Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. SCD220271 Jeffrey F. Fraser, Judge.
NARES, J.
In April 2009 defendant Miguel Angel Delvalle saw his former spouse, Gypsy, driving a car with her friend, Edward Jenkins, for whom she had left Delvalle, followed them to a liquor store, slashed the tires of their car, waited outside for them, then stabbed Jenkins repeatedly in the abdomen, and chased Gypsy down and stabbed her in the neck and face. When a police officer later approached Delvalle, who was in custody at a hospital, the officer identified himself and said, "You know why I'm here, don't you?" Delvalle immediately responded by making several self-incriminating statements.
We use a first name here solely for the purpose of clarity and convenience and intend no disrespect.
A jury convicted Delvalle of two counts of attempted murder (counts 1 (victim: Jenkins) & 2 (victim: Gypsy): Pen. Code, §§ 187, subd. (a), 664). The jury found that the attempted murder of Jenkins was willful, deliberate, and premeditated within the meaning of section 189; but the attempted murder of Gypsy was not. The jury found true sentencing enhancement allegations that Delvalle personally used a deadly and dangerous weapon (a knife) within the meaning of section 12022, subdivision (b)(1); he personally inflicted great bodily injury upon Jenkins within the meaning of section 12022.7, subdivision (a); and he personally inflicted great bodily injury upon Gypsy under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e). The jury found him not guilty of making a criminal threat (§ 422) as charged in count 3.
All further statutory references are to the Penal Code.
The court sentenced Delvalle to an indeterminate prison term of life with the possibility of parole for his count 1 conviction, plus a determinate term of 17 years for his count 2 conviction and the true findings on the enhancement allegations.
Delvalle appeals, contending the judgment must be reversed because (1) the court violated his Fifth Amendment privilege against self-incrimination by denying his motion to suppress the self-incriminating statements he made to the police officer while in custody at the hospital, because the officer's initial remark to Delvalle "amounted to a[n] inquiry reasonably calling for an incriminating response" within the meaning of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and Rhode Island v. Innis (1980) 446 U.S. 291 (Innis), and thus the officer's failure to first advise Delvalle of his Miranda rights required exclusion of Delvalle's statements; and (2) the court prejudicially erred by refusing to instruct the jury on the lesser included offense of voluntary manslaughter based on the theory that the "adulterous" conduct of Gypsy and Jenkins provoked Delvalle into stabbing them in a sudden quarrel and under the heat of passion.
We conclude Delvalle was not entitled to Miranda warnings before he made his spontaneous and unsolicited self-incriminating statements because the police officer's initial remark, although in the form of a question, was not the functional equivalent of interrogation for purposes of the Miranda rule (discussed, post) because it merely called for a "yes" or "no" answer as to whether Delvalle knew why the officer was there. We also conclude the court did not err by refusing to instruct the jury on voluntary manslaughter based on heat of passion as the trial record is devoid of substantial evidence of provocation sufficient to warrant such an instruction. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
Delvalle married Gypsy in 2001. Both had children from prior relationships, and together they had one child, a daughter, who was born in 2002. Delvalle and Gypsy began having marital problems that involved physical, verbal, and emotional abuse. Gypsy wanted to leave Delvalle and file for divorce, but did not have the courage to do so. Delvalle told Gypsy that if she ever cheated on him, he would kill her and her lover.
Delvalle met Jenkins in a drug treatment program and invited Jenkins to live with him and Gypsy until Jenkins found a job and got back on his feet. Jenkins moved into their home around March 2007 and lived there for almost four months. Jenkins and Gypsy became friends and then lovers.
Jenkins moved out of the Delvalle residence and Gypsy left Delvalle about one month later. She continued to date Jenkins, but did not tell Delvalle about her relationship with Jenkins.
Gypsy filed for divorce in October 2007. Jenkins went to jail at around the same time, but Gypsy continued her relationship with him and in December of that year they proposed marriage to one another. She would eventually marry Jenkins in July 2009, after the stabbing incident that is the subject of this appeal.
Delvalle was devastated when Gypsy moved out, and he became very suspicious she was in a relationship with Jenkins. Delvalle confronted Jenkins about rumors he had heard that the two were together, but Jenkins denied the rumors. Delvalle and Jenkins stopped being friends.
Around January 1, 2008, Delvalle questioned Gypsy about whether she ever had an affair, and she admitted her affair with Jenkins. Delvalle became aggressive and began throwing things in front of the children. However, Gypsy attempted to reconcile with Delvalle, and she and her children moved back into his home.
