Opinion
E051155 Super.Ct.No. FSB056120
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN JULIAN RAMIREZ et al., Defendants and Appellants.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Julian Ramirez. Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant Omar Ramirez.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed with directions.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Julian Ramirez.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant Omar Ramirez.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise.
Defendants are two brothers, Jonathan Julian Ramirez and Omar Ramirez (Jonathan and Omar). During an encounter at a bar in 2006, defendants attacked and killed Enrique Bermudez (Bermudez), a 72-year-old man who had asked them to be more respectful to their stepfather who was with them at the bar. Defendants fled to Mexico the next day. After some years, they were extradited and returned to the United States to stand trial in 2010.
A jury convicted each defendant of one count of first degree murder against Bermudez (§ 187, subd. (a)) and one count of assault by means likely to produce great bodily injury against Ruben Ramirez (Ruben), who tried to intervene during defendants' attack. (§ 245, subd. (a)(1).) The court sentenced both defendants to prison terms of four years plus 25 years to life.
On appeal, Jonathan and Omar both assert six issues involving sufficiency of evidence for first degree murder, instructional error, prosecutorial error, and custody credits. Omar separately raises a seventh issue regarding aider and abettor liability. We reject defendants' contentions and affirm the judgment. We remand to allow the trial court to recalculate custody credits.
II
FACTUAL BACKGROUND
Bermudez was a regular patron of the La Veranda bar and restaurant. He often came for company and conversation. The assistant manager described Bermudez as acting like a father toward the employees and assisting them in various ways.
The subject events occurred on the evening of Friday, May 12, 2006, and after midnight at approximately 1:00 a.m. on Saturday, May 13, 2006, when Bermudez and defendants were all in the bar section of the restaurant.
Mother's Day was Sunday, May 14, 2006.
Manuel Cabrera Gutierrez (Cabrera) testified that Bermudez initiated a conversation with him at the bar. Bermudez said he was not drinking alcohol. Cabrera thought he was drinking orange juice.
While Cabrera and Bermudez were talking, defendants and their stepfather entered the bar with two women. After a while, the women left. The three men talked with one another and bought a round of beers for everyone.
Things were friendly until Bermudez became upset because he thought defendants were behaving disrespectfully and using profanity toward their stepfather. He told Cabrera he intended to reprove defendants. After the stepfather left the bar, Bermudez approached defendants and Cabrera heard him say, "I believe you guys-you're offending the old man that left, and I don't find it right."
Jonathan, the heavier of the two defendants, stood and shoved Bermudez. Bermudez fell backwards. Cabrera tried to stop Jonathan and told him it was not a fair fight because Bermudez was so much older. Omar approached Cabrera from behind and tried to strike him but Cabrera dodged the blow. Cabrera released his hold on Jonathan and grabbed Omar.
According to Cabrera, Jonathan began punching and kicking Bermudez in the head and upper body as he lay on the floor. Cabrera was shocked and released Omar. Omar grabbed a bar stool and began striking Bermudez in the face and stomach. Meanwhile, Jonathan provoked a fight with Ruben, another patron. Omar then threw a bar stool at Ruben.
According to Ruben, when he told defendants to stop hitting Bermudez, Omar responded, "you want some too." Omar attacked Ruben, hitting Ruben in the head with his hands and feet. The paramedics revived Ruben on the floor of the bar.
The assistant manager recalled Bermudez was eating dinner and drinking Bud Light beer earlier in the evening. While Bermudez was in the bar area and defendants were "talking bad," Bermudez asked them not to use such language in the presence of ladies. A second time he asked them not to be so loud and they started talking back at him angrily.
After the stepfather left, Jonathan began shoving Bermudez. The assistant manager tried to intervene and she told a waitress to call 911. She also asked the other bar patrons to help. Jonathan was hitting Bermudez and almost hitting the assistant manager. Then Jonathan straddled Bermudez on the ground and punched him. Bermudez tried to fend off the blows with his hands. Omar was fighting with Ruben. Both defendants hit Bermudez with bar stools for more than 20 minutes. The assistant manager followed defendants outside and yelled that they had killed Bermudez.
Defendants' mother testified that defendants lived with her. Because she did not permit alcohol in her house, she drove defendants and her husband to La Veranda at 10:00 p.m. on Friday night so they could drink. Defendants were already drunk when they arrived at the bar. Defendants' mother did not enter the bar because she was wearing pajamas. She dropped the men off and went home. She returned about 1:00 a.m. and went inside looking for them, accompanied by Jonathan's girlfriend.
