Opinion
B296116
07-02-2020
THE PEOPLE, Plaintiff and Respondent, v. HORACIO FLORES-CASTRO, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA115670) APPEAL from an order of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed, with instructions. Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
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The jury found defendant and appellant Horacio Flores-Castro guilty of deliberate, premeditated attempted murder. (Pen. Code, §§ 187, subd. (a), 664.) It also found true the allegation that Flores-Castro personally inflicted great bodily harm under circumstances involving domestic violence (§ 12022.7, subd. (e)), and personally and intentionally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). Flores-Castro was sentenced to life plus five years in state prison, and awarded 593 days of actual presentence custody credit.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Flores-Castro contends that (1) the trial court abused its discretion by admitting speculative and irrelevant testimony, (2) trial counsel provided ineffective assistance by failing to object to speculative and irrelevant testimony, (3) the evidence was insufficient to establish that the attempted murder was premeditated and deliberate, (4) trial counsel provided ineffective assistance by failing to request an instruction on the effect of provocation in determining the degree of murder, (5) he was prejudiced by the cumulative trial errors, and (6) the trial court miscalculated the number of presentence custody credits to which Flores-Castro was entitled.
We order the abstract of judgment corrected to reflect that Flores-Castro is entitled to 594 days of actual presentence custody credit, but otherwise affirm the judgment.
FACTS
On June 30, 2017, the date of the offense, Flores-Castro had been married to the victim for over five years. They lived with her adult children from a previous marriage.
Initially, Flores-Castro and the victim had a good relationship, but after a year or two, that changed and "[h]e was always angry." He would tell her to just cook and be quiet. Flores-Castro insulted the victim, saying that she was old and had a "big gut." He also insulted her oldest son and called him derogatory names. Flores-Castro swore at the victim frequently, which made her cry, and then he would tell her to stop crying. Flores-Castro "struggled with jealousy," and often accused the victim of being unfaithful. He forbade the victim to visit her family. He also threatened that if she went out without telling him, "then you'll see." As a result, the victim only went out with her son, but she did ignore Flores-Castro and continue to see her family. She did not think Flores-Castro would hurt her.
Flores-Castro had never been physically violent before the day of the incident, but he had threatened the victim several times. Once, when he did not want her to go to a wedding, he warned that "should [you] go, you don't know what I'm about." The victim took it as a threat, but thought he meant he would be angry with her.
On another occasion, Flores-Castro and the victim went to the beach together. The victim had never gone to the beach and did not know how to swim. Flores-Castro tried to make her fall by grabbing her feet and dragging her underwater. He pulled her in deeper and she tried to get away but could not. The victim was scared because she thought Flores-Castro was trying to drown her. His face looked "serious."
In March of 2018, the victim tried to obtain a restraining order against Flores-Castro because she was tired of him insulting her and her children. She went to the self-help clinic to get assistance. The volunteers told her that her grounds for seeking the restraining order were insufficient because Flores-Castro had only been insulting and made a few threats. She mentioned to the volunteers that she wanted to divorce Flores-Castro.
Flores-Castro threatened to kill the victim less than a week before the attempted murder. She had been invited to another family gathering that Flores-Castro did not want her to attend. When she said she would go with her son, Flores-Castro responded: "You don't know who I am. If you do not do as I say, I'm capable of killing you . . . it's best that you not tempt me." The victim thought that Flores-Castro was just trying to scare her and responded "[y]ou're not capable of killing even a cockroach."
On the date of the incident, Flores-Castro arrived home from work at approximately 1:30 a.m. He took off his clothes and said he wanted to have sex. When the victim refused, Flores-Castro got upset and accused her of being an unfaithful whore. He continued insulting her, so the victim told him that if he did not lower his voice, she would call the police. She wanted Flores-Castro to stop insulting her and shaming her in front of her son, who was also in the house. Flores-Castro said he did not care if the victim called the police.
At some point the victim left to sleep on the living room sofa. Flores-Castro followed her and harassed her, tweaking her nose and pulling her ponytail. She told Flores-Castro to stop and asked him to let her sleep. He continued to harass her, but finally he went into the bedroom around 5:00 a.m.
