Filed 6/21/23 P. v. Ambriz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN PABLO GONZALEZ AMBRIZ,

Defendant and Appellant.

F084419

(Kern Super. Ct. No. BF180782A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Judith K. 

Dulcich, Judge.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. 

Martinez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Defendant and appellant Juan Pablo Gonzalez Ambriz (defendant) appeals his 

convictions for first degree murder, attempted murder, and assorted other crimes related 

to firing an assault rifle at a moving vehicle. Defendant asserts the trial court erroneously 

failed to give instructions on self-defense and imperfect self-defense. We agree with the 

trial court and find no error in its decision not to instruct on self-defense or imperfect 

self-defense.

Further, defendant claims the instructions on homicide given in this case – which 

were standard CALCRIM instructions – created an erroneous impression that provocation 

must be judged solely objectively for all parts of the instructions. Defendant claims this 

misstates the law. Defendant failed to object to these instructions at trial, and we 

therefore find this issue forfeited. Even if no forfeiture had occurred, we would not find 

error in these standard instructions.

Finding no error, we affirm. 

PROCEDURAL SUMMARY

On June 25, 2020, the Kern County District Attorney filed an information 

charging defendant with the first degree murder of Anthony Moreno (Pen. Code, § 187, 

subd. (a);1 count 1); three counts of attempted murder (§§ 664, 187, subd. (a); counts 2, 3, 

and 4); three counts of assault with a deadly weapon (§ 245, subd. (a)(3); counts 5, 6, and 

7); one count of maliciously and willfully discharging a firearm at an occupied motor 

vehicle (§ 246; count 8); one count of being a felon in possession of a firearm (§ 29800, 

subd. (a)(1); count 9); one count of being a felon in possession of ammunition (§ 30305, 

subd. (a)(1); count 10); one count of possession of an assault weapon (§ 30605; 

count 11); one count of receiving a large capacity magazine (§ 32310; count 12); and one 

count of altering, removing, or obliterating a firearm’s identification marks (§ 23900; 

count 13). The information alleged a firearm enhancement pursuant to section 12022.53 

1 All further statutory references are to the Penal Code except as otherwise noted.
3.

to counts 1, 2, 3, 4, and 8, and an assault weapon enhancement pursuant to 

section 12022.5(b) to counts 5, 6, and 7.

On April 20, 2022, a jury found defendant guilty of each of the charged crimes, 

except count 13, on which it returned a verdict of not guilty. The jury also found true the 

firearm enhancement alleged pursuant to section 12022.53 in connection with counts 1, 2, 

3, 4, and 8, and the assault weapon enhancement alleged pursuant to section 12022.5 in 

connection with counts 5, 6, and 7.

The trial court sentenced defendant on May 18, 2022 to an aggregate term of 

50 years to life plus 60 years in prison as follows: on count 1, 25 years to life, plus a 

term of 25 years to life pursuant to section 12022.54, subdivision (d); on each of 

counts 2, 3, and 4, to life with a minimum parole eligibility of seven years, plus a term of 

20 years pursuant to section 12022.5, subdivision (3)(c); on each of counts 5, 6, and 7, 

eight years (the middle term), plus six years pursuant to section 12022.5, subdivision (b); 

on count 8, five years, plus 25 years to life, pursuant to section 12022.53, subdivision (d); 

and on each of counts 9, 10, 11, and 12, two years (the middle term). The sentences on 

counts 5 through 11 were stayed pursuant to section 654. The sentences on counts 1 

through 4 were imposed consecutively. The sentence on count 12 was imposed 

concurrently. 

Defendant timely filed a notice of appeal on May 25, 2022.

FACTUAL SUMMARY

On the afternoon of April 26, 2020, two brothers, Angel and Anthony,2 were 

washing their mother’s car outside of their home on the outskirts of Bakersfield. They 

noticed defendant driving a car recklessly past the house at a high rate of speed, peeling 

its tires in the street, and doing donuts, before racing back past the house. Angel testified 

his young cousins were playing in the front of the house, and Anthony ran out to try to 

2 Since all victims in this case share the same last name, they will be referred to by their 

first names for clarity’s sake.
4.

get the driver’s attention, without success. The next time the driver sped past, Anthony 

threw a water bottle at the car, although the driver still did not stop the vehicle. Since the 

driver did not stop and was continuing to speed past the house, Angel and Anthony 

decided to follow the car in Anthony’s truck. Their cousin Cesar, who happened to be 

driving down the road, arrived at the front of the house at the same time Angel and 

Anthony were leaving, and followed the brothers in a separate car as well. However, the 

teenagers lost sight of the car they were pursuing and turned around and returned to their 

house.

