Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. GA067272 Jacqueline H. Nguyen, Judge.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Gerardo Olmos of the second degree murder of Sandra Casas, the mother of his children. At trial, defendant did not deny that he killed her. He argued he was guilty of, at most, voluntary manslaughter. On appeal, he contends: (1) the trial court denied his federal due process rights by refusing to grant him a continuance because of discovery violations; (2) the court improperly denied his request for pinpoint instructions on voluntary manslaughter; (3) the court failed to respond properly to jury questions; and (4) there was insufficient evidence to support his conviction for second degree murder. We disagree with these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. Prosecution’s case-in-chief.
Sandra Casas met defendant in 2004. Casas soon became pregnant with twins, and she, defendant, and Casas’s daughter with another man moved into an apartment together. Casas’s mother, Amelia Sanchez Casanova, lived with them for about one month before the twins were born and one more month after they were born. Casanova slept with Casas’s older daughter in the living room, and Casas slept with the twins in the bedroom. Casas placed pillows on the bed so that the babies wouldn’t fall off. Defendant slept on the floor alongside the bed.
Manuel de la Torre lived in the same apartment complex, and he and defendant were friends. De la Torre could hear Casas and defendant argue in their apartment: Casas told defendant he wasn’t making enough money, and defendant once told her to shut up. Defendant told de la Torre he was sad because he was fighting with Casas and he felt that she no longer loved him. The morning before she died, de la Torre overheard Casas say, when defendant was out of earshot, that the twins weren’t defendant’s and wonder why he didn’t just leave.
About 4:00 p.m. on October 8, 2006, defendant, Casas and the children went to his sister’s, Guadalupe Reyes, house. Defendant brought 12 beers with him. By the time he left around 8:00 p.m., only two beers were left, and nobody else had been drinking. When he left, defendant’s eyes were red, his face was spotty, and he smelled of alcohol.
Early Sunday morning on October 9, 2006, around 2:00 a.m., defendant called his sister, Maria Olmos, and told her he had a problem, although he didn’t say what it was. Defendant was outside the house, and he appeared to be upset. Maria tried to get him to come inside, but he left. From a park, defendant called 911 around 2:00 a.m. and asked someone go to his apartment and help his children and also to pick him up because he’d killed his wife, who had told him she’d been with another man. Officers found defendant sitting on a park bench. Blood was on his shirt sleeves and underclothes. He had cuts on his neck and arm. He told officers he had a knife in his car; it was a locking blade knife with a reddish hardened substance on it. There were linear cuts in the seats of the car.
It might have been between 1:00 and 1:15 a.m.
Defendant explained that the cuts predated Casas’s death.
Officers went to Olmos’s apartment and forced open the front door. Casas’s five-year-old daughter was on a bed in the living room. Officers forced open a locked bedroom door. On the floor were two infants. Casas’s body, wearing only underwear and covered with blankets, was on the bed. Wedged between the mattress and wall were clothes, including a shirt with holes that lined up with wounds to Casas’s chest and neck. The bedroom was stained throughout with blood.
Lividity in Casas’s face indicated tremendous high blood pressure. The most common cause of lividity is sudden failure of the right side of the heart, but there was no sign of such failure in Casas’s heart. Compression of the neck can also cause blood to build up in the face and neck, although it could also be caused by extreme yelling or someone sitting on the victim’s chest. Casas had three stab wounds: one below the right ear, a second to the chest, and the third to the neck. She also had three areas of bruising which could be associated with the stab wounds. Facial hemorrhaging and bruises at the left side of her neck indicated neck compression or strangulation. Casas was probably strangled before being stabbed. The cause of death was multiple stab wounds, with one hitting the carotid artery. Casas had defensive wounds to her hand and legs.