The victim remained on the couch trying to fall asleep, but eventually got up around 7:00 a.m., when her son left for work. She locked herself in her son's room and lay down until around 9:00 or 10:00 a.m. She went into the kitchen and started preparing green beans. There was a small knife on the kitchen counter, but she did not use it. There were also larger knives in a wooden block and in one of the kitchen drawers with the other utensils.
Around 10:30 a.m., Flores-Castro came out of the bedroom carrying a trash can. He showed it to the victim and asked whether the liquid in it was water or urine. He pulled some paper from the can and put it under the victim's nose. Flores-Castro told the victim she should leave and accused her of being unfaithful. The victim responded that if Flores-Castro wanted to separate, that they should discuss it like adults.
Flores-Castro continued to insist that she leave and said that "it's best that you just get out before something happens." When she suggested that they sit down and talk, Flores-Castro returned to the bedroom and closed the door. Flores-Castro raised his voice during the incident, but the victim did not. She just let him yell at her, and she responded calmly. She had only seen Flores-Castro this angry on one other occasion.
The victim stood outside the bedroom door, and asked Flores-Castro to open it so that they could talk. She then opened the door and repeated her request to discuss the situation. The victim testified that Flores-Castro then "looked at me ugly and he came really quick. I was in the hallway and he goes by, and he throws me really hard. I hit my head and I saw darkness; and also my lungs, I couldn't breathe. It was for some seconds. And then he goes really calmly to the balcony."
The victim was scared and started crying, but she did not feel that she could let his actions pass. She followed Flores-Castro out to the balcony, told him this was "the first and last time that you touch me," and said she was going to call the police. Flores-Castro went into a hallway near the kitchen. The victim followed him, but stood near the door so that she could run if he tried to hit her again.
Flores-Castro stared at her steadily. He looked angry. The victim became nervous and started crying again. She called the police. The victim only spoke Spanish, so the operator put her on hold. As soon as she was placed on hold, Flores-Castro went into the kitchen, and the victim heard what she thought was "metal from the spoons" and then "all of sudden he comes out with a knife" held in his right hand raised next to his ear. The victim believed Flores-Castro was going to kill her. Flores-Castro stopped for a few seconds, not speaking, looking her up and down. He had hatred in his eyes.
Flores-Castro then attempted to stab the victim "directly [in her] heart." The victim grabbed Flores-Castro's hand and tried to fight him off, but Flores-Castro was too strong and he stabbed her in the chest on her left side. They continued to struggle, and Flores-Castro stabbed her multiple times. The victim's screaming was recorded in the 911 call, which was played for the jury.
The victim cried out for help and tried to get the knife away from Flores-Castro. Eventually she was able to take the knife from him. She tried to open the front door, but Flores-Castro grabbed her by the shoulders. Suddenly he left, and the victim heard metal clanging in the kitchen drawer again. She was afraid that Flores-Castro was getting another knife, so she ran outside. Flores-Castro came to the door and looked at her, but then went back inside.
The victim was afraid that if she kept the knife, Flores-Castro would be able to wrestle it from her and kill her, so she threw it into the bushes from the third-floor balcony, and ran down the stairs, yelling for help. She felt very weak, and her stomach was bleeding badly. She was able to get a maintenance worker's attention, and he helped her and called the police.
When the police arrived, the victim was sitting on a block wall. Her clothes were covered in blood and there was a trail of blood leading back to her apartment. The police recovered a foot-long knife with a seven-inch blade at the base of the apartment building's balcony.
As they were preparing to enter the couple's apartment, Flores-Castro appeared on the balcony. The police ordered him to come down. He complied, and the police arrested him. He did not appear to be intoxicated. He was cooperative, and his demeanor was "stoic . . . relatively calm."
The police searched the apartment. There was blood on the ground in the front entry way, the hallway walls, and the front door. They also found eight empty beer bottles on the balcony.
When the police spoke with the victim about the incident she told them that Flores-Castro drank a beer after he woke up that morning. She also told the police that the knife Flores-Castro used to stab her was the "big knife" from the wooden block in the kitchen.