Almost as soon as the trio arrived back at their house, the same car – which was 

ultimately revealed to be defendant’s car – sped past their house again at a high rate of 

speed. Anthony, Angel, and Cesar again left to pursue defendant’s car. As they were 

leaving, their uncle Jose was pulling up to the property. Jose followed the two cars 

separately in a third car. This time, the victims were able to follow defendant to his 

house a few miles away.

Upon arriving at defendant’s house, Jose, Cesar, and Anthony got out of their cars. 

The parties engaged in a verbal altercation outside of defendant’s house, with Jose, Cesar, 

and Anthony standing on the outside of a chain link fence and defendant standing in the 

yard inside of the chain link fence. While several video surveillance cameras played at 

trial both showed defendant speeding past the victims’ house, and showed the altercation 

in front of defendant’s house, none of the videos contained audio. Jose testified he asked 

defendant why he was driving so recklessly and told him there were children at their 

house he might be endangering. Defendant responded with numerous expletives and told 

Jose he did not care about him or his children and would drive however he wanted. The 

conversation escalated at this point, and both sides challenged each other to fight, with 

defendant telling Jose, Cesar, and Anthony to come inside of the gate to fight him, and 

Jose, Cesar, and Anthony telling defendant to come out into the street if he wanted to 
5.

fight them.3 Defendant asked Jose and the others if they were there to jump him, and 

Jose replied they were not, but they wanted him to stop driving so recklessly near their 

house. Defendant continued to make obscene gestures, and curse and yell at Jose and 

Cesar, who yelled back at defendant, before returning to their cars and leaving. Neither 

defendant nor any of the victims displayed any weapons, touched one another, or 

threatened to use weapons against each other during this verbal altercation. While a short 

chain link fence separated them, the front gate was hanging open a few feet away. No 

one attempted to pass through the open gate.

Jose, Cesar, Anthony, and Angel returned to the family’s property and went to the 

rear of the property, where there was a pool and additional dwelling units, to spend time 

with the rest of their family. However, a short while later, defendant again drove past the 

house at a high rate of speed. Unbeknownst to the victims, defendant had an AR-15-style 

assault rifle in his car with him at that time, which the prosecutor characterized in his 

closing as defendant “gunning for” and “trying to find” the victims. Defendant then 

returned to his house. Jose, Cesar, Anthony, and Angel drove back to defendant’s house, 

this time all in Jose’s vehicle. The group pulled up next to defendant’s car, which was 

parked in front of the house. Defendant was sitting in a lawn chair in the yard, on the 

opposite side of the car from the group. Cesar briefly exited the car and popped the tires 

on defendant’s car with a pocketknife. Cesar re-entered the car, and the group drove 

away. This time, Jose’s car was stopped for only a matter of seconds.

Because defendant lived on a dead-end street, the group was forced to turn around 

and drive back past defendant’s house in order to exit the neighborhood. After turning 

around, the group noticed defendant standing in his front yard holding an assault rifle as 

they drove past the house. Everyone ducked, and witnesses testified they heard between 

two and four shots fired by defendant at the car as they drove past. One of the bullets 

entered the rear of Jose’s vehicle and struck Anthony in the back. Jose drove 

3 Angel testified that he remained with Anthony’s truck.
6.

immediately to the Kern Medical Center, where Anthony died later that day from the 

gunshot wound he sustained.

Defendant acknowledged to officers who arrived a short while later that he had 

fired a weapon, told the officers it was his weapon, and allowed the officers to search his 

property, where an assault rifle was located. The rifle had an extended magazine, with a 

bullet in the chamber. Several shell casings were found on the ground outside 

defendant’s residence. Defendant did not contest that he shot Anthony or fired at the 

vehicle.

DISCUSSION

Both of defendant’s arguments relate to how the jury was instructed in this case. 

