Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC335927
Rushing, P.J.
I. Statement of the Case
A jury convicted defendant Dung Huu Tran of first degree murder and found that he personally used a handgun to commit the crime. (Pen. Code, §§ 187, 189, 12022.5, subd. (a), 1203.06.) The court sentenced him to a term of 25 years to life plus a consecutive four-year term for the use of a handgun. On appeal from the judgment, defendant claims that defense counsel rendered ineffective assistance in failing to request instructions on the lesser included offense of voluntary manslaughter. He also claims that the court erred in failing to define provocation for the purpose of reducing murder from first to second degree and failing to explain how voluntary intoxication can be considered in determining the sufficiency of provocation.
All further unspecified statutory references are to the Penal Code.
We find no merit to these claims and affirm the judgment.
II. Facts
On December 10, 2003, defendant went to his friend Frank Shelton’s house, and over the course of several hours, they drank beer and smoked crack cocaine. Defendant said he was unhappy, sad, and depressed because his wife, Tram Vo, was working in a restaurant, and he thought she was seeing another man, although she denied it. At one point, defendant spoke on the phone to Vo and a man named Son. Defendant said that Son challenged him and said that if he wanted anything, they would have to meet. According to Shelton, defendant sounded shocked and frustrated. He said he was upset by the way Son was talking to him and wanted to meet him.
Defendant asked Shelton if he could borrow a gun to threaten and scare Son. Shelton suggested a different weapon, but ultimately called a friend, who came by with a box containing a gun and a loaded clip. Shelton knew nothing about guns. Privately, the man showed Shelton how to insert and remove the clip and use the slide to advance the bullets. He told Shelton to be careful because the gun was loaded. Shelton then showed defendant how to insert and remove the clip. According to Shelton, defendant was nervous holding the gun, frustrated, and angry. Defendant then put the gun and clip inside his laptop case and left, saying he was headed for Vo’s restaurant. Shelton told him to be careful. Defendant did not appear intoxicated when he left.
Around midnight or shortly thereafter, defendant’s mother, Nga, heard defendant say, “[M]om, something [is] happening to my wife.” Nga woke defendant’s sister, Lya, and asked her to see what the commotion was about. Defendant was rushing around in the hallway, very agitated and repeatedly saying to call 911. Nga told him to call. Nga and Lya saw Vo on the bed in the master bedroom. Lya saw blood coming from her mouth and tried to wake her up.
Defendant came into the room. He was on the phone with a 911 operator. He was hysterical and screaming for help. He gave his address to the operator and said that his wife was conscious but bleeding from her mouth. He could not tell if she was breathing. He said that someone had shot her, but he did not know where, when, or how it had happened. The operator gave him CPR instructions, which he followed, but he could not see or hear any breathing. Defendant then gave the phone to Lya, who also tried to revive Vo. When defendant was back on the phone, the operator asked if there was a gun in the house. Defendant said no. Within a short time police and emergency personnel arrived.
The 911 call was recorded, and the tape was admitted into evidence and played for the jury.
At that time, defendant was in the driveway holding a phone. He was hysterical, and his clothes were bloody. Police found Vo on the bed. She was dead. Defendant said he did not know what had happened. There was a trail of blood from the garage door, through a hallway, into the bedroom. There were substantial pools of blood in the hallway and two bloody handprints on the carpeted areas. According to the prosecution’s expert, blood had oozed directly from the source onto the carpet. The expert opined that the bloodstains were consistent with a bleeding body being dragged down the hall.
Officer Jaime Almaraz of the San Jose Police Department interviewed defendant at the house. Defendant said he had spoken to Vo around 10:00 p.m. and expected her home around midnight. He went to bed. Later, he woke up, saw blood coming from her mouth, and called 911. He tried to resuscitate her and then went outside to wait for help.