In the bar, people were singing and dancing. Defendants' mother asked the waitress not to serve defendants any more alcohol. Then defendants' mother got mad and went outside. Shortly after she left, defendants' stepfather joined her outside and got in the car. Defendants followed and said, "Let's go, they are fighting." A woman emerged screaming in Spanish and yelling on a phone.
Defendants and their mother and stepfather went home. Defendants' stepfather was very drunk and falling down. Defendants were also drunk and their mother told them to leave the house that evening. She did not see any blood on them and she did not see or talk to her sons for two years after that night.
Defendants' stepfather testified that he remembered nothing about the events of May 12 and 13, 2006. He did not remember telling a police officer that he was at La Veranda but he did not want to get involved in a fight. He also did not recall saying that Jonathan and Omar had beaten him up when they returned home and their mother kicked them out of the house.
On May 13, 2006, defendants called their cousin to say their van had broken down in Los Angeles. She went to meet them at the Los Angeles location that afternoon and they asked her to get rid of the van for them. They removed some bags from the van and walked away down the street.
Bermudez died from multiple blunt force injuries. His injuries included a broken jaw, nose and ribs, multiple lacerations, loose teeth, and hemorrhaging around the eyes, scalp, brain, neck, and torso.
III
SUFFICIENCY OF EVIDENCE
Jonathan and Omar contend there was insufficient evidence to establish defendants acted with premeditation and deliberation as required for a conviction on first degree murder. Instead, defendants characterize what occurred as a sudden spontaneous eruption of violence that belies any argument defendants acted with malice aforethought.
We apply the well-established standard of review: "In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The jury, not the appellate court, must be convinced of the defendant's guilt beyond a reasonable doubt. (Ibid.)
In People v. Anderson (1968) 70 Cal.2d 15, our Supreme Court distilled three basic "categories" of evidence-planning activity, motive, and manner of killing-for analyzing premeditation and deliberation. (See id. at p. 27.) Anderson, at pages 26-27, analyzed first degree murder by analyzing these three categories of evidence, which the court had developed as a gloss on the previous case of People v. Thomas (1945) 25 Cal.2d 880, 898, 900, 901: "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation 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' (People v. Thomas, supra, 25 Cal.2d 880, at pp. 898, 900, 901); (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2)."
In People v. Solomon (2010) 49 Cal.4th 792, 812 (Solomon), the California Supreme Court pointed out that the three categories provide "one framework for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation." The high court has further cautioned that the Anderson categories are only a set of "guidelines" for analysis. (People v. Sanchez (1995) 12 Cal.4th 1, 32 ["We have recently explained that the Anderson factors do not establish normative rules, but instead provide guidelines for our analysis."].) In particular, the court has emphasized that the three categories themselves do not constitute a substitute for, or a rewriting of, the actual elements of first degree murder. (People v. Thomas (1992) 2 Cal.4th 489, 517; People v. Prince (2007) 40 Cal.4th 1179, 1253; People v. Halvorsen (2007) 42 Cal.4th 379, 420.) The Anderson categories do not constitute some simplistic set of three elements, all of which must be present before a reviewing court may find sufficient evidence to uphold a first degree murder conviction.
Solomon's recent discussion of premeditation and deliberation emphasizes the extent of reflection on the decision to kill: "Defendant overlooks a core principle that has guided appellate courts in assessing the sufficiency of the evidence of premeditation and deliberation for over 60 years: 'The true test is not the duration of time as much as it is the extent of the reflection.'" (Solomon, supra, 49 Cal.4th at pp. 812-813.) The speed by which such reflection takes place may not be as short as the flicker or twinkling of an eye. (See id. at p. 829.) But premeditation and deliberation are present if the jury could find a sufficient extent of reflection on the decision to kill. (See id. at pp. 812-813.)
In People v. Perez (1992) 2 Cal.4th 1117, there was sufficient evidence of premeditation and deliberation where the court held that defendant's entering a house and obtaining a steak knife from a kitchen was properly indicative of planning activity, even in the case of brutal and frenzied knife attack. (See id. at p. 1122.) In People v. Lewis (2009) 46 Cal.4th 1255, the court said the "additional act" of slashing the victim's throat after the victim had been "strangled to the point of unconsciousness" was "'indicative of a reasoned decision to kill.'" (Id. at p. 1293.) In People v. Lunafelix (1985) 168 Cal.App.3d 97, 102, the victim's effort to retreat, posing no threat, offered evidence of premeditation and deliberation.