Later that morning of October 9, 2006, officers interviewed defendant. He’d had some beers that night. Defendant had several bandaged wounds on his forearms that he said were self-inflicted. The blood on his boxers was his. He initially said he could not remember what happened after the children went to bed. He said he didn’t want to live because he had done something bad. He denied arguing with Casas that night, although they had argued days ago about the family and money. Then he said she threatened to leave him because he was never home. The knife he used was the one found in his car, and he hurt Casas with it once or twice on the neck. More likely than not he covered her mouth. After hurting Casas, he went into their bathroom and cut himself with the razor. He wiped off the knife he’d used to stab Casas and took it with him. He drove around and called his sister. He drove to a park where, thinking of the children, he called 911. He didn’t ask for an ambulance because he believed that Casas was already dead.
B. Defense case.
1. Defendant’s testimony.
When defendant met Casas in 2004, they were both separated from their spouses. When Casas got pregnant with twins, he was happy, and they agreed to move into an apartment together with Casas’s daughter. Defendant worked at an auto shop and he had two other part-time jobs. The babies were born in February 2006. As the family’s sole source of financial support, he made just enough to cover their expenses. Two or three months before Casas died, their relationship changed. Casas said “bad” things to him: he was useless; she’d used him to have children; he’d been in the United States for a long time and had nothing to show for it; she didn’t love him; she was going to leave him and take the children away from him; she was going to change the children’s last name; she was unable to go out; she didn’t have enough money to buy clothes; he got home late; she wanted a bigger apartment; and he didn’t help out at home, although he said he tried to help her as much as he could. Not wanting to argue with her, defendant didn’t reply. He would always tell her he loved her. She wanted him to get a different job, but he told her it was hard for him. Sometimes he got home late because he was attending a court-ordered program after an arrest for a DUI. It also upset her when he drank.
About two weeks before she died, Casas got a job and she told defendant she was leaving him. Defendant didn’t want to separate from Casas, and she told him she would give him a chance, but he had to stop drinking. They discussed things they didn’t like, and he told her he didn’t like the way she treated him. He stopped drinking, but Casas continued to say bad things to him.
On the morning of October 8, 2006, defendant and Casas got up and did the laundry and cleaned the house. Then they went to defendant’s sister’s house, where defendant drank beer. Defendant and Casas returned to their apartment around 9:00 or 9:30 p.m. While defendant changed the babies’ diapers on the floor in the bedroom, Casas’s brother dropped by to pick up a camera. Casas’s brother left. Defendant was going to put the babies on the bed, but Casas wanted to have sex. They started to have sex, but defendant stopped; he’d been drinking and didn’t like to have sex after drinking. He went to the bathroom, and Casas angrily hit the bed with her hand and said he was “useless.” When he finished in the bathroom, Casas repeated that he was useless and old, that he’d been in the United States for a long time but hadn’t accomplished anything, and that she didn’t love him. She said she’d used him to have children, and she would take them away and change their names.
Then she said she was seeing another man. Defendant got angry and lost control. He grabbed a knife from the closet that he kept for protection and stabbed Casas. When he stabbed Casas, defendant got on top of her. When he came out of it, blood was gushing out of Casas. He tried to stop the blood, but she closed her eyes. He never wanted to kill her. He didn’t call for help. He went back and forth into the bathroom, staring at himself and washing his hands. In the bedroom, he removed Casas’s clothes and placed her body in the center of the bed. He pulled the bloodied sheets down and put a bed cover underneath her and covered her with a blanket. He removed his bloodied boxers and put on new ones. Taking a razor, he cut his arms. Bleeding, he stayed in the bathroom for about half an hour to 45 minutes. He thought about killing himself, but he instead took a shower. He washed off the knife he’d used to kill Casas and put it in his pants pocket. Afraid that Casas’s daughter would try to go into the bedroom, defendant locked the bedroom door and left the apartment. He drove around for awhile before stopping at his sister’s house and then going to the park, where he called 911. Confused, he told the police that he and Casas hadn’t fought.
He had a DUI with two prior convictions in 2005. He served 47 days in jail.
1. Expert’s testimony.
A psychologist, Dr. Sara Arroyo, interviewed defendant three times. Defendant’s first wife left him for another man. Dr. Arroyo described defendant as a hardworking, family man who was introverted and conflict averse. She diagnosed him with intermittent chronic depression, anxiety disorder, and alcoholism. He tended to internalize stress, and his stressors were financial, an inability to stop drinking, and Casas wanting more from him than he could give. His relationship with her caused him low self-esteem. These stressors could put a person over the edge. And when people under such stress explode, it’s impulsive.