On January 30 of that year, Delvalle found a letter from Jenkins to Gypsy and became very upset. He took Gypsy's car keys, broke her phone, and told her to write a letter to Jenkins telling him their relationship was over. She complied because she was scared and wanted the incident to end. Delvalle tore off a piece of paper and included with Gypsy's letter his own note to Jenkins. In that note, Delvalle stated that he hoped Jenkins would "walk" because Jenkins might be safer under the California Corrections Department. Jenkins interpreted Delvalle's note to be a threat.
Delvalle's noted stated: "Hey, you have something pending with me. I hope you walk, because you might be safer under C[alifornia] Corrections Department."
Later that night, Delvalle returned home drunk. He thought Gypsy had said something about Jenkins and started yelling at her in the bedroom in front of her daughter that she was a "fuckin' bitch" and he was going to kill her. Gypsy tried to leave the room, but Delvalle stood in front of her with his foot on the door. He then began unwrapping a vacuum cleaner cord while continuing to say he was going to kill her. Gypsy was able to leave the room when her youngest son somehow was able to open the door. Delvalle picked up a skateboard and pretended he was going to hit Gypsy's son with it. Her daughter was crying. Gypsy called the police and Delvalle left the house. A police officer came to the house and told her to call 911 if Delvalle returned and they would arrest him.
Delvalle returned home the next morning (January 31, 2008) and told Gypsy she had to be out of the house by the time he returned from work. He let Gypsy borrow his phone. When she refused to give it back, he began yelling at her in front of the children and told her she would die if she did not give it back to him. Delvalle left when she called 911. Later that morning she went to court and filed for and received a temporary restraining order. Gypsy testified that Delvalle called her and told her it was her fault that he was arrested.
Based on that incident, Delvalle was arrested and convicted of felony false imprisonment. He was incarcerated for several months. In February and March of 2008 two protective orders were issued on her behalf and on behalf of her three children.
Despite the January 31 incident and the restraining orders, Gypsy wrote several letters to Delvalle while he was in jail. She used a false name in order to keep Delvalle out of trouble for violating the restraining order. In those letters Gypsy told Delvalle she loved him, and she told him she had miscarried his baby. Gypsy testified "there was no truth to the letters, " and she wrote them to "joke around with his mind." She explained that she did that because Delvalle had abused her, and she acknowledged that when she wrote the letters she knew they were going to make him angry and he was going to be upset with her when he got out of jail.
Gypsy testified that Delvalle was released from custody in April or May of 2008. He contacted her several times to ask her for money or to visit their daughter. Gypsy refused to let Delvalle see their daughter despite court-ordered visitation because she did not approve of his living situation.
After he was released from jail, Delvalle repeatedly told Daniel Brookshire, his Narcotics Anonymous sponsor, that he wanted to kill Jenkins with his bare hands. Brookshire stated that Delvalle became obsessed with Gypsy's having left him, and it "[c]onsumed [Delvalle's] every thinking moment." On one occasion, Delvalle told Brookshire he wanted to kill Gypsy.
In December 2008 Gypsy became intimate again with Delvalle and she briefly moved back in with him at the end of the month. She testified she did so to avoid problems.
Also in December 2008 Jenkins was released from jail. Gypsy told Delvalle their relationship was over and she contacted Jenkins at the end of that month. She then resumed her relationship with Jenkins and they started living together in February 2009.
1. The April 20, 2009 incident
On April 20, 2009, the night before the stabbing, Gypsy and Jenkins were driving to her post office box when she saw Delvalle standing on the street and made eye contact with him. Delvalle yelled "Hey, asshole" while pointing at their car and then started running towards them. The closest he came to the car was about 15 to 25 feet. Delvalle Chaced them even as Gypsy drove away. Gypsy called the police and Delvalle's probation officer.
Later that night, Delvalle called Brookshire and left a voicemail message that Brookshire listened to the next morning. In the message, Delvalle told him about the April 20 incident. Brookshire testified that Delvalle stated he really wanted to hurt Jenkins.
