California Court of Appeal Jun 2, 2021 No. E074435Unpublished
Filed 6/2/21 P. v. Nieto CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074435
v. (Super.Ct.No. FWV17004499)
JOHN NIETO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,
Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn
Kirschbaum and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury convicted John Nieto of first degree murder. (Pen. Code, § 187, subd. (a);
unlabeled statutory references are to this code.) He was sentenced to 25 years to life in
state prison.
On appeal, Nieto argues that the trial court prejudicially erred by (1) failing to
define the term “provocation” in the jury instruction pertaining to second degree murder,
“‘Second degree murder is the unlawful killing of a human being with malice
aforethought but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree murder.’” (Beltran, supra,
6
56 Cal.4th at p. 942.) To reduce a murder to second degree, “premeditation and
deliberation may be negated by heat of passion arising from provocation.” (People v.
Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).) “If the provocation would
not cause an average person to experience deadly passion but it precludes the defendant
from subjectively deliberating or premeditating, the crime is second degree murder.
[Citation.] If the provocation would cause a reasonable person to react with deadly
passion, the defendant is deemed to have acted without malice so as to further reduce the
crime to voluntary manslaughter.” (Ibid.)
B. Instructional Error
The jury was instructed with the standard instructions for degrees of homicide
(CALCRIM No. 520), first degree murder (CALCRIM No. 521), provocation
(CALCRIM No. 522), and voluntary manslaughter (CALCRIM No. 570). CALCRIM
No. 522 was given as follows: “Provocation by the victim 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 by the victim, 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.”
(CALCRIM No. 522.) Nieto did not request any clarification or modification of any of
the instructions.
7
The jury was also instructed on voluntary manslaughter according to a modified
version of CALCRIM No. 570 as follows: “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 by the victim; [¶]
2. As a result of the provocation, the defendant acted rashly and under the influence of
intense emotion that obscured his reasoning or 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.” “In deciding whether
the provocation was sufficient, consider whether a person of average disposition, in the
same situation and knowing the same facts, would have reacted from passion rather than
from judgment.”
Nieto argues that “the term provocation in the context of second degree murder
has a technical meaning peculiar to the law,” which relates to the effect that the
provocation has on a defendant’s subjective state of mind as opposed to the objective
reasonableness of the provocation necessary to reduce the crime to voluntary
manslaughter. Because of that purported technical meaning, he argues that the trial court
had a sua sponte obligation to modify CALCRIM No. 522 to instruct the jury on that
meaning. In essence, he argues that CALCRIM No. 522 is misleading because it does
8
not define the term “provocation” for second degree murder as being subjective. We are
not persuaded.1
Absent a request, the trial court has no sua sponte obligation to instruct on
provocation for second degree murder, because it is a pinpoint instruction. (People v.
Rivera (2019) 7 Cal.5th 306, 328.) Even when a trial court “has no sua sponte duty to
instruct on a particular legal point, when it does choose to instruct, it must do so
correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) In addition, the trial court
generally “has a sua sponte duty to give amplifying or clarifying instructions ‘“where the
terms used [in an instruction] have a technical meaning peculiar to the law.”’” (People v.
Richie (1994) 28 Cal.App.4th 1347, 1360.) “‘“A word or phrase having a technical, legal
meaning requiring clarification by the court is one that has a definition that differs from
its nonlegal meaning.”’” (People v. Cross (2008) 45 Cal.4th 58, 68.) We independently
review whether a jury instruction correctly states the law. (People v. Bates (2019) 35
Cal.App.5th 1, 9.)
Other courts have concluded that CALCRIM No. 522 is not misleading. On
appeal from a first degree murder conviction, the defendant in Hernandez, supra, 183
Cal.App.4th 1327, argued that CALCRIM No. 522 was incomplete and misleading in
part because it did not instruct the jury that provocation insufficient to reduce the crime to
1 Because we conclude that the trial court did not err, we need not and do not address the People’s contention that Nieto forfeited this argument by failing to request a clarifying instruction in the trial court. (See People v. Mayfield (1997) 14 Cal.4th 668, 778-779, abrogated on another ground by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
9
manslaughter could be sufficient to reduce the crime to second degree murder.