Detective Raymond Barrera also interviewed defendant at the house. Defendant cried at times. He said that he had spent most of the day and evening with Shelton. He said he drank about five beers, spoke to Vo around 10:00 p.m., and went home around 10:45 p.m. He said Vo usually got home around 12:15 a.m. He got into bed and fell asleep. The next thing he knew was that the bed was shaking, and he woke up. Vo was next to him. Defendant denied that he and Vo were having marital problems. However, everyone knew that they had problems, had separated, and had reunited during the last two weeks.
The interview was recorded, and the tape was admitted into evidence and played for the jury.
Nga testified that sometime around 10:00 p.m. she heard the garage door open. She heard the garage door again sometime after midnight. Shortly thereafter, she heard defendant yelling about Vo. She did not hear any arguing or gunshots.
After these interviews, defendant went to the police station and was interviewed again. For over half the interview, defendant reiterated his previous story, acting as if he did not know how Vo was injured or killed and claiming that he simply woke up and found her bleeding from the mouth.
The interview was also taped, and the tape was played for the jury.
However, at one point, he said he would tell the truth if he could go home. Defendant said he was depressed. He said that Shelton told him that he had just bought a gun, and defendant asked to borrow it. Shelton tried to dissuade him but brought it out and gave it to defendant. Defendant said he tested the gun, cocking it with the clip out and pulling the trigger until he heard it click. He put the gun into his laptop case and then left. He said that at home, he put the gun on a table in the bedroom and went to bed. When Vo came home, he woke up, and they argued about her calling a man on her phone. Defendant said that Vo saw the gun and grabbed it. He grabbed it back, and they struggled for it back and forth. He said he removed the clip, and they continued to struggle for it. Vo said that if he could not put the past behind him, she wanted to die. He then pushed her back onto the bed. At that point, he lost control. Thinking that the gun was empty because he had removed the clip, he pulled the trigger, and it fired. He then left the house, tossed the gun into his neighbor’s yard, and called the police. He claimed it was all an “accident.” He did not know where the shell casing was. He said that the pools of blood in the hallway came from his hands and pants.
During the interview, police located the gun in the backyard of a house across the street from defendant’s house. The clip was in it, but no bullet was in the chamber. The prosecution’s gun expert testified that normally, if a clip is in a gun when it is fired, a new bullet would automatically enter the chamber. Because the clip was in the gun but there was no bullet in the chamber, the expert posited three possible explanations: (1) when the gun was fired, the clip was out, a bullet was in the chamber, and the clip was put back in later; (2) when the gun was fired, the clip was in, and after, the bullet was removed from the chamber; or (3) the clip was in, but after the gun was fired, it jammed, preventing a bullet from entering the chamber. The expert testified, however, that the gun worked, and there was no evidence of jamming. Police did not find any shell casing in the house.
An examination of Vo’s body revealed gunshot residue on her hand, indicating that it was as close as six inches away from the gun when it was fired. Vo died from a close-range gunshot to her head, which would have immediately incapacitated her.
The Defense
Defendant testified that in the fall of 2003, he and Vo were having marital problems and argued. Both had lost their jobs and were having financial difficulties, they had two small children, and defendant was using crack cocaine on a daily basis. They separated and lived apart for a few months. He started seeing a woman, with whom he had sex and took drugs, and remained in touch with her up to the time of the shooting. In November 2003, he and Vo reunited, and she took a job at a restaurant to help support the family.
A few days before he shot Vo, defendant discovered that one night, Vo had called a man named Son Nguyen on her cell phone, and they spoke for three hours. He became angry and jealous. He argued with Vo about the call and threw the bedroom phone against the wall, breaking it. Vo said that she and Son were just friends, but defendant did not believe her. By this time, defendant had started a new job but was spending $200 a week on drugs. He also wanted Vo to quit her waitress job, which had made him feel unhappy and ashamed.