2. The April 21, 2009 stabbings
The next day, April 21, 2009, Delvalle had an appointment at the Veterans Administration hospital in La Jolla, and he asked Kevin Robinson, an acquaintance, to give him a ride. Robinson agreed to give him a ride. As Robinson and Delvalle were driving to the hospital northbound on Interstate 5, Gypsy and Jenkins drove past them. Delvalle told Robinson to follow them, which he did. Gypsy and Jenkins exited the freeway and drove to a liquor store, parked their car, and went inside. As soon as Robinson parked his car where Delvalle told him to, Delvalle snatched a knife with a small blade that was in the car and told him, "I'll be right back." Robinson started to follow Delvalle, but ran back to his car when he saw Delvalle slashing Gypsy's tires.
After buying cigarettes, Gypsy and Jenkins walked out of the store. Gypsy, who was in front of Jenkins, saw Delvalle approaching them and tried to warn Jenkins, saying, "Baby, it's him. It's [Delvalle]." Gypsy and Jenkins testified that Delvalle then stabbed Jenkins in the abdomen. Jenkins tried to run back inside the liquor store, but slipped on his own blood and fell. Delvalle then stabbed Jenkins several more times, started to walk away, came back, and stabbed Jenkins a couple more times. The manager of the liquor store witnessed the stabbings. A surveillance camera videotape showing Delvalle stabbing Jenkins was admitted into evidence and played for the jury.
Gypsy ran as soon as Delvalle began stabbing Jenkins. When he finished stabbing Jenkins, Delvalle chased after Gypsy, found her on the street, and called her name. Delvalle said, "I killed your boyfriend. Now I'm going to kill you." Gypsy testified that Delvalle was upset, but he was not yelling. Gypsy stated that Delvalle, who was holding a bloody knife, then stabbed the left side of her neck and she fell to her knees. She tried to call 911 and told Delvalle, "they're looking for you." Delvalle then stabbed her in the face, lacerating her left cheek. Delvalle ran away.
A bystander assisted Jenkins, who was soon taken to a hospital where he underwent emergency surgery. Jenkins testified that his injuries included a wound that went entirely through his large intestine, a lacerated liver, a wound through his left hand, and a wound to his left shoulder. The stabbing left him with permanent scars on his abdomen. Gypsy testified that she has scars on her neck and left cheek.
3. Delvalle's self-incriminating statements after the stabbings
Delvalle made his way to the Veterans Administration hospital, where he called Brookshire and told him, "I did it. I got him. And right now I'm getting stitched up."
Detective Timothy Faubel of the San Diego Police Department testified that he contacted the head of security at the hospital, who located Delvalle standing in line to have a prescription filled and detained him. After he entered the room where Delvalle was being detained, Detective Faubel identified himself to Delvalle as a police officer and said, "You know why I'm here, don't you?"
Detective Faubel stated that Delvalle "almost [looked] like he was relieved, " and Delvalle then asked an unsolicited question as to whether Detective Faubel was married or had a girlfriend. When Detective Faubel did not respond, Delvalle then said:
"I swear it was a heat of passion. I saw my wife with him, and I went crazy. First I stabbed [Jenkins] several times and then ran after my wife and stabbed her. I hated seeing my wife with somebody else." (Italics added.)
After a long pause, Detective Faubel said, "I understand what you're saying. I feel for you." Delvalle continued to make unsolicited statements. He said, "You know how it is, right?" Detective Faubel replied, "No." Delvalle then said, "I just wanted to kill him." Detective Faubel responded by saying, "Well, it's going to be okay because both of them are alive." Delvalle replied:
"What? What the fuck? I thought I killed him. I wanted to kill him so bad." (Italics added.)
Detective Faubel testified that Delvalle's foregoing unsolicited statements were followed by another long pause, and then Delvalle asked whether Detective Faubel was going to include this information in a police report, but Detective Faubel did not respond. Detective Faubel stated he arrested Delvalle, who was transported to the police station.
B. The Defense
Delvalle testified in his own defense. He indicated that he and Gypsy fought during their marriage and were both aggressors in these fights. They both attended Narcotics Anonymous.
Delvalle invited Jenkins to live with them because Jenkins was not working, had no bed, and lived with a sick dog. Delvalle thought he might be able to help him. Delvalle asked Jenkins to leave because Delvalle ended up supporting him for four months. He did not know at that time that Jenkins and his wife were having an affair.
Delvalle testified that Gypsy moved out in mid-2007. She left with the children while he was at work. She and the children moved back into his home in December 2007. He heard rumors that Jenkins and Gypsy had been seen together. In early January 2008 Delvalle asked Gypsy whether she had been unfaithful to their marriage, and she admitted she had sex with Jenkins twice in a hotel room. Delvalle testified he could not bear hearing that, but they continued living together. Gypsy told him she was no longer communicating with Jenkins.