In the present case, the evidence showed that Bermudez twice asked defendants to control their behavior. A jury could have reasonably concluded that, during the interval, defendants may have been brooding over their response to Bermudez's first request, causing them to respond violently when he approached them the second time. Furthermore, as the attack began and as it escalated, at least three people tried to stop defendants. One witness estimated the attack lasted as long as 20 minutes, during which time Bermudez offered no resistance while defendants first hit and kicked Bermudez and then armed themselves with bar stools to increase the violence of the assault.
Although defendants' conduct seems senseless, the absence of a "rational" motive does not negate premeditation and deliberation. Even if defendants overreacted because they were irrationally offended by Bermudez, their anger at him was sufficient evidence of motivation. (People v. Lunafelix, supra, 168 Cal.App.3d at p. 102; People v. Miranda (1987) 44 Cal.3d 57, 87.)
Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could find defendants acted with premeditation and deliberation necessary to sustain a finding of first degree murder.
IV
AIDER AND ABETTOR LIABILITY
In criminal cases, "'[a] trial court has a duty to instruct the jury "sua sponte on general principles which are closely and openly connected with the facts before the court."'" (People v. Gutierrez (2009) 45 Cal.4th 789, 824; see People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) Omar argues that the court erred by giving an outdated version of CALCRIM No. 400 on aiding and abetting liability.
The court instructed the jury: "A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [Emphasis added.]" Omar maintains the court should have given CALCRIM No. 400 as modified in April 2010: "A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." The purported distinction between the two versions is almost undetectable. Assuming that finding a person "equally guilty" is different than finding a person "guilty," we still conclude any instructional error was harmless.
In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 (Samaniego), the appellate court commented that former CALCRIM No. 400's direction that a person is "equally guilty" is "generally correct in all but the most exceptional circumstances." Omar, having failed to request modification or clarification, forfeited any objection to an instruction that was "generally an accurate statement of the law." (Id. at p. 1163.)
Nevertheless, the instruction did not cause prejudicial error or, by extension, ineffective assistance of counsel. In Samaniego, the court held that giving CALCRIM No. 401 mitigates any problem caused by the language "equally guilty" in CALCRIM No. 400: "The jury also necessarily found that appellants acted deliberately and with premeditation. . . . It received aiding and abetting instructions, including CALCRIM No. 401, which stated that to prove guilt as an aider and abettor the prosecution was required to prove '1. The perpetrator committed the crime; 2. The defendant knew that the perpetrator intended to commit the crime; 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; AND 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.' [¶] It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required. (People v. Hughes (2002) 27 Cal.4th 287, 371 . . . . )" (Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166; People v. Lee (2003) 31 Cal.4th 613, 624.)
The court also gave CACRIM Nos. 203 and 521 which bear on defendants' joint liability.
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Furthermore, even if the "equally guilty" language in the former version of CALCRIM No. 400 was an incorrect statement of the law, we nonetheless conclude that giving it here was harmless under even the most stringent harmless error standard. (Chapman v. California (1967) 386 U.S. 18, 24.) The evidence that Jonathan and Omar were joint perpetrators in Bermudez's death is overwhelming. Three disinterested witnesses-Cabrera, Ruben, and the assistant manager-all testified that the two brothers, acting together, beat Bermudez fatally. Even if Jonathan initiated the attack, both brothers participated fully. It would actually be difficult to conclude that either one of defendants was aiding the other, as they were both full and equal participants in causing Bermudez's death.
Based on our independent review, we conclude the court correctly instructed the jury based on CALCRIM No. 400's direction that a person is "equally guilty," given the unexceptional circumstances of this case. (Samaniego, supra, 172 Cal.App.4th at p. 1163.)
V
PROSECUTORIAL ERROR
Both defendants argue the prosecutor committed prejudicial error by commenting on their failure to testify at trial. Defendants base their argument on the following statements by the prosecutor:
"Ladies and gentleman, the evidence in this case has been presented to you in such a fashion that it is guilty as to first-degree murder and as to assault with a deadly weapon or assault by means likely [sic]. Were these defendants drinking? Yeah, everybody knows that. Were they drunk? Well that depends. Could they have been drunk? Yes. Were they drunk to the point that they didn't know what they were doing? No evidence of that, none whatsoever. There was no expert that took the stand. There was not one person that said when I talked to Omar, when I talked to Jonathan they just didn't know what the heck they were doing. None. No evidence whatsoever. [¶] So when you consider whether or not these two defendants knew what they were doing, whether they made choices, understand that you have no evidence that they weren't making those choices. There's been none."
