocation as a means of reducing first degree murder to second degree murder (see CALCRIM No. 522) or voluntary manslaughter (see CALCRIM No. 570). The court asked counsel to identify, "specifically," the substantial evidence of provocation on which he was basing his request. Counsel cited Doe's testimony recited above, arguing:
CALCRIM No. 522 states in part: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]"
CALCRIM No. 570 states: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if:
"1. The defendant was provoked;
"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment;
"AND
"3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
"In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.
"[If enough time passed between the provocation and the killing for a person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.]
"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
"I think [the] provocation [is] that she had his dope, I think that's within the purview of the jurors. . . . I think that the People put on their witness, [Doe], to their peril that there's . . . some issue of theft, or something like that, between the two of them, and for [Lillard], that was provocation. So . . . it may not be sufficient, but I think that that's going to be more . . . within the purview of the jurors or the Court of Appeal, so I would ask for it."
The trial court found this showing did "not even come close to raising [an] inference of a scintilla of evidence" of provocation, explaining:
"[I]t is not legally adequate provocation for one who starts the confrontation to claim provocation. That's exactly what's being suggested here by virtue of the defendant breaking into a home and, for the sake of argument, demanding his drugs and not getting them, that that is provocation enough to mitigate the intentional killing of a human being. It is not legally sufficient. There's no other . . .
evidence in this record to remotely suggest that Ms. Kissinger, or anybody for that matter, provoked the defendant in a legally adequate way . . . ."
The trial court instructed the jury regarding the degrees of murder (CALCRIM Nos. 520, 521), including that murder is of the second degree unless the jury finds beyond a reasonable doubt that the defendant committed the murder either (1) with deliberation and premeditation, or (2) by lying in wait.
This included the instruction that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated" and is, thus, second degree murder.
B. Relevant Legal Principles
"First degree murder is an unlawful killing with malice aforethought, premeditation, and deliberation. [Citation.] Malice may be express (intent to kill) or implied (intentional commission of life-threatening act with conscious disregard for life). [Citation.] Second degree murder is an unlawful killing with malice, but without the elements of premeditation and deliberation which elevate the killing to first degree murder. [Citation.] To reduce a murder to second degree murder, premeditation and deliberation may be negated by heat of passion arising from provocation. [Citation.] 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. [Citation.] If the provocation would cause a reasonable person to react with deadly passion, the defendant is deemed to have acted without malice so as to further reduce the crime to voluntary manslaughter." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.)
"The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation] . . . ." (People v. Moye (2009) 47 Cal.4th 537, 549-550 (Moye).) "[T]he victim must taunt the defendant or otherwise initiate the provocation." (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) A claim of provocation "cannot be based on events for which the defendant is culpably responsible." (People v. Oropeza (2007) 151 Cal.App.4th 73, 83 (Oropeza).) " 'If the defendant causes the victim to commit an act which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked. In such case, he is deemed to have acted with malice and would be guilty of murder.' " (People v. Johnston (2003) 113 Cal.App.4th 1299, 1312 (Johnston).)
"[I]n a murder trial, the court, on its own motion, must fully instruct on every theory of a lesser included offense, such as voluntary manslaughter, that is supported by the evidence. [Citation.] Hence, where the evidence warrants, a murder jury must hear that provocation . . . negates the malice necessary for murder and reduces the offense to voluntary manslaughter." (People v. Rios (2000) 23 Cal.4th 450, 463, fn. 10; see People v. Breverman (1998) 19 Cal.4th 142, 162.) " 'Conversely, even on request, the court "has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction." ' " (People v. Avila (2009) 46 Cal.4th 680, 705 (Avila).) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Breverman, at p. 162.) The obligation to instruct on a lesser included offense exists even when that offense conflicts with a defendant's defense strategy. (People v. Koontz (2002) 27 Cal.4th 1041, 1085; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1138 ["even if the defendant testifies to a state of mind inconsistent with the theory of a lesser included offense, substantial evidence may still support an instruction on that offense"].)
" 'On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.' " (Avila, supra, 46 Cal.4th at p. 705.) Although the existence of sufficient provocation is ordinarily a question of fact for the jury, "where the provocation is so slight . . . that reasonable jurors could not differ on the issue of adequacy, then the court may resolve the question." (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.)
C. Analysis
We find no error in the trial court's refusal to instruct the jury regarding provocation. The only evidence Lillard cites on appeal in support of his claim of error is his characterization of Doe's testimony as stating that "Kissinger admitted to taking [Lillard]'s narcotics, then stated she was about to return them to him, but instead, started running away just before the stabbing." We agree with the trial court that this does "not even come close to raising [an] inference of a scintilla of evidence" of provocation.