The day of the shooting, defendant told Vo he was going to work, took the money she had earned the night before, and left with his laptop. However, he went to Frank Shelton’s home to drink beer and smoke crack. Although he told Vo he had quit taking drugs, he continued to do so, and his habit and financial situation made him sad and depressed. Around 8:00 p.m., he used his laptop to check Vo’s cell phone records. He remembered her call to Son, and it rekindled his anger and jealously. Around 9:00 p.m., he called Vo at the restaurant and reminded her to quit. She agreed to do so. They also spoke again about the call to Son. She told him that they were just friends. She said that Son was there if defendant wanted to talk to him. Defendant felt that Son was challenging him, and when he got off the phone, he immediately asked Shelton for a gun so that he could confront and scare Son away from Vo.
Shelton tried to dissuade defendant for a while, but ultimately Shelton’s friend came over with a gun. Defendant had no experience with guns, and Shelton showed him how to remove and load the clip, saying the gun was safe when the clip was out. Defendant inserted the clip into the gun, put the gun in his laptop case, and left. He testified that he headed for the restaurant to confront Son with the gun, but he changed his mind and went home because he “was a coward and [had] chicken[ed] out.”
Defendant later backtracked, testifying that he did not intend to initially confront or scare Son with the gun. He said he planned to leave the gun in his car, confront Son, and retrieve the gun only if Son did something. Defendant knew nothing about Son but nevertheless felt he needed a gun because Son might be a gang member.
At home, defendant remained angry and jealous. He brought the laptop case into the bedroom. Initially, he testified that he intended to confront and scare Vo with the gun so she would stop seeing Son. He wanted her to know he was serious. However, defendant later testified that he intended to talk to Vo without the gun and use it only if Vo escalated the argument. He went to bed with his clothes on and fell asleep.
Vo came home later that night after her shift at the restaurant. Defendant woke and asked her about quitting and Son. When Vo said she did not want to talk, defendant became enraged, retrieved the gun, removed the clip, and threatened to confront Son with it if she did not talk. Defendant said that Vo panicked and lurched for the gun, and they struggled for it back and forth. At one point, defendant pushed her back onto the bed and fell on top of her. They were yelling at each other. Vo was upset and asked, “You want me to die... ?” Defendant then snatched control of the gun. His finger was on the trigger. He did not intentionally pull the trigger. It fired accidentally. He did not know that there was a bullet in the chamber and did not think it was loaded. He thought it was safe. He did not intend to kill or harm Vo.
Defendant denied telling police that he was trying to scare Vo or that he intentionally pulled the trigger. He acknowledged that during his interview, he indicated that he might have pulled the trigger on purpose, but he did not mean that he had done so. He said the police forced him to say that. He meant only that he did not intentionally pull the trigger.
After the shooting, defendant tried to call 911, but the phone was broken. He screamed for Nga to call 911. He then put the clip back into the gun, left to throw the gun into his neighbor’s yard, and returned to call 911. He followed CPR instructions from the operator and got blood all over his hands and clothing. He did not know how so much blood got into the hallway but said he made some trips through the hallway. He denied moving Vo’s body.
Concerning the gun, defendant did not know whether Shelton had recently bought the gun, and he could not recall whether he told police that Shelton had just bought it. Defendant also denied that he tested the gun at Shelton’s by removing the clip, cocking the gun, and pulling the trigger until he heard it click. He said he lied about doing so because he wanted to make the police think that he had done everything he could to make sure the gun was safe. He also said that after the shooting, he put the clip back in the gun because he did not want the police to find evidence of the gun in the house.
Defendant admitted that he lied to the 911 operator and the officers who first spoke to him at his home. He said he lied to the operator because he was afraid to admit the shooting. He said he lied to the officers at his home because he wanted to avoid going to jail. Defendant also said that he initially lied to the officers at the station and delayed telling them the truth because he thought he would be able to go home.
A defense expert opined that the blood pools in the hallway were consistent with defendant’s story about performing CPR and traveling back and forth down the hallway.
III. Ineffective Assistance of Counsel
Defendant contends that defense counsel rendered ineffective assistance in failing to request instructions on the lesser included offense of voluntary manslaughter on the theory that Vo had provoked him, and he shot her in the heat of passion.
