Opinion
D072734
11-05-2018
THE PEOPLE, Plaintiff and Respondent, v. CINDY MARIE CEBALLOS, Defendant and Appellant.
Patricia J. Ulibarri, 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, Charles C. Ragland, Alana R. Butler and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE358753) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed. Patricia J. Ulibarri, 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, Charles C. Ragland, Alana R. Butler and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Cindy Marie Ceballos killed Christalina I. by repeatedly stabbing her with a knife. A jury convicted Ceballos of first degree murder (Pen. Code, § 187, subd. (a)) and found a knife-use allegation to be true (§ 12022, subd. (b)(1)). The court sentenced Ceballos to a prison term of 26 years to life.
Undesignated statutory references are to the Penal Code.
Ceballos contends her conviction should be reversed because (1) the jury's finding that she committed murder with premeditation and deliberation is not supported by substantial evidence, and (2) her attorney rendered ineffective assistance by failing to ask the court to give a pinpoint instruct on third party provocation. We reject these contentions and affirm.
FACTUAL BACKGROUND
A. The People's Case
1. Background
Ceballos killed Christalina in February 2016 on the Campo Indian reservation. The people involved in this case, listed in the table below, lived on or near the reservation and either knew or were related to each other:
| Name | Relationship |
|---|---|
| Casandra | Ceballos's cousin |
| Elizabeth | Christalina's mother |
| Jane | Ceballos's mother. |
| Natalie | Ceballos's cousin. |
| Nicole | Christalina's aunt andCasandra's mother. |
| Darrell Wohlford | Boyfriend of Christalina andCeballos. |
The relationship between Wohlford, Ceballos, and Christalina is a significant aspect of this case. Wohlford dated Ceballos for a time, and then Christalina, and then Ceballos again. He also dated both of them at the same time. This created jealousy between Ceballos and Christalina. According to one witness, Wohlford was "[p]laying both of them."
2. Events preceding Christalina's death
The morning of the killing, Nicole was at Elizabeth's house when Elizabeth received a text message from Christalina that said, "I've got some juicy gossip." Elizabeth invited Christalina to come over.
Christalina, who lived a short distance away, came right over and showed Elizabeth text messages from Wohlford stating that Natalie, Casandra, and Ceballos were going to "kick [Christalina's] ass."
On the Campo reservation, fist fights (without weapons) are a common way to settle disputes. Christalina drove the short distance to Jane's house (where Ceballos was living) to find out if Ceballos actually wanted to fight. Elizabeth and Nicole went along to make sure it was a fair fight. When they arrived, Wohlford was outside. Christalina asked him why he had sent her the taunting and threatening text messages. They argued for a few minutes and, after learning that Ceballos was not there, Christalina, Elizabeth, and Nicole drove back to Christalina's house.
Casandra and her boyfriend, Jose, picked up Wohlford in Jose's car. Natalie sent a text message to Casandra, asking if she knew Wohlford's whereabouts. After Casandra replied that Wohlford was with her, Natalie and Ceballos arranged to meet them nearby.
When they met a few minutes later, Wohlford switched cars, getting in Natalie's car with Ceballos. Ceballos told Natalie to drive to Christalina's house, where she planned to fight Christalina. Wohlford asked Casandra and Jose if they "wanted to go see a fight." Apparently, they did, and Casandra and Jose followed in their car.
Meanwhile, Elizabeth, Nicole, and Christalina had been at Christalina's house for about 20 minutes. The two cars, one driven by Jose with Casandra, and the other driven by Natalie with Ceballos and Wohlford as passengers, drove up and parked in front of Christalina's house. Wohlford, Ceballos, Natalie, and Casandra ran to Christalina's front yard, followed by Elizabeth and Nicole. Jose stayed behind.
The trial testimony of Elizabeth, Casandra, Natalie, and Nicole differed about details of the killing in several respects. The facts stated here are based on the totality of the evidence, with factual conflicts resolved in the light most favorable to the judgment.
Ceballos angrily pounded on Christalina's front door, yelling, "Christalina. Christalina, open your door." Wohlford yelled, "Get out here, Christalina, get out here."
When Christalina did not open the door, Elizabeth hollered through the window for Christalina to go to the back door. Everyone ran to the back yard.