(Hernandez, at p. 1332.) The court rejected the argument, explaining: “CALCRIM No.
522 instructs the jury to ‘consider the provocation in deciding whether the crime was first
or second degree murder’ and ‘consider the provocation in deciding whether the
defendant committed murder or manslaughter.’ Thus, the instruction plainly states the
jury should consider provocation for both second degree murder and manslaughter.” (Id.
at p. 1335.)
Relying in part on the analysis in Hernandez, supra, 183 Cal.App.4th 1327,
People v. Jones (2014) 223 Cal.App.4th 995 (Jones) rejected the defendant’s argument
that the instructions on provocation for second degree murder and voluntary
manslaughter were misleading because they did not “inform the jury that the objective
standard applies only for reduction of murder to voluntary manslaughter, and does not
apply to reduce first to second degree murder.” (Jones, supra, at p. 999.) There, as here,
the jury was instructed with CALCRIM Nos. 520, 521, 522, and 570. (Ibid.) Jones
concluded that the instructions given accurately stated the law. The court explained that
the instructions “accurately inform the jury what is required for first degree murder, and
that if the defendant’s action was in fact the result of provocation, that level of crime was
not committed. CALCRIM Nos. 521 and 522, taken together, informed jurors that
‘provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this
in turn shows no premeditation and deliberation.’ [Citation.] As the jury also was
instructed [with CALCRIM No. 570], a reduction of murder to voluntary manslaughter
10
requires more. It is here, and only here, that the jury is instructed that provocation alone
is not enough for the reduction; the provocation must be sufficient to cause a person of
average disposition in the same situation, knowing the same facts, to have reacted from
passion rather than judgment. [¶] There was no error in giving these instructions.” (Id. at
p. 1001.)
We agree with the reasoning and analyses in Jones, supra, 223 Cal.App.4th 995,
the law as it pertains to provocation for second degree murder and is not misleading.
Nieto claims that Jones, supra, 223 Cal.App.4th 995, and Hernandez, supra, 183
Cal.App.4th 1327, are inapposite because the defendants in those cases did not address
the same argument that Nieto makes about provocation having a technical meaning
peculiar to the law. Regardless of the issues addressed or not addressed in Jones and
Hernandez, our Supreme Court has held that in cases in which the evidence is not
sufficient to support an instruction on voluntary manslaughter the term provocation as
used in the provocation instruction bears its “common meaning,” which requires ‘“no
further explanation in the absence of a specific request.”’ (People v. Souza (2012) 54
Cal.4th 90, 118 (Souza); People v. Cole (2004) 33 Cal.4th 1158, 1217-1218 (Cole).)
Souza and Cole involved the CALJIC version of the provocation instruction for second
degree murder (CALJIC No. 8.73). (Cole, supra, at p. 1217; Souza, supra, at pp. 117-
118.) Nieto did not cite the Supreme Court precedent on this issue in his opening brief
and did not respond in his reply brief to the People’s argument on this point. He has
11
therefore provided no argument as to why or how the term “provocation” should be
treated differently in CALCRIM No. 522 or in the circumstances of this case. We are
bound by Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
In addition, in rejecting another component of the defendant’s challenge to
CALCRIM No. 522, Hernandez, held that provocation “was not used in a technical sense
peculiar to the law.” (Hernandez, supra, 183 Cal.App.4th at p. 1334.) Quoting a
dictionary, Hernandez explained that “[p]rovocation means ‘something that provokes,
arouses, or stimulates’; provoke means ‘to arouse to a feeling or action[;] . . . to incite to
anger.’” (Ibid.) As Hernandez explained, that definition of “provocation” comports with
its meaning in the law (ibid.), which our Supreme Court has explicated as follows: “The
evidentiary premise of a provocation defense is the defendant's emotional reaction to the
conduct of another, which emotion may negate a requisite mental state.” (People v. Ward
(2005) 36 Cal.4th 186, 215.) Given the common meanings of the terms “provocation”
and “provoke,” Hernandez concluded that “the jurors would have understood that
provocation (the arousal of emotion) can give rise to a rash, impulsive decision, and this
in turn shows no premeditation and deliberation.” (Hernandez, at p. 1334.)