At trial, the victim testified that Flores-Castro drank a beer when he returned from work, but was sober on the morning of the attack. She did not remember her testimony at the preliminary hearing that he starting drinking a beer during their confrontation.
The paramedics arrived and transported the victim to the hospital. She had surgery and was hospitalized for four days. She suffered a total of nine stab wounds. She was stabbed on the left side of her neck near her carotid artery, her left chest, her stomach/liver area, the side of her lower stomach, both hands, the inside of both forearms, and on her arm near her elbow.
The victim's son testified that he had been living with his mother and Flores-Castro since September 2014. At first their relationship was fine, but at some point they began to argue and in the weeks before the incident, they fought and argued a lot. Flores-Castro was verbally abusive to his mother, humiliating her and not allowing her to go out, but he had never seen Flores-Castro hit his mother. One time, when Flores-Castro and the victim were arguing, he heard his mother say "[y]ou can't kill an insect." Another time, when his mother wanted to go to a family party, he heard Flores-Castro tell her "if she went . . . I'm warning you." The victim's son knew that she wanted to separate from or divorce Flores-Castro. She was filling out paperwork in connection with the divorce saying Flores-Castro mistreated her, but it was not approved because she had not presented evidence of physical mistreatment.
On the day of the incident, the victim's son woke up around 7:00 a.m. and saw his mother sleeping on the living room couch. He thought, "oh my God they fought again," although he had not heard them fighting. Later that morning when he returned to the apartment and learned what had happened to his mother, he was afraid and felt like he was "in a nightmare."
DISCUSSION
Admission of Testimony
Flores-Castro's first contentions on appeal relate to the admission of (1) the victim's testimony that he looked over and analyzed her body just prior to stabbing her, (2) the testimony of both the victim and her son that she attempted to get a restraining order against Flores-Castro previously, and (3) the victim's testimony that she believed Flores-Castro was attempting to drown her in the incident at the beach. The People argue that Flores-Castro forfeited these issues at trial. Flores-Castro asserts that defense counsel properly objected to admission of the victim's testimony that he analyzed her body, thereby preserving the issue for appeal. With respect to the testimony regarding the restraining order and the beach incident, Flores-Castro admits forfeiture, but argues that he was prejudiced by his counsel's failure to object. We conclude that the trial court did not abuse its discretion in admitting the challenged testimony. Even if we were to assume that Flores-Castro's first challenge was preserved, all three of his challenges fail on the merits, and he cannot establish ineffective assistance of counsel with respect to his second and third challenges.
Proceedings
Prior to trial, the prosecutor moved to admit evidence of Flores-Castro's threats and verbal abuse of the victim and her fear of him under Evidence Code sections 1101 and 1109, through testimony of the victim and her son. At a hearing on the matter, the prosecutor explained that the testimony was relevant to prove motive and premeditation and deliberation. She argued that the incidents occurred during the course of the victim's five-year relationship with Flores-Castro, and were therefore within the proscribed statutory period. Moreover, the incidents were not inflammatory or prejudicial in comparison to the offenses charged, as they involved no physical violence.
Defense counsel argued that the victim's son was not a percipient witness to the charged offenses and could offer no information regarding what happened at the scene of the crime. He expressed concern that the prosecution would attempt to utilize the son's testimony regarding "the everyday fighting that goes on with couples" to show premeditation, although such evidence was irrelevant and prejudicial.
Defense counsel moved to exclude all testimony regarding the fact that the victim contemplated obtaining a restraining order before the attack, because there was no accompanying report or "specifics." Counsel also moved to exclude the victim's testimony that Flores-Castro was "looking her over prior to the stabbing," arguing that such testimony would call for speculation.
The prosecutor responded that the victim did not merely consider getting a restraining order, she filed for a restraining order with the court. The request for the restraining order was denied because Flores-Castro had not physically abused her. The prosecutor argued that the restraining order was relevant to the victim's state of mind. In the preliminary hearing, the victim testified that she pulled the knife away from Flores-Castro, which raised the possibility of claims that she was the aggressor. The victim's attempt to get a restraining order contradicted that theory. Most importantly, the attempt to get a restraining order corroborated that Flores-Castro had threatened the victim before, that she was afraid, and that she had taken whatever measures she could to protect herself and her children. Threats are admissible under Evidence Code section 1109.