To obtain reversal due to ineffective assistance, defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 596.) Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Second, defendant must show that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Defense counsel was not asked, and the record does not reflect, why he did not request instructions on voluntary manslaughter. Thus, we shall reject defendant’s claim unless the record establishes that counsel’s omission was unreasonable as a matter of law.
A defendant commits voluntary manslaughter and not murder when he or she unlawfully kills “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “ ‘Manslaughter is the unlawful killing of a human being without malice.’ (§ 192.) ‘When a killer intentionally but unlawfully kills in a sudden quarrel or heat of passion, the killer lacks malice and is guilty only of voluntary manslaughter.... [T]his is also true of a killer who, acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion.’ [Citations.]” (People v. Timms (2007) 151 Cal.App.4th 1292, 1296, quoting People v. Lasko (2000) 23 Cal.4th 101, 104; see also People v. Rios (2000) 23 Cal.4th 450, 460-461.)
Voluntary manslaughter under the heat-of-passion theory has both subjective and objective components. (People v. Cole (2004)33 Cal.4th 1158, 1215-1216.) The defendant must actually, subjectively, kill the victim in the heat of passion, that is, anger, rage, or any violent, intense, high-wrought or enthusiastic emotion, except revenge, including fear of death or bodily harm. (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253; People v. Lasko, supra, 23 Cal.4th at p. 108; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704-1705.) However, to negate malice, that defendant’s high-wrought emotion must have an objectively reasonable basis. There must be evidence that the victim provoked the defendant, and that provocation must be sufficient to cause an “ ‘ “ ‘ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than judgment.’ ” ’ [Citation.]” (People v. Lasko, supra, 23 Cal.4th at p. 108.) In other words, the victim must do something, or the defendant reasonably believe that the victim did something, that would naturally arouse the passions of an ordinarily reasonable person. (People v. Steele, supra, 27 Cal.4th at p. 1252; People v. Lee (1999) 20 Cal.4th 47, 59.)
“[T]he existence of ‘any evidence, no matter how weak,’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘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.” (People v. Breverman (1998) 19 Cal.4th 142, 162, emphasis omitted.) There is no need to instruct on heat of passion or imperfect self-defense “when the evidence is ‘minimal and insubstantial.’ ” (People v. Barton (1995) 12 Cal.4th 186, 201.)
Defendant claims that there was substantial evidence that the killing occurred in the heat of passion due to sufficient provocation based on Vo’s “infidelity.” Therefore, as a defense to the murder charges, defense counsel should have sought instructions on voluntary manslaughter. Notwithstanding defendant’s own testimony that the shooting was accidental and unintentional and that he did not know that the gun was loaded, defendant notes Shelton’s testimony that defendant was angry, sad, and upset because he believed Vo was having an affair; and after defendant spoke to Vo on the phone, he asked Shelton for a gun.
Defendant also notes his own testimony that (1) he was angry and jealous because he discovered Vo’s call to Son and thought she was having an affair; (2) they argued on the phone that night; (3) she refused to discuss the matter when she got home later that night; and (4) after the shooting, he was hysterical, crying, moaning, and screaming.
We agree that this evidence, if believed, could establish the subjective component for heat-of-passion voluntary manslaughter, in that, jurors could find that when he shot Vo, defendant was under the influence of strong emotions and acted from passion rather than judgment.
However, the only evidence of provocation is that in the days before the shooting, defendant discovered that Vo had had a long telephone call at night with Son. Although defendant suspected an affair, Vo denied it and said she and Son were just friends. On the day of the shooting, defendant spoke to Vo from Shelton’s house. She reiterated that she and Son were just friends and invited defendant to come to the restaurant to talk to Son himself. Later that night, when she got home from work, she did not want to discuss her job or Son.
Given the evidence of Vo’s conduct, defense counsel reasonably could have thought that there was insufficient evidence to establish the objective component for heat of passion. Indeed, although the trial court had a sua sponte duty to instruct on that theory if there was substantial evidence to support it (see People v. Lee, supra, 20 Cal.4th at p. 61 [duty to instruction on lesser included offenses]; People v. Rios, supra, 23 Cal.4th 450, 464 [voluntary manslaughter is lesser offense of murder]), the court did not instruct on voluntary manslaughter, and defendant does not now claim that the court erred in failing to do so.