Nieto argues that Hernandez, did not include any “discussion of the subjective
standard of provocation in the context of second degree murder and the objective
standard of provocation in the context of voluntary manslaughter based on heat of
passion.” The argument mischaracterizes Hernandez, which explained that provocation
12
sufficient for voluntary manslaughter is based on objective reasonableness and
provocation for second degree murder is based on a subjective state of mind.
(Hernandez, supra, 183 Cal.App.4th at p. 1332.) Thus, although Hernandez did not
mention that distinction in its analysis of whether the term “provocation” has a technical
legal meaning, the court was aware of the different standards for provocation when it
held that CALCRIM No. 522 uses the term “provocation” in a nontechnical manner.
We also reject Nieto’s attempt to distinguish Hernandez, on the ground that the
jury in Hernandez was not instructed with CALCRIM No. 570, which sets forth the
objective standard of provocation necessary to reduce murder to voluntary manslaughter.
As the court explained in Jones, CALCRIM No. 522 is not misleading when given along
with CALCRIM No. 570. (Jones, supra, 223 Cal.App.4th at p. 1001.) We agree with
Hernandez that provocation in CALCRIM No. 522 does not have a technical meaning
peculiar to the law (Hernandez, supra, 183 Cal.App.4th at p. 1334), even when given
along with CALCRIM No. 570, as it was here.
For all of these reasons, we conclude that the trial court did not err by failing to
clarify sua sponte the term “provocation” in CALCRIM No. 522, which has a common
meaning and not a technical meaning peculiar to the law.
C. Jury Question
Nieto argues that the trial court prejudicially erred by improperly answering a
question posed by the jury during deliberations. We conclude that the argument lacks
merit.
13
1. Relevant Proceedings
During deliberations, the jury sent the following note to the court: “Can we please
get clarification on Cal Crim 521 lines 3 through 5? [¶] Is it two separate theories?
[A]nd does it require both? [¶] [A]lso any clarification on the differences between 1st
degree [and] 2nd degree murder would be appreciated.” Outside the presence of the jury,
the trial judge explained to counsel that he interpreted the note as containing three
subparts and thus had drafted a written response to each of those subparts. The
prosecutor and defense counsel confirmed that they had read the court’s proposed
responses and that they agreed with the proposed answers. The court sent the written
response to the jury.
In response to the jury’s first question seeking clarification on lines three through
five of CALCRIM No. 521, the court wrote: “Based on your question, we cannot offer
clarification beyond what is contained in the 521 instruction itself.”2 Responding to the
second part of the jury’s question about the two theories of first degree murder, the court
wrote: “The defendant is being prosecuted under 2 theories of first degree murder. The
defendant cannot be found guilty of first degree murder unless all of you agree that the
people have proved all of the elements of one of those theories. However, you do not
need to all agree on the same theory. The theories are described, along with the elements
that must be proved beyond a reasonable doubt, in Calcrim 521.” In response to the
2 Lines three through five of CALCRIM No. 521 read: “The defendant has been prosecuted for first degree murder under two theories: (1) the murder was willful, deliberate, and premeditated and (2) the murder was committed while lying in wait or immediately thereafter.”
14
jury’s final inquiry seeking clarification on the differences between first and second
degree murder, the court wrote: “The elements of, and differences between, first and
second degree murder are contained in Calcrims 520 and 521. Based on your question,
no further clarification can be provided at this time.”
After the court sent the response to the jury, defense counsel asked the court to
modify its response to the jury’s question about the differences between first and second
degree murder. Defense counsel suggested that CALCRIM No. 522 also responded to
the jury’s inquiry in that CALCRIM No. 522 provides that provocation may affect the
degree of murder. Defense counsel requested that the response be amended to inform the
jury that CALCRIM Nos. 520, 521, and 522 all provided “guidance on the difference
between first and second degree murder.” The court denied the request, explaining that
CALCRIM No. 522 was “beyond the purview of their question.” The judge expressed
concern that the suggested response might draw the jury’s attention “to an area where I
don’t know that their original question pondered.” The court expressly left open the
possibility of reconsidering the issue if the jury requested further clarification.
2. Standard of Review
Section 1138 provides, in pertinent part: “After the jury have retired for
deliberation, . . . 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.”
