Opinion
No. F055311 No. F057252
8-19-2009
THE PEOPLE, Plaintiff and Respondent, v. SAUL HERRERA FLORES, Defendant and Appellant. In re SAUL HERRERA FLORES, On Habeas Corpus.
Candace Hale, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Defendant Saul Herrera Flores stabbed Jose Santoyo with a machete after they got into an argument regarding the parking location of Santoyos truck. Santoyo died, and defendant was convicted of first degree murder with the use of a deadly weapon. (Defendant was also convicted of being a felon in possession of a firearm and resisting an officer, but these convictions are not at issue here.) We have consolidated his direct appeal with his petition for writ of habeas corpus. In his direct appeal, he claims the jury was not properly instructed regarding provocation and its application to second degree murder and the court did not adequately reply to the jurys question about the meaning of "deliberately" as it applied to first degree murder. In addition, he asserts in his direct appeal and in his petition for writ of habeas corpus that his counsel was ineffective concerning these issues. We will grant defendants petition and vacate the judgment, subject to further proceedings on remand as we will direct in our disposition.
TRIAL FACTS
Defendants grandmother and Luis Gonzalez were next-door neighbors. In the afternoon of July 15, 2006, Santoyo came to visit Luis Gonzalez at his home. Santoyo parked his truck so that it was partially blocking the grandmothers driveway. Defendant was at his grandmothers house that day, repairing her fence and drinking beer.
Gonzalez testified reluctantly at trial. At trial, Gonzalez testified that he was cleaning his van that was parked in his driveway. Santoyo was there with a woman. Santoyo moved his truck after defendant asked him to do so. Defendant and Santoyo were arguing. Gonzalez observed defendant to possess a machete after Santoyo moved his truck. Gonzalez saw defendant tap Santoyos head with his hand and then saw defendant swing at Santoyo with the machete. Santoyo said he was sorry and defendant replied, "This is my barrio."
Santoyo had a wound next to his navel and asked Gonzalez to drive him to the hospital. As Gonzalez was driving, Santoyos condition deteriorated, so Gonzalez pulled into a fire station. Paramedics assisted Santoyo and transported him to the hospital. While checking Santoyo, a paramedic found a two-inch, fixed-blade knife in Santoyos boot. The paramedic removed the knife and later turned it over to the police department.
Santoyo bled to death during emergency surgery at the hospital. The pathologist testified that there appeared to be only one stab wound, although he could not be certain because there was a surgical incision. There was no other trauma to the body. It appeared that although there was only one stab wound, the cutting instrument had been thrust from one entry site in three separate directions in Santoyos body, causing extensive internal damage. Santoyos blood alcohol level at the time of his death was .32.
Silia Diaz claimed she was not with Santoyo when he was stabbed. Jeannie Padilla impeached this statement, testifying that Diaz said she was present at the time of the stabbing. Diaz informed Padilla the stabbing stemmed from a dispute regarding where Santoyo parked his truck. Diaz told Padilla that defendant came out and started hitting Santoyo and then stabbed him. Diaz noted that she (Diaz) moved Santoyos truck.
Dinuba police detective Cesar Moreno interviewed Gonzalez and Padilla after the stabbing. Gonzalez told him that, after defendant asked Santoyo to move his truck, Gonzalez saw defendant walk up the driveway with a machete in his hand. The first contact between defendant and Santoyo, as described by Gonzalez to Detective Moreno, was simply defendant asking Santoyo to move his truck. Padilla told Detective Moreno that Diaz said that defendant asked Santoyo to move his truck. Santoyo cursed at defendant, then defendant hit and stabbed Santoyo.
Defendant was apprehended more than a year after the stabbing. At that time, he ran from police; while he was running, he dropped a gun in a field.
Defense
Defendant testified on his own behalf. He was at his grandmothers house drinking beer and repairing a fence. His car was parked in his grandmothers driveway. When he was preparing to leave, he noticed a black truck parked on the street that was blocking the driveway. He saw Santoyo and another man standing nearby. Defendant asked Santoyo to move his truck. While Santoyo moved the truck, defendant stood and talked to the man who was standing there.
Santoyo returned from moving his truck and said something to defendant about the parking space. Defendant told Santoyo that the parking space was his grandmothers space. Santoyo came at defendant acting crazy; he was aggressive and cursing at defendant. Santoyo said to defendant in Spanish, "Fuck your mother." Defendant told Santoyo the space belonged to his grandmother, not to him. To this comment Santoyo replied, "Fuck your grandmother."