The prosecutor argued that the victim's son had heard Flores-Castro threatening his mother in the past, warning her, and calling her "terrible names." He also knew that the victim was planning to divorce Flores-Castro. All of this evidence went to motive and premeditation. Flores-Castro's pattern of threatening his wife, her fear based on his threats, and her attempt to get a restraining order all indicated planning and premeditation. The evidence was also probative of absence of mistake, motive, and intent. The court could instruct the jury on the limited purposes for which they could consider the evidence.
Finally, although the victim could not describe what Flores-Castro was thinking, her observations of his movements and demeanor were admissible, and her anticipated testimony that he was examining her body with his eyes as if deciding where to stab her was a description of his demeanor, which should be admitted.
Defense counsel replied that the threats and request for a restraining order were too remote to be probative of the instant crimes.
The court noted that remoteness in time was not the sole consideration; a pattern occurring over a long period of time could be relevant. The previous threats to kill the victim were directly probative of her mental state, the reasonableness of her fear, and, less directly, premeditation and deliberation under Evidence Code sections 1101, subdivision (b), and 1109. The court found that all of the proffered evidence was probative of absence of mistake, common scheme, plan, or motive, and use of force or violence on a domestic partner. The evidence was also admissible under Evidence Code section 352.
Analysis
Standard of Review
"We review for an abuse of discretion a trial court's admission of evidence." (People v. Booker (2011) 51 Cal.4th 141, 170; see also People v. Rogers (2006) 39 Cal.4th 826, 862 [abuse of discretion standard applies to admission of evidence under Evid. Code, § 1101]; People v. Wesson (2006) 138 Cal.App.4th 959, 969 [abuse of discretion standard applies to admission of evidence under Evid. Code, § 1108]; People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 [abuse of discretion standard applies to admission of evidence under Evid. Code, § 1109].) "'Under the abuse of discretion standard, "a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' [Citations.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1286.)
Testimony that Flores-Castro "Analyzed" the Victim's Body
At trial, the victim testified that Flores-Castro returned from the kitchen with a knife, which he held up and pointed at her. The prosecutor questioned the victim regarding what happened next:
"[Prosecutor:] Did he say anything?
"[Victim:] "No. No. He just analyzed my body from top to bottom and in a second he was on me."
"[Prosecutor:] When you say he analyzed, can you tell me what you mean by that?
"[Victim:] That they look at you from top to bottom.
"[Prosecutor:] You could see his eyes doing that?
"[Defense Counsel:] Object as non-responsive.
"The Court: Overruled.
"[Victim:] His eyes were that of hate. He had an ugly gleam to them. Like if the devil was on him.
"[Prosecutor:] When he came out of the kitchen, did he come straight from the kitchen walking straight towards you without stopping and hit you or did he stop?
"[Victim:] No. He comes out of the kitchen, he stops for some seconds, looks at me, and goes directly to my heart."
Flores-Castro contends that the trial court abused its discretion by admitting the victim's testimony that he "analyzed" her body and "looked [her] up and down." He claims that the testimony was speculative and described what the victim believed Flores-Castro was thinking. We disagree.
In People v. Weaver (2012) 53 Cal.4th 1056, at page 1086, our Supreme Court rejected the defendant's challenge to a witness's testimony that he "displayed hatred" toward the murder victim, on the basis that it was improper speculation as to what the defendant was thinking or feeling. The Weaver court held that a percipient witness speaking from personal observation is competent to testify that the defendant's behavior and demeanor are consistent with a particular emotion or objective. (Ibid.; see also People v. Chatman (2006) 38 Cal.4th 344, 397 (Chatman) [trial court properly admitted testimony that defendant "'seemed to be enjoying'" kicking victim].)