Ceballos waited for Christalina near the back door. Ceballos held a knife, about eight inches long, in her right hand down at her side. The others were standing to Ceballos's left. Natalie noticed the knife and said to Ceballos, "Give me the fucking knife"—but Ceballos refused. Natalie tried to take the knife from Ceballos, but unable to wrestle it away, she yelled to Wohlford, "She has a knife. Get the knife." Wohlford said to Ceballos, "Cindy, put that knife away. You're going to hurt somebody." He also told the group, "She's got a knife. Don't let them fight."
Christalina, who was unarmed, came out the back door, and said, "Oh, she has a knife. I'm going to go get my gun" and "I'll stop this right now."
Christalina ran to the front of the house, got a shotgun, and while everyone else was still in the backyard, fired a warning shot from the front yard. Upon hearing the shot, everyone (except Natalie) ran to the front of the house.
Natalie decided she had enough and returned to her car.
When Wohlford reached the front door, he wrestled the shotgun away from Christalina and used it to knock her to the ground. After Casandra laughed at Christalina, a brief fist fight ensued between Christalina and Casandra near the front door.
Meanwhile, Ceballos came to the front of the house and stabbed Christalina in the upper abdomen while she stood in the doorway. Christalina entered the house; Ceballos followed. In the kitchen, Ceballos repeatedly stabbed Christalina in the torso and then, after pausing a moment, stabbed her in the neck. One of the stab wounds pierced Christalina's heart. Another punctured Christalina's lung. In total, Ceballos stabbed Christalina more than five times in the chest and abdomen and twice in the neck.
Christalina, who was five feet four inches tall and weighed about 120 pounds, was smaller than Ceballos. Natalie, who witnessed this from her car, described it as an "awkward punch[]" and a "thrust"—testimony consistent with a stabbing.
Christalina died at the scene. Ceballos and Wohlford got in Natalie's car and told her to drive to Jane's house. On the way, Natalie and Wohlford were yelling at Ceballos, "What the fuck did you do? What the fuck happened? Why the fuck did you do this?" Ceballos replied, "She thinks I'm playing. I'm not fucking playing." After a brief stop at Jane's house, they drove to Natalie's aunt's house. Natalie cooked a meal and after everyone ate, Ceballos showered. After smoking marijuana, they learned that Christalina had died. Ceballos and Wohlford fled on foot. Natalie said she would wait 10 minutes before calling the police. Before that time expired, police had already surrounded the house.
C. Defense Case
For several years, Ceballos suffered domestic violence at the hands of her boyfriends, including Wohlford and another man. Those relationships included constant "fighting, drinking, [and] using [drugs]." Ceballos used methamphetamine, drank alcohol, and smoked marijuana. At times, Ceballos would yell at someone, but there was no one there.
In 2014 police placed Ceballos under a 72-hour hold when they found her creating a disturbance at a restaurant, making nonsensical statements, and with a rotting dead bird in her purse.
On the day she stabbed Christalina, Ceballos had been awake since midnight drinking with a friend and was intoxicated. Jane told police that Ceballos was acting "crazy" when she was at her house after the stabbing and that Ceballos is a methamphetamine addict with severe depression.
A psychologist, Kristina Malek, Ph.D., testified that Ceballos had been involved in two domestic violence relationships and suffered "complex trauma." Additionally, the domestic violence and abusive relationships created a psychological dependence that could make Ceballos ignore things that she typically would not in order to please her partner. Dr. Malek testified that Ceballos's use of methamphetamine led to hallucinations, aggression, agitation, and paranoia. Dr. Malek opined that as a result of the trauma Ceballos suffered from her abusive relationships, combined with her methamphetamine use, Ceballos "might be more likely to react aggressively in the moment due to her own trauma and fear, and so on." Another expert testified that symptoms of long-term methamphetamine abuse include violence, aggression, and hallucinations.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTED THE FIRST-DEGREE MURDER
CONVICTION
A. Ceballos's Contention
Ceballos contends that the People presented "no evidence" of a plan by her to kill Christalina, and any motive for a premeditated and deliberated killing was "weak." She further contends that the "rash manner in which the stabbing occurred coupled with" her mental conditions and drug psychosis shows "unconsidered, impulsive conduct" that is insufficient to support the "requisite finding of willful, deliberate, and premeditated first degree murder."