Defendant was angry, and the two men exchanged words and a couple of punches. They separated and defendant got in his car and left. Defendant did not intend to kill Santoyo. Defendant had a machete in his hand but did not recall where he obtained it and did not recall stabbing Santoyo.
DISCUSSION
I. Adequacy of the Instructions
"The test of whether provocation or heat of passion can negate malice so as to mitigate murder to voluntary manslaughter is objective.... The test of whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder, on the other hand, is subjective." (People v. Padilla (2002) 103 Cal.App.4th 675, 678.)
Although the jury was instructed on first degree murder, second degree murder, and voluntary manslaughter, defendant, in his direct appeal, contends the instructions did not convey the concept that heat of passion or provocation can reduce a homicide from first to second degree murder based on a subjective test. The only instruction discussing heat of passion did so in the exclusive context of the objective standard. Defendant argues the manslaughter instruction created the misimpression the jury could not consider heat of passion to reduce the offense of murder from first degree to second degree because provocation and heat of passion must be judged under the objective reasonable person test. The trial court was obligated, claims defendant, to instruct the jury on these general principles. Alternatively, defendant argues, in both his appeal and in his petition for writ of habeas corpus, that if we find the instructions were correct, his counsel was ineffective in failing to request a pinpoint instruction that subjective heat of passion/provocation can reduce murder from first to second degree.
The jury was instructed pursuant to CALCRIM No. 521 regarding the difference between first degree murder and second degree murder. "If you decide that the defendant has committed murder, you must decide whether it is murder of first or second degree. The defendant is guilty of first degree murder if the People have proved that he willfully, deliberately, deliberately — that he acted willfully, deliberately, and in premeditation. The defendant acted willfully if he intended to kill.
"The defendant acted deliberately if he carefully weighed the considerations for and against his choice and knowing the consequences decided to kill.
"The defendant acted with premeditation if he decided to kill before committing the act that caused death. The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.
"The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold calculated decision to kill can be reached quickly. The test is the extent of the reflection. The length of time alone is not determinative.
"All other murders are of the second degree."
Voluntary manslaughter was one of the options given to the jury regarding the homicide. The jurors were told, "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." CALCRIM No. 570, which sets forth the requirements to reduce a murder to voluntary manslaughter based on heat of passion or sudden quarrel, was read to the jury. "The defendant killed someone because of a sudden quarrel or in the heat of passion if the defendant was provoked. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment, and the provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation that is from passion rather than from judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
"In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. Its not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct.
"You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts."
In People v. Valentine (1946) 28 Cal.2d 121, the Supreme Court found error in the instructions. One error was that the jury was "not advised that the existence of provocation which is not `adequate to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation. If they were not impliedly precluded from considering at all the matter of provocation in determining the degree of murder they were at best left to infer its materiality from instructions that to constitute murder of the first degree the intent to kill `must be formed upon a pre-existing reflection and not upon a sudden heat of passion sufficient to preclude the idea of deliberation and that malice `is implied when no considerable provocation appears." (Id. at p. 132.)
The Valentine opinion led to the drafting of an instruction on the subject of provocation to reduce a first degree murder to second degree murder; this instruction is CALCRIM No. 522. It provides: "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.] [¶] ..."
The prior version of this instruction was CALJIC No. 8.73. It provided, "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."
In People v. Rogers (2006) 39 Cal.4th 826, the Supreme Court held that CALJIC No. 8.73 (the CALJIC version of CALCRIM No. 522) is a pinpoint instruction that need not be given on the courts own motion. Although acknowledging that CALJIC No. 8.73 arose from the Valentine case, the court stated that the reversal in that case was based on a "host of instructional errors." (Rogers at p. 879.)
"Valentine does not stand for the general proposition that the standard heat-of-passion voluntary manslaughter instructions are always misleading in a homicide case where the jury is instructed on premeditated murder and there is evidence of provocation, or that such manslaughter instructions always must be accompanied by instructions on the principle of inadequate provocation set out in CALJIC No. 8.73. In the absence of instructional errors such as were present in Valentine, the standard manslaughter instruction is not misleading, because the jury is told that premeditation and deliberation is the factor distinguishing first and second degree murder. Further, the manslaughter instruction does not preclude the defense from arguing that provocation played a role in preventing the defendant from premeditating and deliberating; nor does it preclude the jury from giving weight to any evidence of provocation in determining whether premeditation existed. For the foregoing reasons, we hold that CALJIC No. 8.73 is a pinpoint instruction that need not be given on the courts own motion." (People v. Rogers, supra, 39 Cal.4th at p. 880.)