The testimony at issue is analogous. Here, the victim saw Flores-Castro pause to look up and down her body. She observed that he looked at her as if he was analyzing her body. She did not testify regarding what she believed Flores-Castro was thinking at the time. She testified to her perception of his movements and demeanor, an area about which she was competent to testify. (Chatman, supra, 38 Cal.4th at p. 397 ["a witness may testify about objective behavior and describe behavior as being consistent with a state of mind"].) The trial court did not abuse its discretion by admitting the testimony.
Restraining Order Testimony
Both the victim and her son testified that the victim attempted to obtain a restraining order a few months prior to the attack, but had been unsuccessful because volunteers from the self-help clinic believed the mistreatment she described did not provide a sufficient basis to obtain a restraining order.
Flores-Castro argues the restraining order evidence was inadmissible because the victim's state of mind was not contested. He further argues that because he was not aware that the victim tried to get a restraining order, the testimony was not relevant to prove his motive or premeditation and deliberation.
Our Supreme Court has held that evidence of a victim's fearful state of mind may be admitted to rebut the defendant's assertions that the victim's death was accidental (People v. Lew (1968) 68 Cal.2d 774, 778-779); the victim provoked the defendant (People v. Spencer (1969) 71 Cal.2d 933, 945-946); the victim voluntarily disappeared (People v. Crew (2003) 31 Cal.4th 822, 840); or when the victim's state of mind is relevant to an element of an offense (People v. Sakarias (2000) 22 Cal.4th 596, 629). (People v. Riccardi (2012) 54 Cal.4th 758, 816, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
In this case, the testimony that the victim attempted to obtain a restraining order was admissible because the victim's state of mind was at issue. The prosecutor's theory was that Flores-Castro "[had a] plan . . . to control her, isolate her, and be[] in authority over her. When she dared to step out of line, he took action." Evidence that Flores-Castro had threatened the victim in the past showed that he was motivated by his need to dominate her. Evidence that she tried to get a restraining order without his knowledge supports the theory he was able to do so successfully without employing physical violence, because the victim's fear prevented her from openly challenging him. (See, e.g., People v. Wang (2020) 46 Cal.App.5th 1055, 1080-1081 (Wang) [state of mind evidence admissible because "[victim's] state of mind was part and parcel" of prosecution's theory that murders "were the culmination of a pattern of domestic violence involving the exercise of dominion and control"].)
Defense counsel argued that Flores-Castro did not possess the mental states required for attempted murder (malice aforethought) or premeditated and deliberate attempted murder (premeditation and deliberation), but instead reacted to the victim's provocation. He posited that the victim provoked Flores-Castro by arguing with him aggressively and demanding a divorce. Defense counsel told the jury in closing: "She started the fight. He was in [sic] the balcony. She went to him, she started it. He was out there drinking his beer. [¶] At some point he tried to get away. He went to the bedroom. There was no lock on that door. She was trying to barge her way in there. This guy was walking around the apartment trying to get the hell away from her, and she kept following him, nagging him, harassing him. That's what happened here. [¶] Pay attention to the instruction here. If you read the first paragraph starting the second sentence, once again, disturbed is the key term to start with underlined there. Disturbed by passion to such an extent as would cause an ordinary reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment. [¶] Provocation, circled there right below, comes from the victim in this case."
To bolster his argument, defense counsel brought the victim's credibility into question, suggesting that she was not afraid to challenge Flores-Castro: "What question rose through my mind when I was asking [the victim] questions was if you have a man, your husband, you've lived with for almost half a decade, who is calling you names, slut, whore, this is before my client fell asleep, berating her with the onslaught of attack, do we really think that she was there like little Ms. Bo Peep, quiet as a sheep, not saying anything back? You don't think she was responding to his attacks?"
The victim's action of seeking a restraining order without Flores-Castro's knowledge was evidence of her fear of him and her reluctance to confront him directly. Her attempt to secure a restraining order was consistent with her testimony that Flores-Castro was the aggressor. The victim's son's testimony corroborated her testimony and supported her credibility.
The trial court did not abuse its discretion in admitting the restraining order testimony, which was relevant to the victim's state of mind, Flores-Castro's motive, provocation, and the victim's credibility.