B. The Standard of Review
"In assessing the sufficiency of the evidence supporting a jury's finding of premeditated and deliberate murder, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] When the circumstances reasonably justify the jury's findings, a reviewing court's opinion that the circumstances might also be reasonably reconciled with contrary findings does not warrant reversal of the judgment." (People v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.)
C. Analysis
"'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citation]. The reflection may be arrived at quickly; it need not span a specific or extended period of time.'" (People v. Lopez (2018) 5 Cal.5th 339, 354-355.)
The adequacy of evidence supporting premeditation and deliberation has been the subject of numerous published decisions. There are no hard and fast rules. In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the Court articulated standards for determining premeditation and deliberation based on a review of the published cases. Evidence establishing premeditation and deliberation include: (1) facts about a defendant's behavior before the incident that show planning, (2) facts about any prior relationship or conduct with the victim from which the jury could infer motive, and (3) facts about the manner of the killing from which the jury could infer the defendant intended to kill the victim according to a preconceived plan. (Ibid.) The Anderson standards are only guides—they are not rules and they are not exclusive. (People v. Thomas (1992) 2 Cal.4th 489, 517.) Evidence of all three Anderson elements is not essential to sustain a conviction. (People v. Edwards (1991) 54 Cal.3d 787, 813-814.)
Considering the record in light of the Anderson factors, we conclude there was sufficient evidence that Ceballos killed Christalina with premeditation and deliberation. First, there is evidence of planning. Ceballos went looking for Christalina to fight. Ceballos directed Natalie to drive to Christalina's house; and the plan was to fight there. Immediately upon arrival, Ceballos angrily pounded on the front door, hollering for Christalina to come out and fight. (See People v. Wright (1985) 39 Cal.3d 576, 592-593 [evidence of planning where defendant actively looked for victim before shooting him].)
Coming to the conflict armed with a knife is further evidence of a plan to kill. Evidence that a defendant carried a knife to the victim's home makes it "'reasonable to infer that [s]he considered the possibility of homicide from the outset.'" (People v. Steele (2002) 27 Cal.4th 1230, 1250].)
There is also substantial evidence of deliberation. Before the fight, people urged Ceballos to disarm. Wohlford said, "Put that knife away. You're going to hurt somebody." Natalie told Ceballos, "Give me the fucking knife," but Ceballos refused to give it up. Ceballos's refusal to disarm supports a reasonable inference that she thoughtfully considered her actions and determined to use the knife to kill.
Additionally, Ceballos walked with the knife from the back of the house to the front, stabbed Christalina, followed Christalina into the house, and in the kitchen stabbed Christalina to death. From this evidence, the jury could reasonably determine that Ceballos had a sufficient opportunity to think about and consider her actions prior to her deadly attack. For example, in People v. Memro (1995) 11 Cal.4th 786, 863 (Memro), overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, footnote 2, the California Supreme Court recognized that a reasonable jury could conclude that during the time it took the defendant to run 178 feet, the defendant considered his options.
Moreover, Ceballos had multiple opportunities to not fight. She could have left immediately after Christalina fired the warning shot, as Natalie did. She could have left after Casandra and Christalina scuffled in the front yard. She could have left after Christalina retreated into her home. The jury could reasonably infer that only a person already determined to kill would have entered Christalina's home, pursued her into the kitchen, and then repeatedly stabbed her to death. (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1116.)
In addition, the method of killing by itself may support a conclusion that sufficient evidence supports a finding of premeditated murder. (Memro, supra, 11 Cal.4th at pp. 863-864.) Christalina was vulnerable and defenseless: Wohlford had taken the shotgun away, she had no other weapon and, according to one witness, her arms were being restrained while Ceballos stabbed her. (See People v. Silva (2001) 25 Cal.4th 345, 369 [killing an unarmed and defenseless victim is "entirely consistent with a premeditated and deliberate murder"].)
Moreover, after repeatedly stabbing Christalina in the torso, Ceballos paused and then stabbed her twice in the neck. This indicates a "'reasoned decision to kill.'" (People v. Lewis (2009) 46 Cal.4th 1255, 1293; see also People v Pride (1992) 3 Cal.4th 195, 247 ["A violent and bloody death sustained as a result of multiple stab wounds can be consistent with a finding of premeditation."].)