Delvalle stated he found a letter Jenkins had written to Gypsy from jail that implied Jenkins had an ongoing relationship with Gypsy. He confronted her and they argued in the bedroom. Delvalle admitted he pleaded guilty to false imprisonment and went to jail because he kept the bedroom door closed.
Regarding the April 20, 2009 incident, Delvalle testified that after he spotted Gypsy's car with Jenkins in the passenger seat, he wanted to discuss his and Gypsy's daughter; he yelled out, "Hey, asshole. Stop. I need to talk." He then ran after her car. He was concerned about their daughter being around Jenkins.
Delvalle stated that the next morning, as Robinson was driving him to his medical appointment, he spotted Gypsy and Jenkins on the freeway, and he told Robinson to follow them because he wanted to ask them some questions. He grabbed Robinson's knife because Jenkins was a comparative "super heavyweight." He stated he slashed Gypsy's tires because he "didn't want them to leave and escape like they did the night before." He admitted he waited for Gypsy and Jenkins to come out of the liquor store, he had the knife in his right hand, and they never exchanged words. He stated that he "launch[ed] towards [Jenkins] with a left hook" and started stabbing him. He also stated he was "very devastated, " he "wasn't [him]self, " and he was trying to hurt Jenkins but not kill him.
Delvalle admitted that he pursued Gypsy after he stabbed Jenkins about seven times. He denied that he wanted to kill her, admitted that he told her he thought he had killed Jenkins, and denied that he told her he was going to kill her next. He admitted that Gypsy had her phone out and that she told him the police were coming.
Delvalle admitted he stabbed Gypsy "under her mandible area." He stated he did not want to attack Gypsy and "[i]t just happened." He testified that he tried to help her up off the ground, and that he "felt for her."
Delvalle also testified that after he went to the hospital for treatment of his thumb that was sliced during one of the stabbings, he spoke to a police officer and "did some unsolicited remarks to the cop." (Italics added.) He told the officer that he lost control in a heat of passion. He denied going to the liquor store that morning intending to kill Gypsy or Jenkins and indicated he never intended to kill either of them.
On cross-examination, Delvalle admitted he sent Jenkins a note in jail after he discovered the affair. He denied, however, that he intended the note to be a threat. He testified he only wanted to give Jenkins "a piece of my mind."
Delvalle also admitted he told Brookshire he wanted to kill Jenkins and that he told Gypsy, "You're going to die." However, he denied that he threatened her with a vacuum cleaner cord.
Delvalle also acknowledged on cross-examination that, as part of his probation following his felony false imprisonment conviction, he participated in a 52-week domestic violence recovery program that dealt with the issues of anger management and how to "deal with situations" without "fly[ing] off the handle." At the time of the stabbings, Delvalle had not completed the program. He admitted he became "obsessed with the fact that [Jenkins] took [his] wife away" and that he "could have moved on" after one and a half years. He then stated he "couldn't" move on because he was "broken-hearted."
DISCUSSION
I. MIRANDA
Delvalle first contends the judgment must be reversed because the court violated his Fifth Amendment privilege against self-incrimination by denying his motion to suppress the self-incriminating statements he made to the police officer while in custody at the hospital, because the officer's initial remark to Delvalle─"You know why I'm here, don't you?"─"amounted to a[n] inquiry reasonably calling for an incriminating response" within the meaning of Miranda, supra, 384 U.S. 436 and Innis, supra, 446 U.S. 291, and thus the officer's failure to first advise Delvalle of his Miranda rights required exclusion of Delvalle's statements. We reject this contention.
A. Background: Delvalle's Motion To Exclude His Self-incriminating Statements
The defense brought a pretrial motion to exclude the self-incriminating statements he made to Detective Faubel at the hospital. At the hearing on the motion, defense counsel argued that, "if the officer started the conversation, [Delvalle] should have been Mirandized, and... those statements should be excluded."
After the prosecutor listed the various self-incriminating statements Delvalle made to Detective Faubel, the court asked, "[T]his was unsolicited?" The prosecutor replied:
"That's correct. As [defense counsel] said, he was in a hospital room. The officer walked in in plain clothes. He had a gun on him, but the gun was not exposed. The only words out of the officer's mouth were... 'Do you know... why I'm here?' And then, at that point, Delvalle just starts saying─the first words out of his mouth are, 'Are you married?' Talking to the detective. 'Are you married? Do you have a girlfriend?' Detective [Faubel] doesn't say anything, and then [Delvalle] just starts talking."