The first concerns whether instructions that were not given should have been given, 

whereas the second contends the instructions misstate the law. Neither claim has merit.

“ ‘ “In determining whether error has been committed in giving or not giving jury 

instructions, we must consider the instructions as a whole ... [and] assume that the jurors 

are intelligent persons and capable of understanding and correlating all jury instructions 

which are given.” [Citation.]’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) 

A trial court has a duty to instruct on a lesser included offense or an affirmative defense4

“only when there is substantial evidence that the defendant killed in unreasonable selfdefense, not when the evidence is ‘minimal and insubstantial.’ ” (People v. Barton, 

4 Defendant objects to the trial court’s failure to instruct on both self-defense and 

imperfect self-defense. Some confusion often arises with these terms. (See People v. Barton

(1995) 12 Cal.4th 186, 199–201.) “Self-defense” is an affirmative defense on which the 

defendant bears the burden of proof at trial. (Ibid.) “Imperfect self-defense” – also sometimes 

called “unreasonable self-defense” – is “not a true defense; rather, it is a shorthand description of 

one form of voluntary manslaughter. And voluntary manslaughter, whether it arises from 

unreasonable self-defense or from a killing during a sudden quarrel or heat of passion, is not a 

defense but a crime; more precisely, it is a lesser offense included in the crime of murder.” (Id.

at pp. 200–201.) Regardless, the duty to instruct is the same, and a trial court need only instruct 

on either when there is substantial evidence to support it. (See People v. Simon (2016) 1 Cal.5th 

98, 132; People v. Boyer (2006) 38 Cal.4th 412, 469; In re Christian S., supra, 7 Cal.4th at 

p. 783; People v. Aris (1989) 215 Cal.App.3d 1178, 1192.)
7.

supra, 12 Cal.4th at p. 201, fn. omitted; see also In re Christian S. (1994) 7 Cal.4th 768, 

783.) “Substantial evidence is ... evidence that a reasonable jury could find persuasive.” 

(People v. Barton, at p. 201, fn. 8.)

“We determine whether a jury instruction correctly states the law under the 

independent or de novo standard of review.” (People v. Ramos, supra, 163 Cal.App.4th 

at p. 1088.) “Instructions should be interpreted, if possible, so as to support the judgment 

rather than defeat it if they are reasonably susceptible to such interpretation.” (People v. 

Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.) “In reviewing a claim that the court’s 

instructions were incorrect or misleading, we inquire whether there is a reasonable 

likelihood the jury understood the instructions as asserted by the defendant.” (People v. 

Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).) 

I. The Trial Court Did Not Err in Refusing Instructions on Self-Defense or 

Imperfect Self-Defense

Defendant argues the trial court failed to give requested instructions on principles 

of self-defense and imperfect self-defense. However, there simply was no evidence from 

which a reasonable jury could find either a self-defense or imperfect self-defense 

argument persuasive. Therefore, the trial court appropriately refused these proposed 

instructions.

Both self-defense and imperfect self-defense are theories of defense in a homicide 

case which require the defendant to have been in fear of imminent great bodily injury or 

death. (People v. Nguyen (2015) 61 Cal.4th 1015, 1048–1049; In re Christian S., supra, 

7 Cal.4th at p. 771.) “The sole difference between true self-defense and ‘unreasonable 

self-defense’ is that the former applies only when the defendant acts in response to 

circumstances that cause the defendant to fear, and would lead a reasonable person to 

fear, the imminent infliction of death or great bodily injury (§§ 197, 198); unreasonable 

self-defense, on the other hand, does not require the defendant’s fear to be reasonable.” 

(People v. Barton, supra, 12 Cal.4th at pp. 199–200, quoting In re Christian S., supra,

7 Cal.4th at p. 773.) Regardless of reasonableness, the defendant must show they 
8.

actually experienced a subjective fear of imminent great bodily injury or death. (See 

People v. Battle (2011) 198 Cal.App.4th 50, 72–73.) “ ‘A bare fear is not enough; “the 

circumstances must be sufficient to excite the fears of a reasonable person, and the party 

killing must have acted under the influence of such fears alone.” ’ ” (People v. Trevino

(1988) 200 Cal.App.3d 874, 878–879; see also § 198; CALCRIM 505.) “The danger 

must be imminent; mere fear that it will become imminent is not enough.” (People v. 