Further, two wounds were very deep. A nearly four-inch stab into Christalina's chest penetrated her lung. Another stab of similar depth penetrated rib cartilage and pierced her heart. The force needed to stab this deep is consistent with a premeditated decision to kill. (See People v. Harris (2008) 43 Cal.4th 1269, 1287 [sufficient evidence of premeditated murder where defendant stabbed the victim directly in the heart with enough force to penetrate part of a rib]; Anderson, supra, 70 Cal.2d at p. 27 ["directly plunging a lethal weapon into the chest evidences a deliberate intention to kill"].)
Shortly after killing Christalina, Ceballos said, "She thinks I'm playing. I'm not fucking playing." From this, the jury could have also drawn a reasonable inference of motive—animus towards Christalina and jealousy involving their mutual relationship with Wohlford. (See People v. Cruz (1980) 26 Cal.3d 233, 245 ["[d]efendant's pent-up resentment toward his victims establishes the prior relationship from which the jury reasonably could infer a motive for the killing[]"]; People v. Kovacich (2011) 201 Cal.App.4th 863, 893 ["evidence showing 'quarrels, antagonism or enmity between an accused and the victim of a violent offense is proof of motive to commit the offense'"].)
Ceballos concedes that "motive might be inferred because of this love triangle."
After stabbing Christalina, Ceballos showered, changed clothes, ate a meal, and fled with Wohlford—all of which tends to demonstrate premeditation and deliberation because these are activities inconsistent with a state of mind that would have produced a rash, impulsive killing. (See People v. Moon (2005) 37 Cal.4th 1, 27-28 [evidence of flight demonstrates premeditation and deliberation]; People v. Perez (1992) 2 Cal.4th 1117, 1128 ["the conduct of defendant after the stabbing . . . would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing," italics omitted].)
In an attempt to negate these inferences, Ceballos contends it was "undisputed" that she suffered complex trauma and used methamphetamine, which "could create an over-reaction through violence." Citing Dr. Malek's testimony, Ceballos contends that her domestic violence history and drug use would "trigger impulsivity and quickness to react aggressively."
However, the jury was not required to accept Dr. Malek's testimony or the defense theory her testimony supported. (People v. Ledesma (2006) 39 Cal.4th 641, 722 ["the jury was not required to accept the testimony of the defense experts"].) Moreover, Dr. Malek's testimony during cross-examination substantially undercut the foundation for her opinions. For example, Dr. Malek conceded that in her three hours of clinical sessions with Ceballos, Ceballos did not display any psychotic symptoms, was able to understand questions and give appropriate responses, and had coherent thoughts. In a June 2015 medical examination, Ceballos is described as alert, oriented, with appropriate mood and affect. When booked for killing Christalina, Ceballos denied having any psychiatric or health problems. She was described as alert, oriented, showing normal speech and thought process. A recent psychiatric report stated that Ceballos may have been coached by other inmates about symptoms of schizophrenia, and she was fabricating having hallucinations. Dr. Malek conceded that she did not include this information in her report. The jury could reasonably have found Dr. Malek's reasoning to be flawed or insufficiently supported.
Ceballos also asserts Wohlford instigated the entire incident and, therefore, there is no evidence of planning. Further, Ceballos argues that if this had been a planned killing, she would have stabbed Christalina immediately when Christalina exited the back door or would have "jumped in" when Casandra was scuffling with Christalina. Ceballos states that several witnesses had credibility issues, and there was conflicting testimony about what happened at Christalina's house. She also contends there is no evidence that she had the knife when she exited Natalie's car. In sum, Ceballos concludes "there was simply no evidence" that she went to Christalina's house to kill her.
These may be reasonable points to argue to a jury; however, Ceballos's appellate argument fails because of the standard of review. Ceballos's argument depends on viewing the evidence and reasonable inferences to be drawn from it in the light most favorable to herself, which we may not do on substantial evidence review. For example, she claims there is no evidence that she armed herself before leaving Natalie's car; however, Ceballos was holding the knife in the back yard, and no one testified that they had given her a knife. The reasonable inference is that Ceballos came to the fight armed. This inference is particularly compelling given Ceballos's assertion, after killing Christalina, that she was "not fucking playing." Moreover, even assuming the jury could have made the inferences Ceballos urges, "[t]he mere possibility of a contrary finding as to [Ceballos's] mental state does not warrant a reversal" (italics omitted) of the judgment. (People v. Brady (2010) 50 Cal.4th 547, 565.) "The final determination as to the weight of the evidence is for the jury to make[, and w]e do not reweigh it and substitute our view for theirs." (People v. Brown (2014) 59 Cal.4th 86, 106.)