First, Lillard misstates the record regarding Doe's testimony about Kissinger's intentions. Doe did not testify that Kissinger admitted taking Lillard's drugs or that she agreed to retrieve them. Although Doe initially testified that Kissinger "got up to get [Lillard's] dope and she tried to take off running," Doe clarified that Lillard said "he told [Kissinger] to get his dope," and "she got up and she had a towel wrapped around her, and she tried to take off." The clarified testimony indicates neither an admission nor an agreement. Thus, the record does not support a reasonable inference that Kissinger provoked Lillard by lying to him about her intentions regarding drugs.
Second, regardless of the accuracy of Lillard's characterization of Doe's testimony, it is legally insufficient to establish provocation. The only evidence regarding provocation is that Kissinger sought to escape from Lillard after he broke into her house, ambushed her in the shower at knifepoint, and raped her. This was not provocation "caused by the victim." (Moye, supra, 47 Cal.4th at pp. 549-550.) It was an "event[] for which the defendant is culpably responsible," which cannot support a claim of provocation. (Oropeza, supra, 151 Cal.App.4th at p. 83; see Johnston, supra, 113 Cal.App.4th at p. 1312.) Consequently, substantial evidence did not support giving Lillard's requested instructions regarding provocation.
II. Challenges to Sentencing Conditions
Lillard challenges three conditions of his sentence. We conclude he forfeited two by failing to raise them in the trial court. The third has merit, and we strike the offending language from the trial court's minute order.
At the sentencing hearing, the trial court orally ordered as a term of Lillard's imprisonment that he "participate in any counseling or educational program as deemed necessary by the Department of Corrections." Lillard contends this provision of his sentence is unauthorized because the relevant statute authorizes a court to recommend counseling, not order it. (See § 1203.096, subd. (a); People v. Peel (1993) 17 Cal.App.4th 594, 599 ["there apparently is no . . . requirement the appropriate authorities heed the [court's] recommendation"].) The Attorney General contends Lillard forfeited this challenge because he did not raise it below, when the trial court could have addressed Lillard's semantic distinction. We agree the challenge is forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott) ["Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention."].)
Section 1203.096, subdivision (a) states: "Upon conviction of any felony in which the defendant is sentenced to state prison and in which the court makes the findings set forth in subdivision (b), a court shall, in addition to any other terms of imprisonment, fine, and conditions, recommend in writing that the defendant participate in a counseling or education program having a substance abuse component while imprisoned." (Italics added.)
We are not persuaded by Lillard's contention that his challenge falls within the "unauthorized sentence" exception to the forfeiture rule. (See, e.g., Scott, supra, 9 Cal.4th at p. 354.) The counseling term is not unauthorized because the court did not, as Lillard contends, usurp the Department of Corrections' discretion to determine appropriate (if any) substance abuse counseling for Lillard. To the contrary, the sentencing term expressly leaves this determination to the department. Consequently, Lillard forfeited this challenge.
Also during the sentencing hearing, the court orally "ordered [Lillard], as he has previously been ordered, not to knowingly own, possess, or have under his control any firearm, deadly weapon, ammunition, or related paraphernalia for life." Lillard contends this term is unauthorized because the court is only permitted to notify him that he is prohibited by law from possessing firearms, not to order that he not do so (the significance of this distinction being that a violation of the order could conceivably be punished via contempt proceedings). Lillard further contends the term is overbroad because he is only prohibited by law from possessing firearms, and not the other specified items. The Attorney General contends Lillard also forfeited this challenge by failing to raise it in the trial court. We agree.
We again find unpersuasive Lillard's contention that this challenged condition falls within the unauthorized-sentence exception to the forfeiture rule. During his 123-year-to-life prison term, Lillard is prohibited from possessing "any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive substance, or fixed ammunition, any dirk or dagger or sharp instrument, any pistol, revolver, or other firearm, or any tear gas or tear gas weapon . . . ." (§ 4502.) Lillard should have raised during the sentencing hearing any semantic concerns he had about the manner in which any violation of this prohibition will be enforced. His failure to do so forfeited the issue.
In a related challenge, Lillard contends the trial court's minute order incorrectly memorialized the weapons prohibition because the minute order adds "or any incendiary device" to the list, which the court did not include in the oral pronouncement of sentence. The Attorney General concedes this is error, and we agree. (See People v. Leonard (2014) 228 Cal.App.4th 465, 504 ["The court's oral pronouncement of . . . sentence controls subsequent written judgments and orders."].) Accordingly, we strike "or any incendiary device" from the court's June 2, 2016 minute order. This, of course, does not free Lillard from section 4502's prohibition of his possession of "any explosive substance."
DISPOSITION
We strike "or any incendiary device" from the court's June 2, 2016 minute order. The judgment is otherwise affirmed in all respects.
HALLER, J. WE CONCUR: NARES, Acting P. J. DATO, J.