Testimony Regarding the Beach Incident
The victim also testified briefly regarding an incident that occurred at the beach: "We were at the beach. I had never been. And he, as if playing, he was trying to make me fall down by grabbing onto my feet and drag [sic] me under water. But I was scared because of that. And then he would take me in deeper. And I felt that the water was up to here (indicating [clavicle area]) on me. And since he was grabbing me by the feet, I was trying to get away from him. But he was always just behind me." The victim did not know how to swim and was afraid "[b]ecause he as if trying to knock me down, and I thought he's gonna drown me here." "I thought he was trying to knock me down and drown me. He knew I didn't know how to swim." The victim described Flores-Castro's face as "serious" throughout the incident.
We reject Flores-Castro's objection to the victim's testimony with respect to this incident as well. The victim did not testify regarding what Flores-Castro was thinking. She testified to her own fearful mental state based on Flores-Castro's actions, demeanor, and the circumstances surrounding the incident. As we have discussed, the victim's state of mind was disputed, and was relevant to key issues to be decided by the jury at trial. (See, e.g., Wang, supra, 46 Cal.App.5th at pp. 1080-1081 [victim's testimony that she believed defendant was going to get a gun relevant to the prosecution's theory of guilt and was a reasonable inference given victim's knowledge of circumstances].) The trial court did not abuse its discretion by admitting this evidence.
Sufficiency of the Evidence of Premeditated and Deliberate Attempted Murder
Defendant next contends that the evidence was insufficient for the jury to find that he acted with premeditation and deliberation. The contention has no merit.
When reviewing for sufficiency of the evidence, we consider "'"'[t]he whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"' [Citation.]" (People v. Casares (2016) 62 Cal.4th 808, 823 (Casares) disapproved of on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214; People v. Clark (2011) 52 Cal.4th 856, 942-943; see Jackson v. Virginia (1979) 443 U.S. 307, 321 [federal due process requires proof "sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt"].) "'The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.' (People v. Bean (1988) 46 Cal.3d 919, 932.) '. . . [I]t is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' (People v. Yeoman (2003) 31 Cal.4th 93, 128.)" (Casares, supra, at p. 823.)
In Anderson, our Supreme Court offered guidelines for assessing the sufficiency of the evidence to support premeditation and deliberation. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) Under Anderson, a jury's finding of premeditation and deliberation may be supported by evidence of: (1) the defendant's planning activity prior to the homicide; (2) his motive to kill, as gleaned from his prior relationship or conduct with the victim; and (3) the manner of the killing, from which it might be inferred the defendant had a preconceived design to kill. (Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Wharton (1991) 53 Cal.3d 522, 546.) However, "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse." (People v. Pride (1992) 3 Cal.4th 195, 247; see also People v. Thomas (1992) 2 Cal.4th 489, 516-517 ["Unreflective reliance on Anderson for a definition of premeditation is inappropriate"].)
In assessing the sufficiency of the evidence as to the element of premeditation and deliberation, "'[t]he true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes . . . those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed.' [Citations.]" (People v. Velasquez (1980) 26 Cal.3d 425, 435, vacated and remanded on other grounds in California v. Velasquez (1980) 448 U.S. 903.) A killing is deliberate and premeditated only if the killer acted "'"as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on cooly and steadily, [especially] according to a preconceived design." [Citation.]' [Citation.]" (Anderson, supra, 70 Cal.2d at p. 26.)
In this case, the victim testified that, less than a week before the attempted murder, Flores-Castro threatened that he was capable of killing her if she disobeyed him. Flores-Castro forbade the victim from attending a family gathering and threatened to kill her if she disobeyed, saying "[Y]ou'd better pay attention to me. Because should you leave without my permission . . . I'm capable of killing you." "You don't know who I am. If you do not do as I say, I'm capable of killing you. [I]t's best not to tempt me."
This testimony suggests that Flores-Castro had decided on a course of action. If the victim refused to comply, he would kill her rather than allow her to defy him. Such contemplation in advance of the crime is "'[t]he very definition of "premeditation"' . . . . [Citation.]" (People v. Boatman (2013) 221 Cal.App.4th 1253, 1264 ["'The very definition of "premeditation" encompasses the idea that a defendant thought about or considered the act beforehand.'"].)