Lopez (2011) 199 Cal.App.4th 1297, 1305; see also CALCRIM 505.)

As this court has noted previously, the relevant law is settled. “For either perfect 

or imperfect self-defense, the defendant’s fear must be of imminent harm.” (People v. 

Lopez, supra, 199 Cal.App.4th at p. 1305.) “ ‘Fear of future harm – no matter how great 

the fear and no matter how great the likelihood of the harm – will not suffice. The 

defendant’s fear must be of imminent danger to life or great bodily injury.’ ” (Id. at 

pp. 1305–1306.)

In this case, there simply was no evidence which a reasonable jury could find 

persuasive to believe there was an imminent danger to defendant. The defense presented 

no witnesses who could provide direct or circumstantial evidence of defendant’s state of 

mind and beliefs during these encounters. Instead, defendant relied entirely on 

circumstantial evidence from the prosecution’s case in chief to argue he was actually 

afraid of imminent bodily injury, which precipitated his shooting of the victims. The 

evidence in this case showed that, when the victims arrived at defendant’s house and 

asked him to stop driving so recklessly through their neighborhood, he responded in an 

immediately hostile manner, by yelling and cursing at the victims. The two sides 

engaged in an animated, verbal altercation, which included mutual challenges to fight 

from both sides. While the video contains no audio, defendant’s body posture and hand 

motions during this argument were aggressive, not fearful. Despite the clearly emotional 

exchange, there is no evidence that any of the victims attempted to actually engage in any 

physical altercation, displayed any weapons, threatened to use weapons of any kind, or 
9.

tried to walk through the gate in the fence separating them, which was hanging open only 

a few feet away. After a short while of this verbal exchange, the victims left.

The shooting happened almost a half hour later. Defendant had, in the meantime, 

armed himself with an assault rifle, which he took with him in his car as he left to repeat 

his behavior of driving recklessly and at high rates of speed through the neighborhood. 

After another brief trip, he returned home, where he sat outside of his house with the 

rifle. The undisputed evidence, including video evidence, shows the victims’ car pulled 

up next to defendant’s car for a matter of seconds, during which time Cesar slashed

defendant’s tires. There was no evidence of any exchange or interaction between the 

victims and defendant this time, although it appears defendant saw the victims do 

something to his car. The victims then immediately drove away but were forced to turn 

around and drive back past defendant’s house. Defendant would have known the victims 

were required to turn around, as they could not exit his dead-end street any other way. 

The surveillance videos depict defendant acting aggressively, by walking up to the fence 

with his rifle and firing as the victims’ car speeds past and continuing to walk around 

outside of his house thereafter.

The defense presented no witnesses who could provide direct or circumstantial 

evidence of defendant’s state of mind and beliefs during these encounters. Instead, 

defendant relied entirely on circumstantial evidence from the prosecution’s case in chief 

to argue he was actually afraid of imminent bodily injury, which precipitated his shooting 

of the victims. However, nothing about the evidence presented by the prosecution 

suggested defendant was, in fact, in fear of imminent bodily injury or death. The 

evidence consistently depicted defendant as aggressive and hostile, from his very first 

interaction with victims. The verbal altercation with the victims, which can be seen but 

not heard on the video evidence in this case, does not support a conclusion that defendant 

was afraid, but rather that he was angry, hostile, and aggressive. Further, there was a 

significant cooling off period between this verbal altercation and the shooting. The 
10.

cooling off period only ended because defendant, having armed himself, resumed 

engaging in the exact same behavior that had initiated the verbal conflict in the first 

place: namely, speeding and driving recklessly around the neighborhood. None of this 

indicates defendant was afraid of the victims.

When the victims again arrived back at his house, there is no evidence of any 

threat to defendant, nor even any engagement with him. The victims slashed the tires on 

defendant’s vehicle and immediately left, within a matter of seconds. There was no 

evidence of threats being exchanged or weapons being displayed. In fact, there was no 

evidence of any interaction at all. This too does not bolster defendant’s claim that he was 

afraid of imminent bodily injury or death. Nor does his behavior after the victims slashed 

his tires. There is no evidence defendant attempted to seek shelter or engaged in any 

other behavior suggesting he was afraid, rather than aggressive. Defendant did not 

attempt go inside of or behind his house. He did not hide. In fact, the evidence shows 

defendant advanced toward the road and fired his weapon at the victims’ car. This is 

despite there being no evidence from which defendant could conclude the victims had a 

firearm or any other weapon capable of harming him from a distance as they drove back 

past his house. There was no evidence that he had seen them brandish a firearm, and 

there was no evidence they threatened to use a gun, told defendant they had a gun, or 

even hinted that they would harm him with a weapon. Further, as the trial court 

observed, defendant had lived on that street for more than a year, and thus knew the 

victims would be turning around to drive past his house again, as there was no other way 

out of the street.