Defendant contends that Rogers does not apply here because the Rogers jury was instructed with CALJIC No. 8.20, the former equivalent of current CALCRIM No. 521. The pertinent portion of CALJIC No. 8.20 reads, "If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant 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 murder of the first degree."
Defendant claims that, unlike the instructions in Rogers, the jury here never heard the basic principle that it should consider whether subjectively experienced heat of passion rendered defendant unable to deliberate, so that he could be guilty of second degree murder. As previously set forth, the jury was instructed pursuant to CALCRIM No. 521. Although this instruction does not contain the phrase "heat of passion," it states that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
Although CALCRIM No. 521 and CALJIC No. 8.20 are worded differently, they both generally convey the necessary concept as discussed in Rogers. CALCRIM No. 521 informed the jury that premeditation and deliberation are the factors distinguishing first and second degree murder. The manslaughter instruction did "not preclude the defense from arguing that provocation played a role in preventing the defendant from premeditating and deliberating." The instruction did not "preclude the jury from giving weight to any evidence of provocation in determining whether premeditation existed." (People v. Rogers, supra, 39 Cal.4th at p. 880.) In addition, the court in Rogers held that absent other instructional errors the standard instructions given for heat-of-passion voluntary manslaughter are not misleading and need not be accompanied by an instruction on the principle of inadequate provocation. (Ibid.) While heat of passion is expressly mentioned in CALJIC No. 8.20 but not in CALCRIM No. 521, the statement in CALCRIM No. 521—that a decision made rashly, impulsively, or without careful consideration is not deliberate and premeditated—inferentially informs the jury that provocation may preclude a defendant from acting with deliberation and premeditation.
"[P]rovocation is relevant only to the extent it `bears on the question whether defendant premeditated and deliberated. [Citation.] Because [the provocation instruction] relates the evidence of provocation to the specific legal issue of premeditation and deliberation, it is a `pinpoint instruction as that term was defined in People v. Saille [(1991) 54 Cal.3d 1103, 1119-1120], and need not be given on the courts own motion." (People v. Rogers, supra, 39 Cal.4th at pp. 878-879.)
The provocation instruction is a pinpoint instruction; as such the trial court was not obligated to give the instruction on its own motion.
II. Adequacy of the Trial Courts Response to a Question From the Jury
During deliberations, the jury sent out the following question: "To meet the conditions of murder 1, the law states defendant acts `deliberately. That is he carefully weighs the considerations for and against his choice. We are unsure what it means to carefully weigh the considerations for and against his choice. Can you clarify?"
The court informed counsel for both sides that the jury had sent out this question. The court stated that the only thing it could do was read the instructions to the jurors and tell them to apply their common sense. Neither counsel said anything about the courts proposed course of action.
The court responded to the jury as follows: "The only thing I am allowed to do in that regard is go over the instruction with you and just advise you to just use your common sense and remember that unless specifically indicated otherwise, the words mean exactly what they say unless there is a special legal definition for you.
"Now, deliberately — and you have to take this all together now — deliberately, if you carefully weighed the considerations for and against his choice, knowing the consequences, decided to kill, then you have to jump down to the next paragraph and it says, `The length of time a person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditat[ed]. How long it takes doesnt mean that theres — a person has to spend a long period of time deliberating and considering. And the amount of time required for deliberation and premeditation may vary from person to person according to the circumstances.
"Now, the decision to kill may be made rashly, impulsively, or without careful consideration. And that kind of killing is not deliberate and not premeditated. In other words, if its rash, impulsive, or without that careful consideration, its not a deliberate premeditated murder. There may be an intent to kill, but theres not that length of time thats required to make it deliberate and premeditated. And you have to figure that out. You have to figure out whether given the evidence in this case there was sufficient time or that deliberation and premeditation occurred. I cant tell you that. Thats something that you need to decide. Thats what the jurors are for to decide was there enough time for the defendant to premeditate and deliberate this killing. And then you take a look at all the circumstances and make that decision. So — and, again, it can be the amount of time it took does not — is not what alone creates that deliberation, premeditation. It can be quick. It can be lengthy. But you have to take all the circumstances together."