Moreover, we find the evidence of provocation to be insufficient to warrant such instructions. That Vo had once spoken to Son on the phone and perhaps saw him at the restaurant and did not want to discuss her job or Son when she got home from work late at night would not, in our view, cause an ordinarily reasonable person to believe that Vo was having an affair or otherwise arouse the passions of a reasonable person and cause him to act rashly from passion rather than judgment. This is especially so because Vo had repeatedly denied that she was having an affair. (See, e.g., People v. Manriquez (2005) 37 Cal.4th 547, 585 [name-calling and dare insufficient provocation]; People v. Cole, supra, 33 Cal.4th at p. 1216 [constant bickering, yelling, and cursing insufficient evidence of provocation]; People v. Daniels (1991) 52 Cal.3d 815, 837, 868-869 [same re feelings of revenge for having been crippled some years before]; People v. Pride (1992) 3 Cal.4th 195, 216, 221, 250 [same re criticism over job performance]; People v. Lujan (2001) 92 Cal.App.4th 1389, 1414 [same re new romantic relationship after separation from the defendant].)
In claiming that the evidence of provocation was sufficient, defendant cites People v. Berry (1976) 18 Cal.3d 509, People v. Borchers (1958) 50 Cal.2d 321, People v. Bridgehouse (1956) 47 Cal.2d 406 (abrogated on other grounds in People v. Lasko, supra, 23 Cal.4th at p. 110), and People v. Le (2007) 158 Cal.App.4th 516, where courts found the evidence of provocation due to infidelity sufficient to support a finding of voluntary manslaughter rather than murder. However, Vo’s conduct was not remotely comparable to the provocation in those cases.
In Berry, supra, 18 Cal.3d 509, the defendant’s testimony, which was corroborated by a psychiatrist, established that three days after the defendant and the victim were married, she left. Over a two week period after she returned, she told the defendant that she had fallen in love with someone else, she had had sex with him and might now be pregnant with his child, and she wanted a divorce. She repeatedly taunted the defendant by flaunting her infidelity, then sexually exciting and demanding sex from him, and later saying she never wanted to have sex with him again. (Id. at pp. 512-513.)
In People v. Borchers, supra, 50 Cal.2d 321, the defendant fell in love with the victim and within two weeks they were engaged to be married. They went to Las Vegas, but when she saw a gambler who knew her husband, she told the defendant that bigamy was not a good idea, and they simply exchanged vows to each other. The victim had financial problems, and the defendant helped solve them, gave her power of attorney over his assets, and bought a life insurance policy naming her as a beneficiary. The defendant hired a private investigator who informed him that the victim was involved with some criminals and willingly had sex with one of them, who was a pimp. She also gave him the defendant’s money. One day, the defendant and victim went for a drive. She admitted her infidelity, told the defendant she wished she were dead, attempted to jump from the car, took a gun from the glove compartment, repeatedly urged the defendant to shoot her, and taunted him by calling him chicken. (Id. at pp. 323-327, 328-329.)
In People v. Bridgehouse, supra, 47 Cal.2d 406, the defendant’s wife told him that she had been having an affair with another man for over a year and slept with him while the defendant was at work. He filed for divorce. She told him she would fight the divorce, even if she had to lie; and she would kill him if he tried to take their children from her. Later, he went to her mother’s house. The man his wife had been seeing was there, and the defendant shot him. (Id. at pp. 407-409.)
In People v. Le, supra, 158 Cal.App.4th 516, the defendant’s wife admitted that she was having an affair with another man. She promised to end it but did not and then loaned the man money without telling the defendant. The defendant found out about the deception and started following his wife and collecting evidence of the affair, which he then showed to her parents. They warned her to end the affair, and she promised to do so but did not. Later, the defendant and his wife quarreled about the man, and she told him, “ ‘If you good, then you go suck his penis. Stop asking me questions.’ ” (Id. at pp. 519-521.) The defendant then killed the man.