In sum, the evidence does not provide a sufficient factual basis to conclude 

defendant was, in fact, afraid of an imminent danger of great bodily injury or death. 

Absent this, there was no cause for the jury to decide whether that fear, or the amount of 

force used in response to it, was reasonable. The trial court did not err in refusing the 

self-defense instructions. 
11.

Even Assuming a Self-Defense Instruction Could Have Been Appropriately 

Given, Any Error was Harmless 

Even if we assumed error in failing to instruct here, any error was harmless. It is 

well-established that errors in instructing the jury are susceptible to harmless error 

review. (See People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. 

Sengpadychith (2001) 26 Cal.4th 316, 327; People v. Peau (2015) 236 Cal.App.4th 823, 

829.) This is also true for errors predicated on federal due process violations, not merely 

those predicated on errors of state law. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 

278–279 (Sullivan); Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

Even assuming there was an instructional error of such sufficient magnitude to 

conclude a violation of federal due process occurred, reversal is generally not automatic.

5

 

(Sullivan, supra, 508 U.S. at p. 279 [noting “most constitutional errors have been held 

amenable to harmless-error analysis”].) Under Chapman, “before a federal constitutional 

error can be held harmless, the court must be able to declare a belief that it was harmless 

beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.) The question “is not 

what effect the constitutional error might generally be expected to have upon a 

reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” 

(Sullivan, at p. 279.) “The inquiry, in other words, is not whether, in a trial that occurred 

without the error, a guilty verdict would surely have been rendered, but whether the 

guilty verdict actually rendered in this trial was surely unattributable to the error.” (Ibid.)

Even if the jury had been instructed on self-defense and imperfect self-defense, we 

find beyond a reasonable doubt this jury would have convicted defendant of first degree 

murder. Notably, the jury was still given the option of convicting defendant of the lesserincluded offenses of second degree murder and voluntary manslaughter. This is because 

5 There are a few types of error, commonly referred to as “structural error,” for which 

harmless-error review does not exist. (See, e.g., Arizona v. Fulminante (1991) 499 U.S. 279, 

309–310 [explaining structural error exists where “[t]he entire conduct of the trial from 

beginning to end is obviously affected,” such as where a criminal defendant is wholly denied 

counsel, or the trial precedes before a biased judge].) Defendant does not contend structural 

error occurred here.
12.

the trial court did give instructions on provocation and heat of passion, which advised the 

jury these different defenses would warrant rejecting first degree murder and instead 

finding defendant guilty of second degree murder or voluntary manslaughter.6 There was 

far more evidence from which a jury could conclude defendant acted in the heat of 

passion: there was video evidence depicting a heated verbal exchange between defendant 

and the victims, and video evidence and testimony admitting the victims slashed the tires 

on defendant’s car. However, the jury rejected these arguments, and convicted defendant 

of first degree murder. There is no reason to believe this jury would have found 

persuasive a self-defense argument, of which there was no evidence, when it also rejected 

a heat of passion argument, for which there was significant evidence.

We are satisfied beyond a reasonable doubt that, even if error existed in failing to 

instruct the jury in relation to self-defense, it was harmless.

II. Any Claim that the Trial Court Erred by Using the Pattern Criminal 

Instructions is Forfeited, and Even if Considered, is Without Merit

Defendant also asserts the instructions on provocation failed to appropriately 

instruct the jury, because there were actually two different standards of provocation at 

play: the provocation necessary to reduce first degree murder to second degree murder, 

which is a subjective analysis, and the provocation necessary to reduce murder to 

voluntary manslaughter, which is an objective analysis. We conclude this issue has been 

forfeited by defendant’s failure to object and is without merit in any case.