In her reply brief, Ceballos also contends her case is similar to People v. Boatman (2013) 221 Cal.App.4th 1253 (Boatman), which held that evidence was insufficient to support the first degree murder elements of premeditation. However, the facts of Boatman are materially different from those here.
In Boatman, supra, 221 Cal.App.4th 1253, the defendant shot his girlfriend while they were in a bedroom of his family's home. (Id. at p. 1258.) The defendant gave different versions of what happened. (Id. at p. 1259.) At trial, however, he testified that she playfully pointed the gun at him and he took it and playfully pointed it back at her. While pointing it at her, he cocked back the hammer, and, when she slapped the gun, it discharged. (Id. at p. 1260.) Immediately after the shooting, the defendant asked his brother to call the police and he attempted to give his girlfriend mouth-to-mouth resuscitation. (Id. at p. 1261.)
The Boatman court concluded there was no planning evidence presented. (Boatman, supra, 221 Cal.App.4th at p. 1267.) The court pointed out that there was "no evidence that defendant left the room or the house to get a gun, or that he even moved from his squatting position on the floor." (Ibid.) The court further reasoned that the "[d]efendant's behavior following the shooting [was] of someone horrified and distraught about what he had done, not someone who had just fulfilled a preconceived plan" (ibid.), noting that he tried to resuscitate his girlfriend, told his brother to call the police, and could be heard crying in the background during the 911 call. (Ibid.) The court concluded that "[t]he evidence not only fails to support an inference of a plan to kill [his girlfriend], but strongly suggests a lack of a plan to kill." (Ibid.)
The Boatman court also found "little or no relevant motive evidence." (Boatman, supra, 221 Cal.App.4th at p. 1267.) The only motive evidence was a text message from the victim to a friend, stating that she was having a fight with the defendant. The Attorney General relied on this to argue that the jury may have inferred that the defendant was "'in a bad mood after being released from custody and he was angry with [his girlfriend].'" (Id. at pp. 1267-1268.)
Here, unlike in Boatman, supra, 221 Cal.App.3d 1253, Ceballos concedes that "motive might be inferred because of th[e] love triangle" between her, Wohlford, and Christalina. Moreover, unlike Boatman, Ceballos did not behave like someone horrified and distraught about what she had done, but rather like someone who had just fulfilled a preconceived plan. After killing Christalina, she made no attempt to resuscitate her or get help, but rather took a shower, ate lunch, smoked marijuana, and then fled when police arrived.
II. NO INEFFECTIVE ASSISTANCE OF COUNSEL
A. Introduction
Ceballos contends her trial lawyer rendered ineffective assistance by not asking the court to give a pinpoint instruction on "third-party provocation." To place this issue in context, we first discuss some aspects of homicide law, and then explain why Ceballos's argument lacks merit.
B. Distinctions Between Murder and Voluntary Manslaughter
California law separates criminal homicide into two classes, "the greater offense of murder and the lesser included offense of manslaughter." (People v. Rios (2000) 23 Cal.4th 450, 460 (Rios).) "The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice." (Ibid.)
A defendant "'"who intentionally and unlawfully kills . . . lacks malice when [she] acts in a 'sudden quarrel or heat of passion . . . .'"'" (Rios, supra, 23 Cal.4th at p. 460.) Adequate provocation negates the element of malice or causes it to be disregarded as a matter of law. (People v. Bryant (2013) 56 Cal.4th 959, 968 (Bryant).)
A killing is upon a sudden quarrel or heat of passion if the killer acts, not out of rational thought, but out of unconsidered reaction to the provocation. (People v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).) There is both an objective and a subjective component to the heat of passion requirement: (1) subjectively, the defendant must actually kill under the heat of passion and (2) objectively, the provocation must be such as would naturally arouse such passion in an ordinary reasonable person. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) "'The provocative conduct . . . may comprise a single incident or numerous incidents over a period of time.'" (People v. Wright (2015) 242 Cal.App.4th 1461, 1481 (Wright).) The passion aroused can be anger, rage, or any "'"'"violent, intense, highly wrought or enthusiastic emotion"'"'"—except revenge. (People v. Lasko (2000) 23 Cal.4th 101, 108.) The provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. (Beltran, supra, 56 Cal.4th at p. 949.) "[T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene. Framed another way, provocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured." (Ibid., italics omitted.) In such cases, the law, "'out of forbearance for the weakness of human nature'" (Bryant, supra, 56 Cal.4th at p. 969) reduces the offense to manslaughter. (Ibid.)