In his direct appeal, defendant asserts the trial court failed to clarify adequately the jurys confusion on a critical point of law to his prejudice. It is argued that the court could have read the provocation instructions to the jury under either CALJIC or CALCRIM, or could have read the former CALJIC instruction that contains language referring to heat of passion, CALJIC No. 8.20. While acknowledging that the failure to object to a courts response to a jurys request results in a forfeiture of the issue on appeal, he claims the issue is cognizable on appeal because his counsels failure amounted to ineffective assistance of counsel.
Defense counsels acquiescence in the trial courts response to the jurys question forfeits the claim of error on appeal. (People v. Rogers, supra, 39 Cal.4th at p. 877.) Defense counsel did not say anything when the court announced its proposed course of action in response to the jurys question, nor did counsel say anything after the court re-read the instructions to the jury. This appellate claim is forfeited.
III. Ineffective Assistance of Counsel
In his direct appeal, defendant claims he was deprived of the effective assistance of counsel based upon counsels failure to perform adequately concerning the instructions and responses to the jury previously discussed: failing to request a pinpoint instruction on subjective provocation and failing to object to the trial courts answer to the jurys question asking for clarification of the term "deliberately" as that term is used in the instruction for first degree murder. All of defendants claims are centered on the theory the evidence supported a conviction of second degree murder based on the fact he was provoked and thus did not form the specific intent to murder Santoyo deliberately and with premeditation. Defendant contends the fallback position of second degree murder based on provocation should have been presented to the jury, at least by way of instruction, in addition to defendants argument that he was guilty of only voluntary manslaughter.
"The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorneys performance fell below an objective standard of reasonableness; and (2) there is a reasonably probability that, but for counsels unprofessional errors, the result of the proceeding would have been more favorable to the defendant." (People v. Stanley (2006) 39 Cal.4th 913, 954.)
"`Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citation.] `[W]e accord great deference to counsels tactical decisions [citation], and we have explained that `courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [citation]. `Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
Defense counsel argued that defendant was guilty of only voluntary manslaughter based on his actions resulting in the death of Santoyo. He did not argue that the evidence would also support a second degree murder conviction.
Defendant asserts in his direct appeal that defense counsel should have argued a second degree murder theory as at least a fallback argument to voluntary manslaughter and that counsel should have requested appropriate instructions in this area, as well as further instructions when the jury asked the question regarding the meaning of the term "deliberately." In claiming that a theory of second degree murder should have been pursued by defense counsel, defendant characterizes the choice of manslaughter as not convincingly supported by the evidence, not fully supported by the law and the evidence, and based on facts that did not necessarily demonstrate sufficient provocation.
On the record before us in the direct appeal, we conclude that defense counsel could have made a tactical decision to try to force the jury to choose between first degree murder and voluntary manslaughter. "If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
PETITION FOR WRIT OF HABEAS CORPUS
This leads us to a discussion of the merits of these same arguments in defendants petition for writ of habeas corpus. While the record on appeal does not shed light on why counsel failed to act in the challenged manner, the petition for writ of habeas corpus contains a declaration from trial counsel stating his reason for not requesting instructions on provocation as it relates to second degree murder.
Defense counsel states under penalty of perjury, "I did not request instructions on the principle that subjectively experienced, `unreasonable heat of passion can reduce an offense from first to second degree murder, or argue that theory to the jury, because I did not see any such instruction in my review of CALCRIM."
In addition to the declaration of trial counsel, counsel on appeal has filed declarations from defendant and defendants wife. In these declarations they state that defense counsel informed defendant that this was a "cut and dried" case of manslaughter and never suggested that a second degree murder verdict was an option. Defendant did not request defense counsel to limit his argument to strictly manslaughter. The People object to these declarations as hearsay. Because the claims of defendant can be reached without resort to these declarations, we need not determine their admissibility.
This explanation by defense counsel negates any tactical reason for not requesting the instruction and demonstrates that defense counsel failed to find the instruction and strongly implies that defense counsel was not even aware of this defense to the first degree murder charge. As such, the decision of defense counsel to not request the instruction cannot be characterized as a tactical decision.
The People argue that an instruction on subjective heat of passion does not even exist; thus counsel would not have found it by looking through the CALCRIM instructions. The People question whether the defense of unreasonable heat of passion for second degree murder is even recognized by California law.