Defendants ask this court to interpret the prosecutor's statements as commenting obliquely on defendants' failure to testify about how drunk they were, causing a violation of their Fifth Amendment privilege against self-incrimination. (Griffin v. California (1965) 380 U.S. 609, 614-615; People v. Lewis (2001) 25 Cal.4th 610, 670.)
The first obstacle to defendants' argument is they waived any claim of error by not objecting and by not seeking a curative admonition. (People v. Turner (2004) 34 Cal.4th 406, 421; People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Defendants' delayed claim of ineffective assistance of counsel also fails because there was no error or any error was not prejudicial. There is no reasonable likelihood that the jury interpreted the prosecutor's remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Morales (2001) 25 Cal.4th 34, 44.)
A prosecutor may properly comment on the state of the evidence and the failure of the defense to present material evidence or witnesses. (People v. Lewis, supra, 25 Cal.4th at p. 670.) Even though there was evidence presented that defendants were drinking or drunk, what the prosecutor said expressly was that none of the witnesses and no expert offered the view that defendants were too drunk to understand their actions. The prosecutor said nothing about defendants not testifying. Furthermore, any error in the prosecutor's brief argument on this point was harmless beyond a reasonable doubt. (People v. Hovey (1988) 44 Cal.3d 543, 572.)
We reject defendants' related claims of prosecutorial error and ineffective assistance of counsel.
VI
VOLUNTARY MANSLAUGHTER
The most substantial argument offered by both defendants is that the trial court erred by refusing to instruct the jury on the lesser included offense of voluntary manslaughter. (People v. Barton (1995) 12 Cal.4th 186, 201-202.) Both defendants urge the court should have given CALCRIM No. 570, a killing based on a sudden quarrel or heat of passion. (§ 192, subd. (a).) Omar also contends the court should have given CALCRIM No. 571, a killing based on imperfect self-defense. (People v. Lasko (2000) 23 Cal.4th 101, 108.)
"California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence." (Breverman, supra, 19 Cal.4th at pp. 148-149.) The correlation is the trial court may refuse to instruct on a lesser included offense if substantial evidence does not support the instruction. (People v. Daniels (1991) 52 Cal.3d 815, 868.) We conduct an independent review. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
Breverman, supra, 19 Cal.4th at page 163, summarizes the basic principles governing the first type of voluntary manslaughter:
"An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an '"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."' (People v. Berry (1976) 18 Cal.3d 509, 515, quoting People v. Valentine (1946) 28 Cal.2d 121, 139; People v. Borchers (1958) 50 Cal.2d 321, 328-329.) '"[N]o specific type of provocation [is] required . . . ."' ([People v. Wickersham (1982)] 32 Cal.3d 307, 326, quoting People v. Berry, supra, 18 Cal.3d at p. 515.) Moreover, the passion aroused need not be anger or rage, but can be any '"'[v]iolent, intense, high-wrought or enthusiastic emotion'"' (Wickersham, supra, at p. 327, quoting People v. Berry, supra, 18 Cal.3d at p. 515) other than revenge (People v. Valentine, supra, 28 Cal.2d at p. 139). 'However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . .' (Wickersham, supra, 32 Cal.3d at p. 327.)"
Here the evidence established that, when Bermudez chided defendants for being disrespectful, they overreacted spectacularly. Jonathan knocked Bermudez down and both defendants began furiously hitting and kicking Bermudez and beating him with bar stools in spite of the efforts by the other bar patrons and employees to stop the attack.
None of the evidence showed that Bermurdez had provoked defendants sufficiently to cause an ordinary person of average disposition to act from passion rather than from judgment. We reject defendants' attempts to characterize Bermudez as meddling in defendants' private affairs, giving sufficient reason for their extreme response. (People v. Oropeza (2007) 151 Cal.App.4th 73, 83.) It was certainly risky for a man in his 70's to reprimand two younger inebriated men. But, instead of brushing off Bermudez's well-intentioned comment, defendants exploded into irrational violence. Furthermore, at any time during the course of beating the unresisting Bermudez, defendants could have stopped and left the bar rather than continuing to inflict the fatal injuries.