Unlike those cases, there was no evidence that Vo had been unfaithful to defendant. Nor was there a reasonable basis for defendant to believe that Vo was having an affair with Son.
Even if the evidence arguably supported a theory of heat-of-passion voluntary manslaughter, defense counsel reasonably could have declined to pursue that theory for another reason. Defendant did not testify that he shot Vo in an angry, jealous rage, provoked by Vo’s infidelity. Rather, he testified that the gun fired by accident. He said he had no intention of killing or even harming her; he thought the gun was empty and safe; and he did not intentionally or purposefully pull the trigger. Given defendant’s version of events, counsel pursued a defense based on involuntary manslaughter, and the trial court instructed on that offense. The success of that strategy hinged on defendant’s credibility. However, defendant’s credibility was substantially undermined by his admitted and purposeful lying to the 911 operator and police officers who interviewed him and impeached by inconsistencies between his pre-trial version of events and his testimony. A heat-of-passion theory was inconsistent with his primary defense because it implies that defendant purposefully shot Vo while blinded by passion. Under the circumstances, defense counsel could have reasoned that any marginal benefit from asserting an additional but factually weak theory was outweighed by its potential to undercut defendant’s testimony that the shooting was unintentional and accidental and thereby undermine his claim of involuntary manslaughter. (E.g., People v. Bunyard (1988) 45 Cal.3d 1189, 1235 [not unreasonable to adopt all-or-nothing strategy and forego instructions on lesser offenses]; People v. Le (1995) 39 Cal.App.4th 1518, 1523 [counsel, for tactical purposes, can refrain from requesting instructions on lesser offenses where the all-or-nothing risk outweighs that of being convicted on the charged offense]; People v. Moringlane (1982) 127 Cal.App.3d 811 [reasonable not to assert factually weak alternative defense because of potential impact on primary defense]; cf. People v. Samayoa (1997) 15 Cal.4th 795, 846 [all-or-nothing approach to special circumstance allegations not unreasonable as matter of law].)
In sum, we do not find that counsel’s omission was unreasonable as a matter of law. Therefore, defendant has failed to establish that counsel rendered ineffective assistance.
IV. Definition of Provocation
The court instructed the jurors on the elements of first and second degree murder and said that if they found murder, they had to determine the degree. Concerning that determination, the court instructed jurors that “[p]rovocation may reduce a murder from first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder, but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.” (See CALCRIM No. 522.)
Defendant contends that the court erred in failing to legally define “provocation” for the jury. He notes that while murder can be reduced to voluntary manslaughter only if the jury finds both that the defendant was provoked and that the provocation would have caused a reasonable person to act rashly, murder can be reduced from first to second degree if jurors simply find that the defendant was provoked to act rashly. (People v. Oropeza (2007) 151 Cal.App.4th 73, 82; People v. Padilla (2002) 103 Cal.App.4th 675, 678.) Defendant claims the court had a duty to inform jurors that provocation could reduce murder to second degree if it found that defendant was provoked, even if a reasonable person under the same circumstances would not have been provoked. He argues that without such additional guidance, “the jury was necessarily forced to evaluate the provocation defense based on a homespun definition of provocation” and may have interpreted the court’s instruction to require a finding that the provocation was “objectively reasonable.”