This Argument is Forfeited by Defendant’s Failure to Object

Defendant acknowledges he did not object to the instructions on provocation given

at trial and seemingly concedes that, typically, this would forfeit any claim on appeal. 

(People v. Hudson (2006) 38 Cal.4th 1002, 1011–1012 [“ ‘Generally, a party may not 

complain on appeal that an instruction correct in law and responsive to the evidence was 

6 Similar instructions were given on the attempted murder counts, instructing the jury it 

could find defendant guilty of attempted voluntary manslaughter if the crime occurred in the heat 

of passion.
13.

too general or incomplete unless the party has requested appropriate clarifying or 

amplifying language’ ”].) However, defendant argues no objection was required, because 

the jury instructions contain a misstatement of law, which violates due process and 

requires no objection to preserve it for appellate review. (Id. at p. 1012 [“But that rule 

does not apply when ... the trial court gives an instruction that is an incorrect statement 

of the law”].)

The problem with defendant’s argument is the trial court did not give an 

instruction that was an incorrect statement of the law. We briefly summarize the 

applicable law. Murder is an unlawful killing with malice aforethought. (§ 187, 

subd. (a).) First degree murder is murder, plus one of several statutory aggravating 

factors, including a “willful, deliberate, and premeditated killing,” as applicable to this 

case. (§ 189, subd. (a).) “All other kinds of murders are of the second degree.” (§ 189, 

subd. (b).) Malice may be express or implied. (§ 188; People v. Chun (2009) 45 Cal.4th 

1172, 1181.) Premeditation and deliberation may be negated by the heat of passion 

arising from provocation, and this type of provocation may be used as a defense to a 

claim that a murder is of the first degree, rather than the second. (Hernandez, supra, 

183 Cal.App.4th at p. 1332.) If the provocation would not cause an average, reasonable 

person to “experience deadly passion,” but the jury is convinced it did, in fact, preclude 

the defendant from subjectively deliberating or premeditating, the defendant is guilty of 

second degree murder. (Ibid.) If the jury determines the provocation is sufficient to 

cause a reasonable person to react with deadly passion, the crime is appropriately reduced 

to voluntary manslaughter. (Ibid.)

The trial court here appropriately instructed the jury using the Judicial Council of 

California’s pattern instructions for murder (CALCRIM No. 520); first degree murder 

(CALCRIM No. 521); provocation’s effect on the degree of murder (CALCRIM 

No. 522); and a heat of passion argument’s reduction of murder to voluntary 

manslaughter as a lesser included offense (CALCRIM No. 570). The jury was told that, 
14.

to be guilty of murder, the defendant must have “caused the death of another person” – an 

issue never in dispute – and acted with malice aforethought. Further, the instructions 

advised the jury that, even if it found the defendant committed murder, it is murder “of 

the second degree, unless the People have proved beyond a reasonable doubt that it is 

murder of the first degree as defined in [CALCRIM] Instruction 521.” CALCRIM 

No. 521 confirmed to the jury the defendant would only be guilty of first degree murder 

if the jury found the People “have proved that he acted willfully, deliberately, and with 

premeditation.” While the length of time alone does not dictate whether a killing is 

premeditated and deliberate, the instructions advised, “a decision to kill made rashly, 

impulsively, or without careful consideration is not deliberate and premeditated.”

Next, the jury was told that “[p]rovocation 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.” The jury was also instructed to 

consider provocation in relation to both whether the crime was first or second degree 

murder, and whether the defendant committed murder or manslaughter. Finally, the 

instructions provided that 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.” This required that the defendant was provoked, and 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 a 

person of average disposition to act rashly and without due deliberation.”