The court then denied the in limine motion to exclude Delvalle's statements, reasoning that "it appears to be a spontaneous statement."
B. Applicable Legal Principles
1. The Miranda rule and the meaning of "interrogation"
Miranda warnings are required only when a person is being subjected to custodial interrogation. (Miranda, supra, 384 U.S. at pp. 444, 478.)
The California Supreme Court has explained that "[i]n Miranda, the court laid down a rule of a 'prophylactic' nature [citation] in order to protect the privilege against self-incrimination of the Fifth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment: '[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant [by law enforcement officers] unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.... Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.' " (People v. Waidla (2000) 22 Cal.4th 690, 726-727, quoting Miranda, supra, 384 U.S. at p. 444.)
In Innis, supra, 446 U.S. at pages 300-302, the United States Supreme Court defined the term "interrogation, " stating that "the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." (Fns. omitted.)
"[V]olunteered statements not the product of interrogation are admissible." (People v. Edwards (1991) 54 Cal.3d 787, 815.) A police officer is not obligated to prevent a suspect from volunteering incriminating statements. (Id. at p. 816.)
2. Standard of review
The standard of review that governs an appellate court's determination regarding a claim that a statement or confession was inadmissible because it was obtained in violation of a defendant's Miranda rights is well-established. "We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported." (People v. Boyer (1989) 48 Cal.3d 247, 263, cert. denied sub nom. California v. Boyer (1989)493 U.S. 975, disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained." (Boyer, supra, at p. 263; see also People v. Box (2000) 23 Cal.4th 1153, 1194.) " 'We apply federal standards in reviewing a defendant's claim that the challenged statements were elicited from [the defendant] in violation of Miranda.' " (People v. Box, supra, 23 Cal.4th at p. 1194, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.)
C. Analysis
We conclude Delvalle was not entitled to Miranda warnings before he made his self-incriminating statements because Detective Faubel's initial remark, although in the form of a question, was not the functional equivalent of interrogation for purposes of Miranda because it merely called for a "yes" or "no" answer as to whether Delvalle knew why the detective was there, and under applicable California Supreme Court precedent it was not the type of statement the detective should have known was reasonably likely to elicit an incriminating response. (See Innis, supra, 446 U.S. at pp. 300-302.)
In People v. Haley (2004) 34 Cal.4th 283 (Haley), which involved a first degree murder prosecution, a detective told the defendant, "[W]e know that you did kill [the victim], " after informing him that his fingerprints were found at the crime scene; and the defendant replied, "You're right. I did it." (Id. at pp. 296, 300.) The Supreme Court held that the defendant's self-incriminating statements to the detective were voluntary and not the product of an interrogation within the meaning of Miranda because the detective did not phrase his statement to the defendant as a question, and the statement did not call for an incriminating response. (Haley, at p. 302.) The high court reasoned that "[a] brief statement informing an in-custody defendant about the evidence that is against him is not the functional equivalent of interrogation because it is not the type of statement likely to elicit an incriminating response." (Id. at p. 302.)
Haley is fatal to Delvalle's claim that Detective Faubel's statement was the functional equivalent of interrogation for purposes of Miranda. Although Detective Faubel (unlike the detective in Haley) did phrase his statement in the form of a question, it merely called for a "yes" or "no" answer as to whether Delvalle knew why the officer, who had identified himself as a police officer but was wearing civilian clothing, was there. In our view such a question is less likely to elicit an incriminating response from a suspect in Delvalle's position than the statement made by the detective in Haley that he "knew" the defendant killed the victim because the defendant's fingerprints were found at the crime scene. Unlike the Haley defendant, Delvalle was not confronted with a police officer telling him the officer knew he had committed an offense and informing him of specific evidence indicating he was the perpetrator.
Furthermore, the record here shows that Delvalle did not respond to Detective Faubel's initial question, but rather asked Detective Faubel whether Faubel was married or had a girlfriend. When the detective did not respond, Delvalle volunteered the self-incriminating statement that, "First I stabbed [Jenkins] several times and then ran after my wife and stabbed her."