"The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations]. The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.'" (People v. Moye (2009) 47 Cal.4th 537, 549-550 (Moye), italics added; People v. Verdugo (2010) 50 Cal.4th 263, 294 [refusing to revisit the settled principle that provocation that "'"incites the defendant to homicidal conduct in the heat of passion must be caused by the victim . . . or be conduct reasonably believed by the defendant to have been engaged in by the victim"'"].)
"[W]hether adequate provocation and heat of passion have been shown are fundamentally jury questions." (Wright, supra, 242 Cal.App.4th at p. 1482.)
C. Second Degree Murder
Second degree murder is an unlawful killing with malice, but without premeditation and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) If the provocation that leads to an unlawful homicide would not cause an average person to act in the heat of passion, but does subjectively preclude the defendant from premeditating or deliberating, the crime is second degree murder. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.)
D. Ceballos's Contention
Ceballos contends that her defense "depended on the jury understanding that she was induced and fueled by Wohlford's provocation, the very batterer upon which [sic] she was dependent[,] abuse that led [Ceballos], with her varying disorders, to a heightened state of fear and trauma that resulted in an impulsive reaction that mitigated malice on the day Christalina was killed." She further contends that "the jury never got an opportunity to consider this defense theory because defense counsel failed to request a pinpoint instruction on third-party provocation . . . ." Recognizing that a trial court has no sua sponte duty to give such a pinpoint instruction, Ceballos contends that her trial counsel's failure to request the instruction is ineffective assistance of counsel.
E. Analysis
Ceballos asserts that counsel should have requested "a third-party provocation instruction," a "pinpoint instruction on third-party provocation," and "a third party pinpoint provocation instruction"—however, Ceballos never states what that instruction should have stated. The closest Ceballos comes to setting forth the text of such an instruction is her arguments that counsel should have requested "an instruction that pointed out to the jury that provocation could be considered even if it came from a third-party" or a "clear instruction . . . that third party provocation was applicable to the case, and applicable to the point of permitting a finding of not guilty" or "a third-party pinpoint provocation instruction informing the jury that it could consider Wolford's provocation in determining if [Ceballos] premeditated and deliberated Christalina's death."
Ceballos's argument fails because she does not provide a specific instruction that trial counsel should have requested. To prevail on a claim of ineffective assistance of counsel, a defendant must "support [her] contentions" (People v. Stephenson (1974) 10 Cal.3d 652, 661) and establish ineffectiveness as "a demonstrable reality and not a speculative matter." (Ibid.) Here, because Ceballos does not delineate a specific instruction that trial counsel should have requested, her ineffective assistance claim is merely speculative.
Moreover, a trial court has no duty to provide a pinpoint instruction requested by the defense "if it incorrectly states the law, is argumentative, duplicative, or potentially confusing." (People v. Moon (2005) 37 Cal.4th 1, 30.) A trial court may also properly refuse a proposed instruction if it pinpoints specific evidence rather than a defense legal theory. (People v. Earp (1999) 20 Cal.4th 826, 886.) Without seeing the text of the instruction, it is impossible to determine if Ceballos's argument is even based on a correct statement of law. This is an especially serious concern in this case because, as the Attorney General correctly observes, Ceballos is arguing that defense counsel should have requested a third party provocation instruction based, at least in part, on Wohlford's arguments with Christalina and text messages from him to Christalina taunting Christalina to fight. However, the legally relevant provocation must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim—for example, what Wohlford told Ceballos about Christalina's conduct. (See Moye, supra, 47 Cal.4th at pp. 549-550.)