The Peoples arguments clearly fail. As previously set forth, the voluntary manslaughter heat-of-passion instruction repeatedly uses the term "provocation," and provocation is the main focus of the instruction. The terms are interchangeable. Thus, any reasonably competent attorney would recognize that provocation is the critical element of heat of passion. As catalogued in the published CALCRIM instructions, CALCRIM No. 522, the provocation instruction, directly follows CALCRIM No. 521, the instruction on the degrees of murder. CALCRIM No. 522 is titled "Provocation: Effect on Degree of Murder." In addition, provocation/subjective heat of passion is a well-established theory to reduce a first degree murder to second degree murder, dating back to the Valentine case (People v. Valentine, supra, 28 Cal.2d 121) and continuing to gain attention in published case law throughout the years. Defense counsels explanation that he simply did not see any instruction on subjective heat of passion is not a satisfactory justification for not requesting the instruction. Counsels inaction fell below the normal range of competency.
Trial counsel filed a subsequent declaration in support of the return to the order to show cause. In this declaration counsel states that defendant told him on several occasions that he was not interested in a second degree murder outcome in this matter and wanted counsel to obtain a voluntary manslaughter verdict if possible. Also, the People offered to let the case be settled pretrial if defendant would enter a plea to one count of second degree murder. Defendant rejected this offer and insisted on a jury trial, stating he had nothing to lose by going to trial and everything to gain. Counsel avers that at no time during the jury trial did defendant ever indicate that he was interested in a second degree murder resolution of this matter.
From this declaration the People argue that defendant/petitioner is estopped from claiming ineffective assistance of counsel because his counsel acceded to defendants wish to obtain a voluntary manslaughter outcome. The People contend that defendant gambled on a voluntary manslaughter verdict and lost.
While it has been held that a defendant is estopped from claiming ineffective assistance of counsel when counsel acts in conformance with the defendants own requests (People v. Snow (2003) 30 Cal.4th 43, 120), the cases where invited error is applied to the question of ineffective assistance of counsel contain the additional showing that the defendant sought to pursue a certain strategy against his counsels advice.
In People v. Simmons (1946) 28 Cal.2d 699, invited error was applied to a claim of ineffective assistance of counsel when defense counsel asked certain questions of witnesses based on defendants insistence and against counsels own better judgment and contrary to counsels advice. (Id. at p 708.)
In People v. Lang (1989) 49 Cal.3d 991, defense counsel stated that he had planned to call the defendants grandmother as a witness at the penalty phase but the defendant did not want to put his grandmother through that kind of experience so, at the defendants request, the grandmother was not called as a defense witness. Thus, defense counsel considered the available options and acquiesced in not calling the grandmother only at the defendants insistence. (Id. at pp. 1029-1033.) The Supreme Court noted in particular that the defendant had not shown that his counsel failed to adequately investigate or advise him regarding the significance of the decision to proceed according to defendants wishes. (Id. at pp. 1032-1033)
The defendant in People v. Snow (2003) 30 Cal.4th 43 decided to forgo the presentation of mitigating evidence at the penalty phase of his trial after consulting with his counsel and having been informed of his right to present mitigating evidence. Trial counsel acceded to the defendants request. This case was a direct appeal, and the court accepted that counsel had reasons for not presenting any mitigating evidence at the penalty phase, leaving open that an expanded factual record on habeas corpus might present a different result. (Id. at pp. 112-123.)
People v. Majors (1998) 18 Cal.4th 385 is most closely on point in illustrating how invited error may be applied to the question of ineffective assistance of counsel in not requesting a certain instruction that was not required to be given sua sponte. In Majors, "trial counsels decision to forgo the instruction was not a result of oversight but rather deference to defendants own wishes." Trial counsel stated on the record that he had discussed the instruction with his client and recommended to him that the instruction be given. The defendant did not want the instruction and counsel deferred to his judgment. (Id. at p. 409.)
As stated in People v. Frierson (1985) 39 Cal.3d 803, "when a defendant insists on a course of action despite his counsels contrary warning and advice, he may not later complain that his counsel provided ineffective assistance by complying with his wishes." (Id. at p. 817, italics added.)
Although trial counsel here states in his declaration that defendant was not interested in a second degree murder outcome in the matter, his declaration leaves more questions unanswered then it does answered. Counsel does not claim he informed defendant regarding provocation and its application to second degree murder, or that he advised defendant there was an instruction that clearly spelled out how subjective provocation could reduce a first degree murder to second degree murder, or that his failure to request the instruction was based on his acquiescence to defendants interest in not pursuing a second degree murder conviction. In fact, it is clear defense counsel did not advise defendant regarding subjective provocation and second degree murder because in his earlier declaration defense counsel stated he did not request the instruction because he was not aware of it. Thus, defendants interest in not pursuing a second degree murder conviction is not even claimed to be a decision by defendant, only a noninterest, and there is nothing to demonstrate that defendants noninterest in pursuing a second degree murder conviction based on subjective provocation was made after being properly advised by defense counsel. The doctrine of invited error does not apply when the decision to proceed in a certain manner is based on counsels oversight.