Flores-Castro's threat to kill the victim and his prior actions—evidenced by the other incidents in which he isolated his wife from her family and threatened her if she failed to comply—tend to show Flores-Castro's motivation. Flores-Castro's actions escalated in severity over time, moving from vague threats to death threats, and finally culminating in a physical attack. This pattern of behavior suggests that Flores-Castro had a desire to control the victim, and that when he felt his authority over her was threatened he decided to take action.
Flores-Castro's actions during the attack also evidence premeditation. When Flores-Castro first entered the kitchen that morning, the victim was preparing green beans and had a small knife plainly visible on the counter nearby. When Flores-Castro returned to the kitchen to get a knife, he did not simply grab the small knife that was sitting on the counter. The victim testified that she heard Flores-Castro rummaging through utensils, from which it can be reasonably inferred that he was searching for a knife in the utensil drawer. He ultimately chose a very large knife from a wooden block for his attack on the victim. The fact that he searched for a larger, more lethal weapon, rather than picking up the smaller knife that was in plain sight, demonstrates both that he had time for reflection and that, after deliberation, he decided to use the weapon that was more likely to kill the victim.
Flores-Castro had sufficient time to reflect prior to attacking his wife. He had to cross the apartment and go into the kitchen to obtain a weapon. Once there, he did not just blindly pick up the first object that could inflict injury, but instead sought out a knife large enough to inflict great bodily injury. He did not rush out of the kitchen and immediately attack. He stopped and looked his wife up and down before stabbing her near the heart. At any point in that sequence, Flores-Castro could have changed course. From the fact that he nevertheless attacked and severely injured the victim, the jury could reasonably find that during those moments in which there was sufficient time for thought, he consciously determined to kill her.
Citing to People v. Massie (2006) 142 Cal.App.4th 365, at page 372 (Massie), Flores-Castro argues that his extreme anger precluded a finding of premeditation and deliberation. But Massie did not so hold. To the contrary, the Massie court held that "[t]he role that anger may have played in a criminal attack is a matter for the jury to determine." (People v. Massie (2006) 142 Cal.App.4th 365, 372.) The court reasoned that anger can in some instances create intent, whereas in other instances the defendant's rage may be so mindless as to preclude its formation. (Ibid.) Here, the jury determined that Flores-Castro acted with premeditation and deliberation. To the extent that it relied on evidence of his anger to reach that conclusion, it was entitled to do so, and we decline to second-guess its findings.
Similarly, we will not reweigh the evidence to independently determine whether Flores-Castro's various threats were "empty," or if his alcohol consumption rendered him incapable of premeditation and deliberation, or evaluate any of the myriad other pieces of evidence that Flores-Castro would have us reconsider. The jury considered all of the evidence and found that the attempted murder was premeditated and deliberate. Viewing the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the jury's finding that Flores-Castro acted with premeditation and deliberation beyond a reasonable doubt. Counsel's Failure to Request CALJIC No. 8.73
Flores-Castro contends that trial counsel provided ineffective assistance by failing to request that the court include CALJIC No. 8.73—regarding the effect of provocation in determining the degree of murder—among its instructions. This contention also lacks merit.
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) A defendant is prejudiced by counsel's representation if there is a reasonable probability that the outcome would have been more favorable to the defendant but for counsel's failings. (Strickland v. Washington (1984) 466 U.S. 668, 694.) On direct appeal, reviewing courts "'will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 980.) "[T]he reviewing court defers to '"'counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance."' [Citation.]"' [Citation.] . . . [T]o the extent the record is silent as to defense counsel's reasons for his actions or inaction, a claim of ineffective assistance must be rejected. We may reverse on grounds of ineffective assistance of counsel only if the record affirmatively discloses no rational purpose for counsel's act or omission. [Citation.] Where the record contains no explanation for the challenged representation, we will reject an ineffective assistance claim unless counsel was asked to explain his performance and failed to provide an explanation, or unless there simply could be no satisfactory explanation. [Citation.]" (People v. King (2010) 183 Cal.App.4th 1281, 1299.)