Detective Faubel did not respond to this admission with any statement or question and was under no obligation to prevent Delvalle from volunteering incriminating statements. (See People v. Edwards, supra, 54 Cal.3d at p. 815.) The detective expressed some empathy, stating, "I understand what you're saying. I feel for you." Delvalle responded by volunteering additional unsolicited and self-incriminating statements. Specifically, he asked whether Detective Faubel knew "how it is, " and, when the detective replied "No, " Delvalle volunteered the statement that he "just wanted to kill [Jenkins]."
After Delvalle admitted that he had stabbed Jenkins and Gypsy and had wanted to kill Jenkins, Detective Faubel informed Delvalle that Jenkins and Gypsy were both alive. Delvalle responded by volunteering additional self-incriminating statements that he thought he had killed Jenkins and that he "wanted to kill him so bad."
In light of Haley and based on the foregoing record, we conclude Delvalle's self-incriminating statements were unsolicited, voluntary admissions that were not the product of an interrogation within the meaning of Miranda, supra, 384 U.S. 436 and Innis, supra, 446 U.S. 291. We find additional support for this conclusion in Delvalle's own testimony at trial that his statements to Detective Faubel were unsolicited. Even defense counsel acknowledged at the hearing on Delvalle's in limine motion that Delvalle "ma[d]e a gaggle of unsolicited statements." Accordingly, we hold the court did not err in denying Delvalle's motion to exclude his self-incriminating statements.
II. INSTRUCTIONAL ERROR CLAIM
Delvalle also contends the court prejudicially erred by refusing to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on the theory that the adulterous conduct of Gypsy and Jenkins provoked him into stabbing them in a sudden quarrel and under the heat of passion. We reject this contention.
A. Background
The court denied Delvalle's request for an attempted voluntary manslaughter instruction based on heat of passion, reasoning that (1) there was insufficient provocation, and (2) there was a "more than sufficient cooling-off period." Specifically, the court stated:
"[W]e have to look at the sufficiency of the provocation. And obviously the infidelity of a lover is a time-honored one, but the analysis doesn't simply stop there. The question becomes one of what was the provocation? And here, in this particular case, [Jenkins and Gypsy] were simply seen together. [Delvalle] cannot use his own standard. Basically, unrestrained, unprovoked rage. And he obviously is a person that has an extremely violent temper. And the fact that the night before he was medicated, he may have some psychological disfunctions; but that, in and of itself, does not provide provocation by the victim or victims in this particular case. [¶] [T]herefore, as I've had counsel go through... the elements of this particular statute where, again, the only thing [Jenkins and Gypsy have] done to provoke [Delvalle] is to be together. I realize that there has been a history there, but you look at that history. There's also been a more than sufficient cooling-off period. Actually, he did testify there was no intent to kill. [Delvalle] admitted he was not provoked that day. And then, when you go into the average disposition of the average person and what we'd expect of them, ... I don't think that the average person would [(1)] be provoked in the manner [Delvalle] was; and [(2)] act the way he has acted. [¶] So, based on all of this, I do not find that a rational, reasonable jury would find this to be. There... is not sufficient evidence to merit consideration by the jury, so the defense request for a voluntary manslaughter instruction will be denied." (Italics added.)
B. Applicable Legal Principles
1. Sua sponte instructional rule
The California Supreme Court has explained that " ' "[i]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
Thus, "[a] court must 'instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.' " (People v. Coddington (2000) 23 Cal.4th 529, 591, quoting Breverman, supra, 19 Cal.4th at p. 162.) "[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." (Breverman, supra, 19 Cal.4th at p. 162.)
In a noncapital case such as this, "error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818]. A conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d [at p.] 836)." (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)
We review de novo a claim of instructional error. (People v. Posey (2004) 32 Cal.4th 193, 218.)
2. Heat of passion theory of voluntary manslaughter
"Murder requires proof of an unlawful killing of a human being committed with malice." (People v. Sanchez (2001) 24 Cal.4th 983, 988, citing § 187, subd. (a).) "Manslaughter is the unlawful killing of a human being without malice." (§ 192.) A manslaughter offense is voluntary when the killing is "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).)
In People v. Lee (1999) 20 Cal.4th 47, 59 (Lee), the California Supreme Court explained that "manslaughter has been considered a lesser, necessarily included, offense of intentional murder. Generally, an intent to unlawfully kill reflects malice. [Citations.] An unlawful killing with malice is murder. [Citation.] Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation [citation], or kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. [Citation.] Only these circumstances negate malice when a defendant intends to kill." (Italics added.)