In People v. Cole, supra, 33 Cal.4th 1158, the court instructed jurors on first and second degree murder. As to first degree murder, the court explained that if “ ‘the killing was preceded and accompanied by a clear, deliberate intent..., which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, ’ it was first degree murder.” (Id. at p. 1217, italics in Cole; see CALJIC No. 8.20 (5th ed.1988).) The court further explained that if jurors found that provocation induced an unlawful killing and that the killing was murder, they could consider the provocation in determining whether the murder was first or second degree. (People v. Cole, supra, 33 Cal.4th at p. 1217; see CALJIC No. 8.73 (5th ed. 1988).) On appeal, the defendant claimed that because the court’s instructions referred to “ ‘heat of passion,’ ” the court had a duty to further define “ ‘provocation’ ” as it related to voluntary manslaughter. (People v. Cole, supra, 33 Cal.4th at p. 1217.) In rejecting this claim, the court stated that as used in the instruction concerning the reduction of murder from first to second degree, provocation bore its “common meaning” and “required no further explanation in the absence of a specific request.” (Id. at pp. 1217-1218.) In other words, as used in CALCRIM No. 522, “provocation” needs no further definition.
We are bound by Cole. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject defendant’s claim that the court had a duty to supplement CALCRIM No. 522 and further instruct jurors that they could acquit defendant of first degree murder if they simply found that he had been provoked to act rashly, even if it was not objectively reasonable for him to have been so provoked.
Moreover, when we analyze a claim that an instruction was inadequate, we focus on the entire charge to the jury in light of the evidence and the arguments of counsel and determine whether there is a “reasonable likelihood” that the jury misunderstood the challenged instruction in the manner suggested by the defendant. (Estelle v. McGuire (1991) 502 U.S. 62, 72; Boyde v. California (1990) 494 U.S. 370, 378-381; People v. Holt (1997) 15 Cal.4th 619, 677; People v. Clair (1992) 2 Cal.4th 629, 663; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
CALCRIM No. 522 invites the jury to decide whether the defendant was provoked and allows the jury to consider the fact that the defendant was provoked in determining the degree of murder. The instruction does not reasonably imply that there is an additional requirement that the provocation must also be enough to cause a reasonable person to act rashly.
Moreover, in closing arguments, neither party suggested such a requirement. Indeed, as the Attorney General accurately observes, provocation was not a particularly critical issue for the prosecution or the defense. Both parties noted that defendant was angry and jealous. However, the prosecutor argued that those emotions motivated defendant to plan the murder and lie in wait for his victim. Defendant’s mental state was also the key to his defense. However, contrary to defendant’s claim, he did not assert a “provocation defense” or argue that provocation prevented him from forming the mental state needed for murder or reduced the murder to second degree murder. The defense was that there was no murder because he did not harbor express malice, intend to kill, or consciously disregard a dangerous risk. Rather, he thought a gun was safe once the clip is removed; he believed the gun was unloaded because he had taken the clip out; he did not know that there was a bullet in the chamber; he did not intend to shoot Vo or even pull the trigger; and the gun fired accidentally as they struggled for it. This is not a provocation defense; it is mistake of fact and accident.
Under the circumstances, it is not reasonably likely that jurors would (or did) misinterpret CALCRIM No. 522 and erroneously think that to reduce murder from first to second degree, provocation had to be objectively reasonable.
V. Voluntary Intoxication
The court instructed jurors that “[y]ou may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. [¶] You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation.” (See CALCRIM No. 625)
The court instructed the jury in accordance with Penal Code section 22, subdivision (b) which provides, “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.”
Defendant contends the court had a sua sponte duty to further instruct the jurors that they could consider defendant’s voluntary intoxication in deciding the subjective component of a heat-of-passion voluntary manslaughter theory. He argues that intoxication was relevant in determining whether defendant was subjectively provoked.
As noted, defendant did not claim that he shot Vo under the heat of passion or assert the theory of voluntary manslaughter. Moreover, there was insufficient evidence of provocation to support instructions on that theory, and defendant does not now claim that the court erred in failing to give such instructions sua sponte. Accordingly, the court did not err in failing to instruct jurors sua sponte on voluntary intoxication as it relates to the subjective component of a heat-of-passion theory.
For the same reasons, we reject defendant’s claim that counsel rendered ineffective assistance in failing to request an instruction relating voluntary intoxication to the subjective component of heat-of-passion voluntary manslaughter.