Here, Flores-Castro argues that trial counsel was ineffective in not requesting that the jury be instructed with CALJIC No. 8.73, which provides: "If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation." It is a pinpoint instruction, which the trial court is not obligated to give absent a request. (People v. Rogers (2006) 39 Cal.4th 826, 880.)
Flores-Castro contends that failure to request this instruction prevented the jury from understanding how the evidence of provocation could affect the degree of murder. Specifically, he argues that although the test of whether provocation is sufficient to reduce attempted murder to attempted voluntary manslaughter is objective reasonableness, the test for whether provocation is sufficient to reduce attempted premeditated murder to attempted murder is subjective. He claims that if the jury had been properly instructed that subjective provocation can negate premeditation, there is a reasonable probability that he would have been convicted of second degree murder, not first degree murder.
We agree with Flores-Castro's view that a defendant's subjective belief that he was provoked can negate the premeditation and deliberation required for first degree murder, and reduce it to second degree murder; but in order for evidence of provocation to negate the malice required for first and second degree murder, thereby reducing the attempted killing to manslaughter, the defendant's reaction to the provocation must be objectively reasonable. (People v. Robbins (2018) 19 Cal.App.5th 660, 674; People v. Padilla (2002) 103 Cal.App.4th 675, 678.) --------
Here, the record contains no explanation for counsel's inaction, and, as Flores-Castro concedes, "[d]efense counsel may have believed CALJIC No. 8.73 would deflect from his argument that the provocation and resulting 'heat of passion' Flores-Castro experienced was that of a reasonable person in such a situation and thus warrant the less serious finding of attempted voluntary manslaughter." This is reason enough to reject Flores-Castro's contention—we will not conclude counsel's representation was deficient when a rational tactical purpose for his or her decision exists. Counsel here could reasonably have concluded that making the alternative argument—that Flores-Castro acted rashly because of a genuine, subjective reaction to the victim's provocation, even though that provocation would not have aroused the passions of an ordinary and reasonable person—would have undermined the likelihood of persuading the jury that this was manslaughter, not murder.
Moreover, Flores-Castro did not suffer prejudice. To the extent that he is arguing that CALJIC No. 8.73 would have apprised the jury that the provocation required to negate premeditation and deliberation is subjective, he is incorrect. The instruction does not address subjective versus objective provocation. It instructs that if the jury finds provocation is not sufficient to negate attempted murder, the jury may still consider whether it negates attempted premeditated and deliberate murder. Instructing the jury with CALJIC No. 8.73 would not cure the specific prejudice of which Flores-Castro now complains.
Finally, the jury was instructed regarding premeditation and deliberation under CALJIC No. 8.67 as follows: "If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, 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 is attempt to commit willful, deliberate, and premeditated murder." Its finding that the attempted murder was willful, deliberate, and premeditated is inconsistent with a finding that he was acting out of passion in response to his wife's provocation. (See People v. Speight (2014) 227 Cal.App.4th 1229, 1246 [jury finding that attempted murder was premeditated and deliberate "is manifestly inconsistent with having acted under the heat of passion"].) There is no reasonable probability that the result would have been more favorable to Flores-Castro if it had been instructed under CALJIC No. 8.73.
Cumulative Error
Flores-Castro contends that the cumulative errors at trial deprived him of due process. As we have concluded that the trial court did not err, the contention necessarily fails. (See People v. Hines (1997) 15 Cal.4th 997, 1062.)
Custody Credit
We agree with the parties that the abstract of judgment must be corrected to accurately reflect that Flores- Castro is entitled to 594 days of actual presentence custody credit. Actual custody credit includes credit for the day of the defendant's arrest through the day of sentencing. (See People v. Magallanes (2009) 173 Cal.App.4th 529, 537.) Flores-Castro was arrested on June 30, 2017, and sentenced on February 13, 2019. He was therefore entitled to 594 days of presentence custody credit rather than the 593 days of credit that the trial court awarded him.
DISPOSITION
We order the abstract of judgment corrected to reflect that Flores-Castro is entitled to 594 days of custody credit. The trial court is directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.