There are two kinds of responses: (1) aggressive or violent conduct from a person in a state of cold bloodedness; or (2) aggressive or violent conduct from a person in a state of hot bloodedness. The first person plans to engage in violence, and the second reacts to provocation. A person who acts in a hot-blooded manner doesn’t think about it; there’s no time to think or to reflect.
C. Rebuttal case.
Dr. Barry Hirsch is a psychologist with expertise in impulse control and violent behaviors, including physical, verbal and sexual acts of aggression. Affective aggression refers to being overcome by negative emotion. A person who acts with affective aggression may have impulse control disorder and patterns of substance abuse. The doctor would also expect such a person to have difficulty maintaining work, because they are difficult to get along with and they might have a history of inappropriate behavior. Once a person enters into an affective aggressive emotional driven response, it is hard for them to turn off their behavior; for example, the person may continue to use a weapon even after the victim dies. In contrast, a predatory (or instrumental) response is a more focused and deliberate killing or injury. The decision to harm a person can occur very quickly, in a second or two.
II. Procedural background.
Trial was by jury. On September 16, 2008, the jury found defendant guilty of second degree murder (Pen. Code, § 187, subd. (a)). The jury found true the allegation that defendant used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). After denying defendant’s new trial motion, the trial court sentenced defendant, on October 16, 2008, to 15 years to life plus a consecutive one year for the weapon enhancement.
All further undesignated statutory references are to the Penal Code.
Defendant raised the failure to give the pinpoint instructions and sufficiency of the evidence as grounds for the motion.
DISCUSSION
I. Defendant’s federal constitutional rights were not denied by the trial court’s refusal to allow a continuance for discovery.
When the prosecution stated its intent to call Dr. Hirsch as a rebuttal witness, defense counsel asked either that his testimony be precluded or that the defense get a continuance because the prosecutor had failed to turn over discovery concerning the witness. The trial court denied the motion, and defendant now contends he was denied his due process right to reciprocal discovery; he was deprived of his right to effective assistance of counsel; and he was deprived of his ability to mount a complete defense. We disagree.
A. Additional facts.
The defense concluded its case with Dr. Arroyo, who discussed two kinds of responses: (1) aggressive or violent conduct from a person in a state of cold bloodedness; and (2) aggressive or violent conduct from a person in a state of hot bloodedness. The first person plans to engage in violence and the second reacts to provocation. A person who acts in a hot-blooded manner doesn’t think about it; there’s no time to think or to reflect. On cross-examination, Dr. Arroyo referenced an article about hot-blooded and cold-blooded responses, but she hadn’t mentioned it in her report.
At the close of defendant’s case, the prosecution said it would call Dr. Hirsch as a rebuttal witness. Asked for a proffer, the prosecutor said that the doctor would testify about the validity of the MCMI III, “which is the report that he provided to you today.” He would also testify that he videotaped examinations of subjects, that he read all police and arrest reports, and that Casas’s injuries were inconsistent with being inflicted by someone who had experienced some type of outrage, that is, someone acting in a heat of passion. Defendant requested an Evidence Code section 402 hearing, and Dr. Hirsch then testified (out of the jury’s presence) about affective and predatory types of responses, adding that predatory responses result in different wound patterns.