The Lee court also explained that "[a]lthough section 192, subdivision (a), refers to 'sudden quarrel or heat of passion, ' the factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation. 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. [Citations.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' " (Lee, supra, 20 Cal.4th at p. 59, italics added.)
Thus, as the Supreme Court explained in People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144 (Gutierrez), " '[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting... section 192, "this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, " because "no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." [Citation.]' [Citation.] [¶] 'To satisfy the objective or "reasonable person" element of this form of voluntary manslaughter, the accused's heat of passion must be due to "sufficient provocation." ' " (Italics added.)
" '[I]f sufficient time has ela[ps]ed for the passions of an ordinarily reasonable person to cool, a killing is murder, not voluntary manslaughter.' " (People v. Daniels (1991) 52 Cal.3d 815, 868, 837 [defendant rendered paraplegic when shot by police officers during a bank robbery was not entitled, as a matter of law, to an instruction on voluntary manslaughter when he killed officers attempting to arrest him two years and three months later].) Thus, as pertinent here, an attempted killing is attempted murder, not attempted voluntary manslaughter, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool. (See id. at p. 868.)
C. Analysis
Delvalle contends the record demonstrates he "acted under the influence of intense emotion induced by [Jenkins's and Gypsy's] conduct, " and thus "substantial evidence merited the jury's consideration of the heat of passion theory of voluntary manslaughter." Specifically, he asserts substantial evidence shows "the prior history between the parties induced [his] irrational actions on the day of the stabbing, " and "[s]uch evidence, contrary to the holding of the trial court, provided adequate evidence of objective provocation occurring over a lengthy period of time." (Italics added.) His discovery that a romantic relationship had resumed between Gypsy and Jenkins, Delvalle contends, would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. These contentions are unavailing.
Viewing objectively the circumstances that allegedly gave rise to Delvalle's claimed heat of passion, as we must (Gutierrez, supra, 28 Cal.4th at p. 1143), we conclude he has failed to meet his burden of showing the existence of substantial evidence from which a reasonable trier of fact could find the victims' conduct was sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (See Lee, supra, 20 Cal.4th at p. 59.) We are guided in our analysis by the decisions in People v. Hach (2009) 176 Cal.App.4th 1450 (Hach) and People v. Hudgins (1967) 252 Cal.App.2d 174 (Hudgins), which are factually similar to the instant case.
In Hach, the defendant and his common law wife (Yip) had lived together for over six years when she met the victim (Chace) on a telephone chat line. (Hach, supra, 176 Cal.App.4th at p. 1453.) One night, after telling defendant she was going out with friends, Yip spent the night with Chace. The next day, after she and defendant got into an argument, Yip packed her things, went to her mother's home, and spent the next four days with Chace. (Ibid.) The night before the murder, after Yip returned home and fell asleep, Chace called, defendant answered the telephone, and Chace said he was Yip's "man." (Ibid.) The next day, she and defendant again argued, she told him she did not want to be with him, and she left, found Chace, and drove him to a park. (Ibid.) When Yip did not return home, defendant asked a friend to drive him to various parks, and eventually found Yip in a park around midnight with Chace in her car and with the seats reclined. (Id. at p. 1454.) When defendant got out of his friend's car with a gun, tapped on Yip's windshield, and yelled, "[G]et out, " Yip told him not to shoot, started the car, and started driving away after Chace told defendant he did not want any problems. (Ibid.) Defendant fired the gun at Chace, who died from a gunshot wound to the head. (Ibid.) The Court of Appeal affirmed the Hach defendant's second degree murder conviction, concluding "[t]here was insufficient evidence of heat of passion." (Id. at p. 1459.) Noting that the claimed provocation "occurred over several days" (id. at p. 1458), the court stated that defendant "had sufficient time to cool down after his quarrel with [Yip] the afternoon of the shooting" notwithstanding both the victim's statement the night before that he was the wife's "man, " and defendant's "smoldering jealousy" that led to the fatal act. (Id. at pp. 1458-1459.)