15
Section 1138 “imposes on the trial court a mandatory ‘duty to clear up any
instructional confusion expressed by the jury’” during deliberations. (People v. Lua
(2017) 10 Cal.App.5th 1004, 1016 (Lua).) “This does not mean the court must always
elaborate on the 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.” (People v.
Beardslee (1991) 53 Cal.3d 68, 97.) “‘When a question shows the jury has focused on a
particular issue, or is leaning in a certain direction, the court must not appear to be an
advocate, either endorsing or redirecting the jury’s inclination.’” (People v. Montero
(2007) 155 Cal.App.4th 1170, 1180 (Montero).) We apply “the abuse of discretion
standard of review to any decision by a trial court to instruct, or not to instruct, in its
exercise of its supervision over a deliberating jury.” (People v. Waidla (2000) 22 Cal.4th
690, 745-746; Lua, supra, at p. 1017.)
3. Analysis
As the People correctly observe, defense counsel expressly agreed to the court’s
response to the jury about the distinction between first and second degree murder. In
general “[w]hen the trial court responds to a question from a deliberating jury with a
generally correct and pertinent statement of the law, a party who believes the court’s
response should be modified or clarified must make a contemporaneous request to that
effect; failure to object to the trial court’s wording or to request clarification results in
forfeiture of the claim on appeal.” (People v. Dykes (2009) 46 Cal.4th 731, 802; People
16
v. Salazar (2016) 63 Cal.4th 214, 248; People v. Debose (2014) 59 Cal.4th 177, 207.)
Here, counsel initially agreed to the court’s response but soon thereafter requested that
the court modify its response. We need not decide whether the forfeiture rule applies in
these circumstances because we conclude that the trial court did not err.
The trial court did not abuse its discretion by refusing defense counsel’s request to
inform the jury that CALCRIM No. 522 provided additional guidance concerning the
distinction between first and second degree murder. The court answered the jury’s
question seeking “any clarification” on the differences between the degrees of murder by
directing the jury to the instructions that set forth the elements of first and second degree
murder. Nieto does not contend that those instructions were incorrect or incomplete
statements of the law. Moreover, nothing in the court’s answer precluded the jury from
considering the evidence of provocation in its continued deliberations.
The jury did not articulate any confusion about provocation as it related to murder
or otherwise, or about the distinction between manslaughter and murder. It was
reasonable under the circumstances for the court to conclude that directing the jury to the
provocation instruction might confuse the jury by unduly emphasizing the role of
provocation and possibly directing the jury to consider provocation in the context of
voluntary manslaughter. (See People v. Davis (1995) 10 Cal.4th 463, 522 [court
reasonably declined to instruct further on an issue about which the jury did not express
confusion].) The risk of confusing the jury was particularly high because defense counsel
never argued that Nieto was guilty of only second degree murder because he was
17
provoked. Rather, counsel argued that Nieto was guilty of only voluntary manslaughter
because he was provoked, a topic also addressed by CALCRIM No. 522. By directing
the jury to CALCRIM Nos. 520 and 521, the court’s answer responded directly to the
jury’s question by focusing the jury on the different elements necessary to convict Nieto
of first degree or second degree murder without improperly “‘either endorsing or
redirecting the jury’s inclination.’” (Montero, supra, 155 Cal.App.4th at p. 1180.)
Under these circumstances, we conclude that the trial court’s response to the jury’s
question seeking clarification on the degrees of murder adequately addressed the jury’s
question and was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J.
McKINSTER J.
18
AI Brief
AI-generated · verify before citing
Holding. The trial court did not err in its jury instructions regarding provocation for second degree murder, nor did it abuse its discretion in its response to the jury's request for clarification on the degrees of murder.
Issues
Whether the trial court had a sua sponte duty to define 'provocation' in the context of second degree murder instructions.
Whether the trial court abused its discretion in its response to the jury's request for clarification regarding the distinction between first and second degree murder.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“CALCRIM No. 522 accurately describes the law as it pertains to provocation for second degree murder and is not misleading.”
“The trial court did not abuse its discretion by refusing defense counsel’s request to inform the jury that CALCRIM No. 522 provided additional guidance concerning the distinction between first and second degree murder.”