After the hearing, the trial court allowed Dr. Hirsch to testify about predatory versus affective killings and to respond to Dr. Arroyo’s testimony about how someone with stressors would react in an emotional rather than a cold-blooded way. But the court precluded him from testifying that he could determine whether a killing was predatory or affective by looking at wound patterns. Defense counsel asked that Dr. Hirsch’s testimony be precluded altogether or that the defense be given a continuance because she had not been given any materials about Dr. Hirsch’s testimony, which she said she’d asked for “months ago.” When asked to be more specific, defense counsel referred to Dr. Hirsch’s testimony at the Evidence Code section 402 hearing that he had searched literature on the internet. Asked by the court to clarify her position further, defense counsel responded: “What I’m saying is I don’t––I’m entitled to what he bases his opinion on. And I said certainly he can comment on what Dr. Arroyo said. But it’s my understanding he’s making opinions based on different things than what she was talking about and that’s what I’m entitled to be able to review.” The court asked if she was “saying that the People’s expert, even though it’s called in rebuttal, in responding to what your expert says, has to bring in all of the underlying research that he relied on and produce that?” Defense counsel answered, “Yes.” The prosecutor responded that there was nothing in Dr. Arroyo’s report about hot-blooded and cold-blooded murders, and therefore the doctor had testified outside the scope of her report: “How are we to anticipate that the defense is going to raise this issue that’s not in her report and raise––and talk about an article that was never given to us? And now she’s claiming discovery violations and she’s asking for a continuance when she’s the one who brought this issue into the court in her psychologist?” The court found no discovery violation and denied the request for a continuance.
B. The trial court did not abuse its discretion.
A prosecutor must disclose to the defense the name and address of persons he or she intends to call as witnesses at trial. (§ 1054.1, subd. (a); In re Littlefield (1993) 5 Cal.4th 122.) These disclosures shall be made at least 30 days before trial. (§ 1054.7.) The disclosure requirements of section 1054.1 extend to rebuttal witnesses: “[T]he disclosure by the defense of its witnesses under section 1054.3 signals to the prosecution that the defense ‘intends’ to call those witnesses at trial. It follows that the prosecution must necessarily ‘intend’ to call any of its witnesses who will be used in refutation of the defense witnesses if called.” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375; see also People v. Gonzalez (2006) 38 Cal.4th 932, 955-956.) “[T]he requirement that the prosecution disclose the witnesses it ‘intends to call at trial’ [includes] ‘all witnesses it reasonably anticipates it is likely to call....’ [Citation.]” (Izazaga, at p. 376, fn. 11.) The requirement to disclose rebuttal witnesses extends to the “written or recorded statements of [those] witnesses.” (Id. at p. 374.)
If a party does not comply with these disclosure requirements, “a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” (§ 1054.5, subd. (b); see also People v. Jenkins (2000) 22 Cal.4th 900, 951 [trial court has broad discretion to fashion a remedy in the event of discovery abuse].) Prohibiting testimony is not an appropriate discovery sanction in a criminal case absent showing of significant prejudice and willful conduct. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757-1758.) A trial court’s ruling on matters concerning discovery are generally reviewed under an abuse of discretion standard. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.)
Defendant contends that the prosecution failed to comply with these disclosure requirements and “sandbagged” the defense by failing to provide any reports from Dr. Hirsch. This is not an accurate characterization of what occurred in the trial court. The prosecution did disclose a report prepared by Dr. Hirsch, albeit in an untimely fashion at the close of the defense case and just before calling Dr. Hirsch as a rebuttal witness. This untimely production, however, was neither the basis for defendant’s objection in the trial court nor the error primarily complained of on appeal. Rather, the trial court repeatedly pressed defense counsel to clarify the basis for her claim that the prosecution had violated its discovery obligations. She neither referred to the late production of Dr. Hirsch’s report, nor did she suggest that there were other reports that were not produced.
Instead, she asserted that Dr. Hirsch was required to produce all of the underlying research he relied on. That is not what the reciprocal discovery statutes require, and the main case defendant relies on does not support his position. Section 1054.1, subdivision (f), requires the prosecuting attorney to disclose, for example, the names and addresses of witnesses he or she intends to call at trial and any “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” The section does not require the prosecution to produce a bibliography of materials its expert rebuttal witness relied on. If that was the standard, then the defense failed to comply with it, for Dr. Arroyo based her opinion about hot-blooded and cold-blooded crimes on an article that was not produced to the prosecution.
Nor does People v. Gonzalez, supra, 38 Cal.4th 932, the case defendant relies on, contain such a requirement. Gonzalez was a capital case in which the prosecution refused to provide discovery of its intended rebuttal witnesses. The court held that the defense was entitled to discover those rebuttal witnesses. (Id. at pp. 956-957.) Gonzalez did not, as here, involve disclosure of the literature expert witnesses relied on; it involved the disclosure of witnesses. There is no claim here that the prosecution failed to disclose Dr. Hirsch as a rebuttal witness.