Defendant’s reliance on People v. Cameron (1994) 30 Cal.App.4th 591 is misplaced. In Cameron, heat-of-passion voluntary manslaughter was asserted as a defense to murder charges, there was evidence to support that theory, and the court instructed jurors on it. Moreover, the issue in Cameron was not whether the trial court has a duty to instruct jurors that voluntary intoxication may be considered in determining the subjective component of heat-of-passion voluntary manslaughter, and nothing in that case suggests that the court has such a duty. Thus, Cameron is inapposite.
In connection with the instructions on reducing the degree of murder, defendant cites, and we find, no authority for the proposition that the court has a sua sponte duty to give an additional instruction relating evidence of voluntary intoxication to the determination of whether the defendant was provoked. On the contrary, generally “an instruction on voluntary intoxication, explaining how evidence of a defendant’s voluntary intoxication affects the determination whether defendant had the mental states required for the offenses charged, is a form of pinpoint instruction that the trial court is not required to give in the absence of a request. [Citation.]” (People v. Bolden (2002) 29 Cal.4th 515, 559.)
Moreover, the trial court’s instructions adequately covered the issue. The court instructed jurors that to convict defendant of murder, the prosecution had to prove that defendant caused the death of another person and acted with malice—i.e., either an intent to kill or conscious disregard for actions that were dangerous to human life. (See CALCRIM No. 520.) The court instructed jurors that if they found that defendant committed murder, they had to decide whether it was first or second degree murder. (See CALCRIM No. 521.) Concerning first degree, the court instructed that the prosecution had to prove that the murder was committed willfully, deliberately, and with premeditation; or the murder was committed by lying in wait. (See ibid.) In particular, the court explained, “The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice, and knowing the consequences decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.” (See ibid.) On the other hand, “[a] decision to kill rashly, impulsively or without careful consideration is not deliberate and premeditated.” (See ibid.) Concerning lying in wait, the court explained that jurors must find that defendant concealed his purpose, waited and watched for an opportunity to act, and intended to and did make a surprise attack on the person killed. Moreover, the duration of the lying in wait “must show a state of mind equivalent to deliberation or premeditation.” (See ibid.)
As noted that court instructed jurors that provocation may reduce a murder from first to second degree and said they could consider provocation in determining whether the killing was first or second degree. (See CALCRIM No. 522.) The court also instructed that the jury could consider evidence of voluntary intoxication in determining whether defendant acted with an intent to kill, deliberation, and premeditation. (See CALCRIM No. 625.)
When read and considered together, these instructions permitted jurors to consider both voluntary intoxication and provocation at the same time in determining whether defendant acted with an intent to kill, deliberation, and premeditation and thus whether the murder was first or second degree. Moreover, nothing in the instructions prohibited the jurors from considering the connection between voluntary intoxication and provocation in determining whether he had the requisite mental state for first degree premeditated murder.
When the trial court proposes an otherwise correct instruction that the defendant believes is insufficient or incomplete, failure to request clarifying or amplifying language forfeits any claim of instructional error in that regard. (People v. Richardson (2008) 43 Cal.4th 959, 1022-1023; People. v. Horning (2004) 34 Cal.4th 871, 909.)
Under the circumstances, if defendant now thinks that it was necessary to have an additional instruction that expressly informed jurors that they could consider the relationship between voluntary intoxication and provocation in determining whether defendant acted with an intent to kill, deliberation, and premeditation, he had a duty to request it below and may not claim error on appeal.
Moreover, insofar as defendant’s claim of ineffective assistance (see ante, fn. 8) includes a claim that counsel should have sought such an instruction, we reject it. Again, the record does not disclose counsel’s reason for not requesting such an instruction, and because, as discussed above, the court’s instructions adequately covered the issue, counsel could have concluded that an additional instruction was unnecessary. This is especially so because defendant’s own testimony does not suggest that when Vo came home after work, he was still under the influence of drugs and alcohol. Indeed, Shelton testified that when defendant finally left his house, he did not seem to be under the influence.
VI. Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
Lya too did not hear any arguing or gunshots before she heard defendant yelling for help.