In any event, even overlooking the inherently speculative nature of Ceballos's argument and assuming that by third party provocation Ceballos means what Wohlford told Ceballos about Christalina's actions or conduct, Ceballos's argument fails because she cannot establish prejudice. To establish ineffective assistance of counsel, Ceballos must show a reasonable probability that a more favorable outcome to her would have been reached in the absence of trial counsel's error. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) As explained post, Ceballos cannot show prejudice because the instructions as a whole, together with the evidence and defense counsel's closing argument, adequately informed the jury that they could consider evidence in the very manner that a pinpoint instruction would have provided. (See People v. Smithey (1999) 20 Cal.4th 936, 986-987 [counsel's failure to request pinpoint instruction not prejudicial because the instructions as a whole, taken together with trial evidence and counsel's closing argument, adequately informed the jury they could consider evidence in the very manner that a pinpoint instruction would have provided].)
On the issue of provocation, the court instructed the jury with CALCRIM No. 522, stating, "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." Additionally, as part of CALCRIM No. 570 (voluntary manslaughter), the court instructed that "no specific type of provocation is required" and "[i]n 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." Thus, the instructions were worded broadly enough to encompass what Ceballos characterizes as third party provocation.
In her reply brief, Ceballos also contends that a pinpoint instruction was "essential" for the jury to understand that her history of drug abuse and being a victim of domestic violence were subjective factors to be considered in determining whether her "provocation defense [was] . . . viable." However, on direct examination of Dr. Malek, defense counsel elicited evidence on this point:
"Q: [L]et me ask you a hypothetical. [¶] So I want you to assume that we have a woman who's been the victim of intimate partner abuse. She's in a relationship with that abuser, and the abuser—she
learns that the abuser is also in a relationship with another woman. [¶] The abuser, perhaps for his own personal interest, sets up a physical confrontation between the two women. Assuming that the victim of the abuse is reluctant about engaging in this physical confrontation, based on your training and experience and education, why might she engage in the altercation, despite that reluctance? [¶] . . .
"A: [I]f you're a traumatized individual and you are in the moment where something is provoking this state of unease, you're more likely to react, and maybe more quick to react."
"Q: . . . Let's assume that there is a physical confrontation, which is arranged between somebody who is abused and somebody who the abuser is in a separate relationship with. [¶] The individuals come together. . . . One individual gets a shotgun, fires the shotgun . . . . [H]ow, if at all, does that play into your—or might that play into your evaluation about the conduct of that person? [¶] . . .
"A: . . . I would say that, you know, we got the drug use, which makes you more impulsive, you've got the fact that you're in a state of heightened arousal, and you have somebody who has already been traumatized once before, and you combine all that, and it's a recipe for disaster."
In closing argument, defense counsel used this evidence and the instructions to argue the third party provocation theories Ceballos asserts here:
"If [Wohlford] had not told [Ceballos] that Christalina had come to her house looking to fight her, very likely we would not be here. . . . But he did, and he set these events into motion, and they ended tragically".
"[T]his entire case is about provocation, the provocation of one individual, [Wohlford], provoking two women that he's in a personal relationship with."
"[Ceballos] is the one who did the meth, she's the one who drank, but at some point it takes over. It takes over the person. . . . [¶] . . . [¶] The issue of mental disease, defect, impairment is significant. It's significant because it goes to explain the reason why . . . [Ceballos] . . . acted in the way that she did."
"This entire case is about heat of passion. Passion can build over time. . . . [¶] Well, let's start with [Christalina] coming over to [Ceballos's] house. She came over to her house first to fight her based on nothing more than the words of a man who was controlling both of them."
"[Wohlford] knows what [he's] about to tell [Ceballos] is going to cause her to want to go over to Christalina's, if nothing else[,] to fight. He looks back and he looks at Casandra, and he says, 'Do you want to see a fight?' And provocation, heat of passion, all those things are building."
"[Wohlford] set the events in motion. He picked his victim. And while he didn't do the actual act, he's certainly responsible. And his responsibility and culpability play into every facet of this case."
The instructions and counsel's argument informed the jury that if it found Ceballos killed out of provocation instead of deliberation and premeditation, it had to convict her of second degree murder or, if the provocation was sufficient, voluntary manslaughter. Moreover, the jury unequivocally rejected Ceballos's provocation theory—returning a unanimous first degree murder verdict in less than one full day of deliberations. A pinpoint instruction would not have resulted in a different verdict. Accordingly, we cannot conclude that Ceballos's trial counsel rendered constitutionally ineffective assistance by not asking for a pinpoint instruction on provocation. (People v. Sapp (2003) 31 Cal.4th 240, 263 [court may reject ineffective assistance claim where no prejudice is shown without determining whether counsel's performance was deficient].)
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.