Moreover, the issues Dr. Hirsch testified about-what he would have done differently to prepare for testifying, why he wouldn’t use the MCMI III test, and affective versus predatory responses-could not have been a surprise to defense counsel. His testimony was directly implicated by Dr. Arroyo’s. His testimony also was initially fleshed out at the Evidence Code section 402 hearing. The trial court precluded Dr. Hirsch from testifying that wound patterns can show whether a killing was predatory or affective; and therefore, the defense could have suffered no prejudice from any failure to produce discovery on that issue.
Because the defense was not entitled to discovery of the literature Dr. Hirsch relied on, the trial court did not abuse its discretion by denying a continuance. For the same reason, defendant’s rights to effective assistance of counsel (see, e.g., Strickland v. Washington (1984) 466 U.S. 668, 687-688) and opportunity to present a complete defense (see, e.g., Crane v. Kentucky (1986) 476 U.S. 683, 690) were not violated.
II. Pinpoint instructions.
Defendant submitted five pinpoint instructions, which the trial court refused to give. Defendant now contends that the failure to give those instructions deprived him of his constitutional right to correct and complete jury instructions under the Sixth and Fourteenth Amendments of the federal Constitution. We disagree.
“A pinpoint instruction ‘relate[s] particular facts to a legal issue in the case or “pinpoint[s]” the crux of a defendant’s case, such as mistaken identification or alibi.’ [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 214.) Pinpoint instructions are designed to discuss a theory, not specific evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) Pinpoint instructions must be given on request only when there is substantial evidence to support them and are not argumentative or duplicative. (People v. Stanley (2006) 39 Cal.4th 913, 946; People v. Marshall (1997) 15 Cal.4th 1, 39; Ward, at p. 214.) It is inappropriate to select “ ‘certain material facts, or those which are deemed to be material, and endeavoring to force the court to indicate an opinion favorable to the defendant as to the effect of such facts, by incorporating them into instructions containing a correct principle of law[.]’.... ‘An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue.’ [Citations.]” (Wright, at p. 1135.) We review de novo whether the instructions correctly state the law. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Posey (2004) 32 Cal.4th 193, 218.)
The jury here was instructed on murder and on manslaughter as a lesser offense to murder. As to manslaughter, the jury was instructed with CALCRIM No. 570. Defendant asked that the CALCRIM instruction be supplemented with pinpoint instructions, but the trial court refused. The first proposed pinpoint instruction was: “The provocative conduct may be verbal and it may comprise a single incident or numerous incidents over a period of time.” The third proposed pinpoint instruction was: “Examples of sufficient provocation are: [¶] 1. A sudden and violent quarrel. People v. Elmore [(1914)] 167 Cal. 205; [¶] 2. Verbal taunts by unfaithful wife. People v. Berry [(1976)] 18 [Cal.]3d 509; [¶] 3. Infidelity of a lover. People v. Borchers [(1958)] 50 [Cal.]2d 321.” (Italics added.) The trial court refused to give the first pinpoint instruction on the ground it was argumentative and was already covered by the instructions, and the court said that the third instruction was something that “the jury can adequately decide.” The trial court was correct. (People v. Wharton (1991) 53 Cal.3d 522, 571, fn. 10 [no federal constitutional error in declining proposed pinpoint instruction when the instructions permitted the jury to consider the defense theory].) CALCRIM No. 570 informed the jury that “no specific type of provocation” was required. Both proposed pinpoint instructions improperly related particular facts, that is, the victim’s verbal taunts and her alleged infidelity, to the legal issue or theory of whether there was sufficient provocation for voluntary manslaughter. Also, the first pinpoint instruction was repetitive of CALCRIM No. 570, which stated that sufficient provocation could occur over a short or long period of time.