Each of these instructions is a correct statement of law. Indeed, defendant does 

not assert otherwise. His argument is not that any particular instruction was incorrect, but 

rather the overall effect of the combination of certain instructions – each correct unto 

themselves – was to create an impression the same standard of provocation applied to 

both the distinction between first and second degree murder, and between murder and 

manslaughter. Therefore, he points to no instruction that was actually an incorrect 
15.

statement of law. Rather, defendant complains the trial court should have given 

additional or supplementary clarifying language to further delineate the distinction 

between the two. Since there was no incorrect statement of law, and what defendant 

actually complains of is the failure to give a clarifying instruction, he had an obligation to

request such an instruction. (People v. Hudson, supra, 38 Cal.4th at pp. 1011–1012; see 

also People v. Simon, supra, 1 Cal.5th at p. 143; People v. Gastelum (2020) 

45 Cal.App.5th 757, 770–771.) Having failed to do so, the claim is forfeited. 

Further, because there was no incorrect statement of law, defendant’s claim also 

lacks merit. Defendant argues the court specifically defined the term “provocation” to 

mean only objectively reasonable provocation, and therefore necessarily excluded 

subjective provocation. Defendant misunderstands both the instructions given and the 

law. The jury was first told that a “decision to kill made rashly, impulsively, or without 

careful consideration is not deliberate and premeditated.” The jury was next informed 

provocation is a relevant consideration for reducing murder from the first degree to the 

second degree, and from murder to manslaughter. It was only in the instruction 

discussing the reduction of murder to manslaughter, given after the instructions 

discussing the distinction between first and second degree murder, in which the court 

advised the provocation necessary to reduce murder to manslaughter must be objectively 

reasonable. This makes good sense: an objectively reasonable fear is only needed to 

reduce murder to manslaughter. It is not necessary to reduce first degree murder to 

second degree murder. If the same objective reasonableness standard was required for 

both the reduction from first to second degree murder, and from murder to manslaughter, 

there would be no reason to tell the jury that provocation was relevant to both. In that 

case, there would be no instance in which provocation would not reduce murder to 

manslaughter. A reasonable jury would understand that distinction, when reading the 

instructions as a whole, because it would not assume the court was giving redundant or 

unnecessary instructions. (Hernandez, supra, 183 Cal.App.4th at p. 1332.) Therefore, 
16.

any reasonable jury would understand that objective reasonableness applied solely to the 

distinction between murder and manslaughter and was not necessary to differentiate 

degrees of murder.

Indeed, the court in Hernandez reached essentially the same conclusion. There, 

the defendant complained CALCRIM No. 522 was “deficient because it fails to instruct 

the jury that provocation that is insufficient to reduce the crime to manslaughter may 

nevertheless be sufficient to reduce the crime from first degree to second degree murder.” 

(Hernandez, supra, 183 Cal.App.4th at p. 1335, fn. omitted.) The court concluded there 

was no reasonable likelihood the jurors failed to understand provocation was relevant to 

premeditation and deliberation as a means of separating first and second degree murder, 

and separately relevant as a means of separating murder from manslaughter. (Ibid.) The 

jury here was also told separately in the instruction on voluntary manslaughter that, in 

order to be manslaughter, the provocation must be such that an average person “would 

have reacted from passion rather than from judgment.” A reasonable jury would have 

understood this requirement to apply only to a reduction of murder to manslaughter, and 

not to whether the crime should be reduced from first to second degree murder, since 

such an instruction was not given in relation to the distinction between different degrees 

of murder.

Defendant argues the Hernandez court did not consider precisely the same issue, 

because it did not consider the relationship between CALCRIM No. 522 and CALCRIM 

No. 570. It appears to us there is no significant difference between what the Hernandez 

court considered, and the question now posed here. The appellant in Hernandez

specifically “assert[ed] that CALCRIM No. 522 is deficient because it fails to instruct the 

jury that provocation that is insufficient to reduce the crime to manslaughter may 

nevertheless be sufficient to reduce the crime from first degree to second degree murder.” 

(Hernandez, supra, 183 Cal.App.4th at p. 1335, fn. omitted.) Hernandez specifically 

rejected this. (Ibid.) That is appellant’s argument here, as well, phrased only slightly 
17.

differently: that different standards of provocation apply to the reduction between first 

and second degree murder, and between murder and manslaughter, and the jury 

instructions do not sufficiently elicit the difference, which may have resulted in jury 

confusion. However, even if Hernandez was distinguishable, “[w]e consider the 

instructions as a whole and assume the jurors are intelligent persons capable of 

understanding and correlating all the instructions.” (Id. at p. 1332.) A reasonable jury 

would not have been confused by the jury instructions given in this case, for the reasons 

described above.

DISPOSITION

The judgment is affirmed.

POOCHIGIAN, Acting P. J.

WE CONCUR:

FRANSON, J.

SNAUFFER, J.