We turn then to the question of prejudice. "`"Prejudice is shown when there is a `reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citations.]" (In re Thomas (2006) 37 Cal.4th 1249, 1256.)
Defendant testified that he was provoked when Santoyo cursed at him and made very derogatory remarks about his mother and grandmother after defendant had simply asked Santoyo to move his truck. Provocation was the key element of this case. The likelihood that a jury might have found defendant guilty of voluntary manslaughter was not strong, as the evidence supporting a theory of objective reasonableness was weak.
The jurys question regarding the meaning of the term "deliberately" as set forth in the first degree murder instructions is a question directly related to defendants state of mind. Whether he acted deliberately could be influenced by provocation judged under a subjective standard. Although the court in People v. Rogers, supra, 39 Cal.4th at page 880 stated that absent other instructional errors the standard manslaughter instructions are not misleading, we find the arguments of the prosecutor and defense counsel to the jury, when combined with the manslaughter instructions, might have led the jury to believe that provocation may only be used to reduce the crime from first degree murder when it meets the objective reasonable person standard.
The prosecutor focused her argument on voluntary manslaughter and the objective standard. She argued that defendant was not allowed to set up his own standard of conduct and the question is whether an ordinary person would have been provoked to act in that way. She stated that the jury must determine whether the victim caused such a disturbance that an ordinary person is going to grab a machete and stab the victim. The prosecutor urged the jury to return a verdict of first degree murder. While these concepts are absolutely true as they relate to voluntary manslaughter, the objective standard is not the standard applicable to reduce a first degree murder to a second degree murder.
In response to the Peoples argument, defense counsel argued that defendant was guilty of only voluntary manslaughter. He stated the jury must consider the following: "Was he acting rashly or not? Was he calmly considering his conduct? Would a reasonable person respond—I would suggest to you that this third requirement here, reasonable person, would be more or less would a reasonable person get angry when they hear things like this?" Defense counsel argued that if the jury found that defendant acted rashly it would find defendant not guilty of "the murders."
In response, the People argued there was no doubt that defendant was provoked and there was no doubt that he acted rashly that day but that defendant does not get to set the standard—it is an ordinary person standard. The prosecutor stated to the jury that, whatever happened on that day, the question was whether an ordinary person would respond in the same manner. The prosecutor asked the jury to find defendant guilty as charged.
The instructions as given and the arguments of counsel focused on provocation only under the objective reasonable person standard. There was absolutely nothing focusing the jurys attention on provocation under a subjective standard to reduce the murder from first degree murder to second degree murder, yet the evidence strongly suggested that provocation played a role in preventing defendant from premeditating and deliberating.
At the hearing on the motion for new trial, the court was asked to determine if there was sufficient evidence of first degree murder. While finding the evidence was sufficient to support the verdict the trial court stated, "I will admit that I was somewhat surprised with the verdict. That doesnt mean that the verdict wasnt supported by the evidence." In addition, as previously set forth, the prosecutor stated that defendant was provoked and acted "rashly" in her closing argument to the jury. If defendants decision to kill was made "rashly," it is not deliberate and premeditated.
The jury was never specifically told in argument or in the instructions that it could use provocation under a subjective standard to find second degree murder rather than first degree murder, yet this was the most viable theory of the case. Our above discussion illustrates that a more favorable result was reasonably probable if the jury had been given pinpoint instructions on this theory, and trial counsels declaration demonstrates he did not have a tactical reason for not requesting the pinpoint instruction.
DISPOSITION
The petition for writ of habeas corpus is granted; the conviction of first degree murder is vacated. The matter is remanded to the trial court with directions that the People may file a written election to try defendant on a charge of first degree murder within 60 days after the filing of the remittitur in the trial court and proceed to trial in accordance with Penal Code section 1382, subdivision (a)(2). If the prosecutor does not file the proper election in the specified time period, the trial court shall enter a judgment of conviction of second degree murder and sentence defendant accordingly. (See People v. Padilla, supra, 103 Cal.App.4th at p. 680.) In all other respects, the judgment is affirmed.
WE CONCUR:
ARDAIZ, P. J.
CORNELL, J.