“ ‘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. The defendant killed someone because of a sudden quarrel or in the heat of passion, if[:] [1.] The defendant was provoked; [2.] As a result of that provocation, the defendant acted rashly[, ] [a]nd under the influence of intense emotion that it could obscure his reasoning and judgment; and [3.] [The] provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than [from] judgment.
Moreover, defense counsel’s closing arguments fully explained the defense theme that Casas’s verbal taunts and infidelity provided sufficient provocation. In her closing argument, defense counsel pointed to Casas’s verbal taunts: defendant wasn’t making enough money; he didn’t have a good job; she needed more clothes; they needed a bigger apartment; he was old; she would take the kids away and change their names; she’d used him to have children; after sex she told defendant he was useless; and she was seeing someone else. As a result of this provocation, defendant “loses it.” “[T]his is the classic situation of heat of passion.”
The second (“Heat of passion is a state in which judgment gives way to impulse and rashness”) and fourth (“Passion need not be rage or anger; it may be any violent, intense, high wrought or enthusiastic emotion. [¶] People v. Borchers, Jr. [(1958)] 50 [Cal.]2d 321” (italics added)) proposed pinpoint instructions were similarly duplicative of CALCRIM No. 570. The CALCRIM instruction informed the jury that the defendant killed someone in the heat of passion if the provocation would have caused a person of average disposition to “act rashly and without due deliberation, that is, from passion rather than from judgment.” The CALCRIM instruction told the jury that 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.” The pinpoint instructions were therefore repetitive.
Defendant’s fifth proposed pinpoint instruction concerned the mental state for voluntary manslaughter, which requires either an intent to kill or a conscious disregard for life. (People v. Genovese (2008) 168 Cal.App.4th 817, 831 [citing People v. Blakeley (2000) 23 Cal.4th 82, 88-91 & People v. Lasko (2000) 23 Cal.4th 101, 108-111].) Defendant thus proposed this pinpoint instruction: “Voluntary [m]anslaughter does not require an intent to kill. [¶] A killer who, acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion is guilty of voluntary manslaughter. [¶] People v. Lasko [Jr.] [(2000)] 23 [Cal.]4th 101.” In the absence of this pinpoint instruction, defendant argues that the jury may have thought that to find him guilty of voluntary manslaughter they had to first find he intended to kill Casas.
In Genovese, the Court of Appeal rejected a similar argument. The Genovese jury, like the jury here, was instructed: “ ‘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). (People v. Genovese, supra, 168 Cal.App.4that p. 831.) “The killing could not ‘otherwise be murder’ unless the jury found defendant intended to kill the victim or acted with conscious disregard for human life, and the jury was so informed in the instruction defining murder (i.e., that to prove murder, the prosecution must prove [that] defendant acted with malice aforethought, and there are two kinds of malice aforethought-express, which requires [an] intent to kill, and implied, which requires conscious disregard for human life).” (Id. at pp. 831-832; see also CALCRIM Nos. 520 & 521.) We agree with Genovese’s reasoning. The jury here was informed that a heat of passion killing, whether intentional or in conscious disregard of life, was voluntary manslaughter. Viewing the jury instructions as a whole, the jury would have understood that they did not have to find defendant harbored an intent to kill in order to find him guilty of voluntary manslaughter. Defendant’s proposed pinpoint instruction was therefore unnecessary.
III. Clarification of the jury instructions.
During deliberations, jurors asked a question, to which the trial court allegedly gave an inadequate response. Because the court failed to clarify the instructions, defendant contends that he was deprived of his Sixth Amendment right to a trial by jury and of his Fourteenth Amendment right to a fair trial. We disagree.
The trial court has a duty to instruct sua sponte on “general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) If “the original instructions are themselves full and complete, ” whether additional explanation is required “to satisfy the jury’s request for information” is a matter left to the trial court’s discretion. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682.) Indeed, “ ‘comments diverging from the standard are often risky. [Citation.]’ ” (People v. Solis (2001) 90 Cal.App.4th 1002, 1015; see People v. Montero (2007) 155 Cal.App.4th 1170, 1179 [court did not abuse its discretion in advising the jury to re-read the form instruction].)