We also reject Omar's independent argument that the court should have given CALCRIM No. 571, the second type of voluntary manslaughter based on imperfect self-defense: "Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. (In re Christian S. (1994) 7 Cal.4th 768, 773, 783; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270.) When imperfect self-defense applies, it reduces a homicide from murder to voluntary manslaughter because the killing lacks malice aforethought. (People v. Blakeley (2000) 23 Cal.4th 82, 87-88; People v. Flannel (1979) 25 Cal.3d 668, 674, disapproved on another point in In re Christian S., supra, at p. 777.)" (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178.)
No evidence demonstrated that Omar had an actual but unreasonable belief that he was in imminent danger. There was no evidence at all from any witness that Bermudez threatened Omar or even tried to defend himself. Omar offers only two citations to testimony from a waitress who said the two brothers were hitting Bermudez while Cabrera tried to separate them and that she saw some people using chairs as weapons. There was no testimony that Bermudez hit anyone or used a chair to defend himself. The only testimony about Bermudez's response was from the assistant manager who said he raised his hands to fend off the blows. Substantial evidence did not support an instruction on imperfect self-defense.
Finally, any instructional error was harmless: "Appellate review under Watson . . . focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. Accordingly, a determination that a duty arose to give instructions on a lesser included offense, and that the omission of such instructions in whole or in part was error, does not resolve the question whether the error was prejudicial. Application of the Watson standard of appellate review may disclose that, though error occurred, it was harmless." (Breverman, supra, 19 Cal.4th at pp. 177-178.)
Based on the strong evidence of first degree murder and the utter lack of evidence of voluntary manslaughter, it is not reasonably probable the jury would have convicted defendants on the lesser included offense of voluntary manslaughter. In the absence of prejudicial error under state law, defendants also cannot now contend there was any violation of their constitutional rights. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5.)
VII
PROVOCATION
An instruction on the type of provocation needed to reduce first degree murder to second degree murder is a pinpoint instruction. Defendants admit they forfeited any claim of error for failing to request a pinpoint instruction on provocation. (People v. Rogers (2006) 39 Cal.4th 826, 878-800.) Instead, defendants claim ineffective assistance of counsel and violations of the Sixth and Fourteenth Amendments.
In order to establish a claim of ineffective assistance of counsel, defendants must demonstrate counsel's performance was deficient, measured by an objective standard of reasonableness, and that defendants suffered prejudice:
'"To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that this deficient performance caused prejudice in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686; see also People v. Wader (1993) 5 Cal.4th 610, 636.) If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient. (Strickland v. Washington, supra, 466 U.S. at p. 697.)' (People v. Kipp (2001) 26 Cal.4th 1100, 1122-1123.)
"In determining whether an attorney's conduct so affected the reliability of the trial as to undermine confidence that it 'produced a just result' (Strickland v. Washington, supra, 466 U.S. at p. 686), we consider whether 'but for' counsel's purportedly deficient performance 'there is a reasonable probability the result of the proceeding would have been different.' (People v. Cash (2002) 28 Cal.4th 703, 734; see Strickland v. Washington, supra, at p. 694.)" (People v. Sapp (2003) 31 Cal.4th 240, 263.)
As we have already discussed in related contexts, there was not substantial evidence of provocation to allow a jury to find defendants formed an intent to kill as a direct response to Bermudez's provocation rather than with premeditation and deliberation. (People v. Ward (2005) 36 Cal.4th 186, 214-215; People v. Oropeza, supra, 151 Cal.App.4th at p. 83.) Because there was no evidence whatsoever of provocation by Bermudez, there was no ineffective assistance of counsel in failing to request an instruction about provocation. (People v. Frye (1998) 18 Cal.4th 894, 985.) Moreover, the court instructed the jury that, if the prosecution failed to prove deliberation and premeditation because defendants acted "rashly, impulsively, or without careful consideration," the crime was second degree murder. (CALCRIM No. 521.) The jury convicted defendants of first degree murder. The jury would not have convicted defendant of less than first degree murder if instructed on provocation. We wholly reject this claim of error.
VIII
DISPOSITION
All the parties agree the case should be remanded for further trial court proceedings to award Jonathan two additional days of presentence custody credit and to calculate the additional custody credits for both defendants based on the time they spent in custody in Mexico awaiting extradition to the United States. (In re Watson (1977) 19 Cal.3d 646, 654; § 2900.5.)
We remand for calculation of custody credits. Otherwise, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
McKinster
Acting P.J.
Miller
J.