In Hudgins, the defendant, who was consumed with jealousy, threatened and beat his wife, to whom he had been married for five years. (Hudgins, supra, 252 Cal.App.2d at pp. 177, 179-180.) The wife obtained a court order restraining defendant from going into her home, but defendant was thereafter seen prowling around outside her home. (Id. at p. 177.) One evening, almost a month after she obtained the restraining order, the wife spent the evening with a friend (the victim) and returned home with him after midnight. (Ibid.) Defendant then entered the home, shot and mortally wounded the victim, threatened his wife with the gun, and told her, "See what I did to your boyfriend; that is what I am going to do to you, " but left without shooting her. (Id. at p. 178.) At trial, the court refused defendant's request for a voluntary manslaughter instruction, and a jury convicted him of second degree murder. (Id. at pp. 177, 178-179.) Defendant appealed, asserting the evidence showed "the events culminating in the death of [the victim] were the outgrowth of a saturating jealousy infused in the defendant by his wife of over five years standing, and were brought to a head when her male companion brought [his wife] home.... The defendant could contain his jealousy no longer and broke into the house in pursuit of the person he reasonably felt was his wife's paramour." (Id. at p. 179, italics added.)
Rejecting this contention and concluding the trial court properly refused the defense request for a voluntary manslaughter instruction, the Court of Appeal in Hudgins explained that "[t]here was no evidence of a sudden quarrel, but only proof of a violent attack by an armed man upon one who was unarmed and who made a futile attempt to save his own life. There was no sudden heat of passion, but only evidence of a persistent, brooding jealousy which spurred appellant to a decision to arm himself and lie in wait for a victim. All the evidence indicated it was not a sudden, impetuous decision, acted upon without time and opportunity for reflection and the cooling off of suddenly aroused emotion. It was a decision reached after long deliberation and meditation, and careful preparation to carry into execution the threats appellant had repeatedly uttered. Upon these facts the killing was not manslaughter; it was, at the least, murder of the second degree." (Id. at p. 181, italics added.)
Here, as in Hudgins, there was no substantial evidence of sudden, objectively reasonable heat of passion. On the contrary, all the evidence, viewed objectively, indicated that Delvalle, like the defendant in Hach, had sufficient time to cool down after his two encounters with Gypsy and Jenkins on April 20 and 21, 2009. (Hach, supra, 176 Cal.App.4th at pp. 1458-1459.) The timeline and nature of events disclosed by the record show there is no substantial evidence of provocation that would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and thus there was insufficient evidence to warrant instructing the jury on the heat of passion theory of voluntary manslaughter.
Specifically, the evidence shows that after she left Delvalle, Gypsy filed for divorce in October 2007, about 18 months before he stabbed her and Jenkins on April 21, 2009. In early January 2008, more than two months after Gypsy filed for divorce, she told Delvalle that she and Jenkins had been having an affair. Later that month on January 30, about 15 months before the stabbings, Delvalle found Jenkins's letter to Gypsy, causing him to become very upset. Delvalle threatened Gypsy that night in the bedroom while preventing her from leaving the room, which resulted in his conviction and incarceration for false imprisonment. Although Gypsy again became intimate with Delvalle 11 months later in December 2008 after he was released from custody, she informed him soon thereafter that their relationship was over; and in February 2009 she started living with Jenkins, who had recently been released from custody. About two months later, on April 20, 2009, the night before the stabbings, Delvalle saw Gypsy and Jenkins together in a car driving by and yelled, "Hey, asshole, " and ran after the car. Finally, the next day, April 21, Delvalle again saw Gypsy and Jenkins driving by on the northbound Interstate 5 freeway as Robinson was giving Delvalle a ride to a hospital. Delvalle told Robinson to follow them, told him where to park after Gypsy and Jenkins arrived at the liquor store, and then waited for them and stabbed them when they came out.
The claimed provocation of merely encountering Gypsy and Jenkins driving together in a car on April 20 and 21 is objectively less provocative than the encounter between the Hudgins defendant and his victims. In Hudgins, the defendant claimed he was sufficiently provoked when he saw his wife and her male companion entering her home after midnight. (See Hudgins, supra, 252 Cal.App.2d at pp. 177, 181.) The Hudgins court rejected that contention. Similarly, we reject Delvalle's claim he was sufficiently provoked by his two encounters with his victims.
We also reject Delvalle's contention that the prior history of the parties in this case "induced [his] irrational actions on the day of the stabbing" and that there is "adequate evidence of objective provocation occurring over a lengthy period of time." Like the evidence of the prior history of the parties in Hudgins, supra, 252 Cal.App.2d 174, all the evidence of Delvalle's prior history with Gypsy and Jenkins shows no sudden and objectively reasonable heat of passion at the time he stabbed them; all the evidence shows only a "persistent, brooding jealousy" that "spurred [him] to a decision to arm himself and lie in wait for [his] victim[s]." (See Hudgins, supra, 252 Cal.App.2d at p. 181.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.