The jury was instructed on murder and manslaughter (CALCRIM Nos. 500, 520, 521, 522, and 570). The jury was also given a written copy of the instructions. The jury began its deliberations on Friday, September 12, 2008, at 11:00 o’clock in the morning. On Monday, September 15, the jury asked: “We would like clarification on the following[:] ‘if he carefully weighed the considerations for and against his choice.’ [¶] What does this mean? [¶] And then[, ] ‘knowing the consequences decided to kill.’ What consequences? Of the act[, ] i.e.[, ] death or consequences of murder [illegible] or children [illegible]. Do the instructions on page 23 apply in deciding between Murder #1 and Murder #2?” The court’s written response was: “As for the first two questions, please refer back to the jury instructions. No further definitions are being provided. As for the third question, please follow the instructions. Some of the instructions may not apply, depending on your findings regarding the facts.” After receiving this instruction, the jury asked no further questions and delivered its verdict on September 16.
CALCRIM No. 570 was on page 23 of the instructions.
We first note that the record on appeal does not contain the reporter’s transcript of September 15, 2008. The record simply states that the court and counsel conferred regarding the jury question. There is no indication whether defense counsel objected to the court’s response to the question. In any event, a jury’s request for further explanation of instructions need not always be granted. Here, the first two questions the jury asked concerned CALCRIM No. 521, which described the degrees of murder. The jury wanted clarification on what careful weighing of the “considerations for and against his choice” meant and what were the consequences of his choice. CALCRIM No. 521, however, was full and complete, and therefore the trial court was within its discretion to refer the jury back to the instructions. Although a court has a duty to help the jury understand the legal principles it is asked to apply, a court need not elaborate on standard instructions: “Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Responding in any other fashion involved the type of “risk” the court in Beardslee cautioned against.
The court reporter has certified that there are no notes from that day.
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
In response to the last question the jury asked-whether CALCRIM No. 570 applied “in deciding between Murder #1 and Murder #2”-the trial court again told them to refer back to the instructions, adding that “[s]ome of the instructions may not apply, depending on your findings regarding the facts.” Defendant complains that this question shows that the jury was confused about the difference between murder and manslaughter and that the court’s response suggested that manslaughter did not apply. The trial court, however, properly directed the jury to review the instructions as a whole, which review should have cleared up any confusion about first degree murder, second degree murder and manslaughter. That there was no further request for clarification suggests that the response was sufficient. Nor was there anything suggestive about the court’s instruction that, depending on the jury’s view of the facts, not all of the instructions would apply. That was a correct statement of the law and a mere repetition of instruction the jury had already been given via CALCRIM No. 200.
The jury was instructed with CALCRIM No. 200: “ ‘Some of these instructions may not apply, depending on your findings about the facts of this case.
We therefore conclude that the trial court properly instructed the jury.
IV. There was sufficient evidence to support second degree murder.
Defendant contends that there was insufficient evidence to support his conviction for second degree murder. We disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant's guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, ... that... does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Murder is a killing with “malice aforethought.” (§ 187, subd. (a).) Murder is of the first degree when it is committed in a willful, deliberate and premeditated fashion or in the perpetration of an enumerated felony. (§ 189.) All other murders are of the second degree. (Ibid.) Second degree murder is the unlawful killing of a human being with malice aforethought, but without the willfulness, premeditation, and deliberation, that would support a conviction for first degree murder. (§§ 187, subd. (a), 189; People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice may be express or implied. (§ 188.) A defendant acts with express malice if he unlawfully intended to kill. “Malice is implied... when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” (People v. Cook (2006) 39 Cal.4th 566, 596; see also Knoller, at p. 157.)
In accordance with these principles, the jury was instructed on first and second degree murder and manslaughter. CALCRIM No. 521, for example, instructed: “The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with 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, not the length of time. [¶] All other murders are of the second degree.” The jury was also told that provocation could reduce a murder from first to second degree murder or to manslaughter. (CALCRIM No. 522.)
A killing may constitute voluntary manslaughter, rather than murder, when it is committed in a “sudden quarrel or heat of passion.” (§ 192, subd. (a).) As we said, to establish voluntary manslaughter under a heat of passion theory, “[a]dequate provocation and heat of passion must be affirmatively demonstrated. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 60.) To constitute “ ‘heat of passion’ ” such as will mitigate a killing to manslaughter, it must be “ ‘such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances[.]’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1252.)
Defendant focuses on the evidence supporting his voluntary manslaughter defense-that is, Casas’s verbal taunts and claim of infidelity-to show that there was insufficient evidence of second degree murder. The standard of review requires us, however, to focus on evidence supporting the judgment of second degree murder. Even if the jury believed that Casas had a history of insulting defendant, they could have believed that this supported a finding that he acted with malice rather than from heat of passion, that is, he was angry at her and wanted her out of his life. Defendant himself also testified that he killed Casas with a knife that he kept in the closet for protection. He therefore had to get the knife from the closet and open it (it was a locking blade knife) before stabbing Casas three times, including one fatal blow to the carotid artery. This evidence supports the conclusion that the killing resulted from an intentional act, the natural consequences of which was dangerous to human life, and the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. We also cannot forget that much of the defense was based on defendant’s own testimony about what happened that night. The jury had the benefit of watching defendant as he testified and clearly disbelieved his explanation that he suddenly lost control and couldn’t remember stabbing Casas.
Defendant, however, likens this case to People v. Berry (1976) 18 Cal.3d 509, 515-516, and to People v. Borchers (1958) 50 Cal.2d 321, 329. In Berry, a jury found the defendant guilty of the first degree murder of his wife. Although there was evidence of provocation-defendant’s wife returned from a trip and announced she’d fallen in love with another man and over the course of several weeks taunted defendant with her affair-the trial court refused to instruct on voluntary manslaughter. The Court of Appeal found that the jury should have so instructed the jury. Berry, therefore, was an instructional error case, unlike this case. The jury here was instructed on voluntary manslaughter and rejected that theory of the killing. Berry is not on point. Nor is People v. Borchers, supra, at pages 323 to 327, helpful. The issue on this appeal is whether there was sufficient evidence in this case to sustain the judgment, and it bears repeating that the standard of review requires us to give deference to the jury’s verdict.
In any event, this case is closer to People v. Cole (2004) 33 Cal.4th 1158, than it is to the cases defendant cites. In Cole, the defendant and his girlfriend’s five-year relationship was characterized by excessive drinking and sometimes violent arguments. (Id. at pp. 1216-1217.) One night, defendant was drunk and he and his girlfriend argued. While she was in bed, defendant poured gasoline over her and lit her on fire. (Id. at p. 1174.) Noting that this day was “nothing out of the ordinary” for defendant and his girlfriend, the court concluded that there was insufficient evidence to support the voluntary manslaughter instruction. Similar to Cole, the defendant and Casas had been fighting for months. Defendant admitted that he was an alcoholic and that Casas had threatened to leave him if he didn’t stop drinking. Defendant’s intoxication on the night he killed Casas was therefore nothing out of the ordinary, nor were her verbal taunts.
The jury here certainly could have believed that defendant killed Casas in a heat of passion. But there was sufficient evidence to support a contrary conclusion.
V. Cumulative error.
As we have “ ‘either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial[, ] [w]e reach the same conclusion with respect to the cumulative effect of any [purported] errors.’ ” (People v. Cole, supra, 33 Cal.4th at pp. 1235-1236.)
DISPOSITION
The judgment is affirmed.
We concur KLEIN, P. J. CROSKEY, J.
“ ‘Heat of passion does not require heat of anger, rage, or any specific emotion. It can be any specific 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’ve 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 a long period of time. It is not if you have that the defendant simply was provoked [sic].
“ ‘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 a person of average disposition would have been provoked and how such a person would react in the same situation, knowing the same facts. If enough time passed between the provocation and the killing for a person of average disposition to cool off or regain his or her [clear reasoning and] judgment, then the charge is not reduced to voluntary manslaughter on this basis.
“ ‘The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.’ ”
“ ‘Do not assume, just because I give a particular instruction, that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.’ ”