Filed 7/31/13 P. v. Diaz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, Plaintiff and Respondent,

v. JOSEPH FELIX DIAZ, Defendant and Appellant. G046513 (Super. Ct. No. 10CF2797)

O P I N I O N

Appeal from a judgment of the Su perior Court of Orange County, Daniel Barrett McNerney, Judge. Affirmed. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garl and, Assistant Attorney Genera l, Lilia E. Garcia, Quisteen S. Shum and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
* * *2 I NTRODUCTION A jury convicted Joseph Felix Diaz of one count of first degree murder (Pen. Code, § 187, subd. (a)) and found that, in committing murder, he personally used a firearm ( id. , § 12022.5, subd. (a)) and discharged a firearm causing death ( id. , § 12022.53, subd. (d)). 1 The trial court sentenced Diaz to an aggregate term of 50 years to life in prison. In seeking reversal, Diaz argues (1) by failing to correct the prosecutor’s
misstatement about the law of self-defense, the trial cour t allowed the jury to be presented with an erroneous theory of guilt; (2) the trial court committed instructional error by giving CALCRIM No. 522 instead of CALJIC No. 8.73 and by failing to further define the word “provocation” in CALCRIM No . 522; and (3) to the extent his claims of instructional error were forfeited, his c ounsel was ineffective by failing to request
CALJIC No. 8.73 and a further de finition of “provocation.” We affirm. We reject Diaz’s argumen t the trial court presented the jury
with an erroneous theo ry of guilt. Although we conclu de Diaz forfeited his claims of instructional error, we find no ine ffective assistance of counsel.

F ACTS We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.) In the late afternoon of October 4, 2010, Faustino Armenta was driving a van through a residential area of southeast Sa nta Ana. Three passengers were inside the

1 The jury acquitted Diaz of street terrorism (Pen. Code, § 186.22, subd. (a)) and did not find he committed the murder fo r a criminal street gang purpos e or for the benefit of, at the direction of, or in association with a cr iminal street gang. This opinion therefore omits discussion of evidence relati ng to those charges and allegations.3 van with Armenta: Karla Vasquez, Irvins Ji menez, and “Porky.” Diaz was riding his bicycle along the same street as the van. One witness testified Diaz was riding his bicycle in the same direction as the van; an other witness testified Diaz was riding in the opposite direction. The people inside the van were yelli ng. As Diaz pedaled past the van, “minding his business,” someone from inside the van threw a bottle at him. The bottle missed Diaz, and he continued pedaling his bicy cle down the street. After Diaz rode past the van, Armenta made a left turn. The van hit the curb and stalled. Armenta and Porky, each holding a be er bottle, immediately got out of the van. Armenta chased Diaz, while Porky, walk ing at a fast pace, followed. Diaz, who had gotten off his bicycle, ran and took cover between a truck and some bushes. Armenta spotted Diaz and ran toward him. Diaz st epped out from his hiding place and chased Armenta down the street. Diaz was holding a gun. Armenta veered off toward the opposite corner of the street and tried to duck or get out of the way. At some point , Diaz and Armenta faced off and exchanged words. Diaz fired the gun at Armenta, who th rew the beer bottle at Diaz and fled. Diaz
chased Armenta until Armenta fell. Diaz stoo d over him and fired se veral shots in rapid succession. Diaz then placed the gun in the back of hi s pants and walked away.
Armenta stood and ran back to the van. He tried to start the engine but was too weak. The passengers removed Armenta from the van, laid him on the ground, and
called for an ambulance. Armenta died. About two hours after the shooting, O fficer David Rondou of the Santa Ana Police Department conducted a crime scene inve stigation. He established the time of the shooting as 5:17 p.m. He found blood on the outside of the va n on the driver’s side door jamb, broken beer bottles in th e street near the van’s rear bumper, and an unopened bottle of beer in a nearby gutter. Do wn the street, between 929 a nd 931 Oak Street, he found a bicycle and saw a car in a driveway. The car’s rear window was shot out.4 At the base of a tree in front of 93 1 Oak Street, Rondou found three bullet shell casings from a semiautoma tic handgun, and, 150 to 200 feet from there, found three more casings and a bullet slug. A trail of bl ood led back to the van. Rocky Edwards, a
forensic firearm and tool mark examiner fo r the Santa Ana Police Department, analyzed the shell casings and determined th ey were fired from the same gun. On the day after the killing, Dr. Anth ony Juguilon, a forensic pathologist, conducted an autopsy of Arme nta. Dr. Juguilon located three gunshot wounds, each one
with an entrance and co rresponding exit. He marked the three wounds as A, B, and C, although he could not determin e the sequence of gunshots.
Gunshot wound A was located on Arment a’s upper left arm. Dr. Juguilon described it as a superficial, nonlethal wound. Gunshot wound B was located on
Armenta’s back. The bullet entered Arme nta’s back from behind the chest cavity, lacerated the right lung and a major artery, and exited through the upper right chest. Dr. Juguilon testified gunshot w ound B, which travelled from back to front and upward and rightward, was a lethal injury and an in dependent cause of death. Gunshot wound C was located on the back of Armenta’s right th igh. The bullet ente red the back of the thigh, lacerated the femoral artery, and ex ited through the right groin. Dr. Juguilon testified gunshot wound C, which travelled b ack to front and upward and leftward, was a lethal injury and an inde pendent cause of death. Dr. Juguilon testified it was possibl e for someone who has sustained the type of injuries suffered by Armenta to wa lk a block before passi ng out from lack of blood. Dr. Juguilon testified Armenta’s o fficial cause of death was multiple gunshot wounds, specifically, wounds B and C.

D IAZ ’ S T ESTIMONY Diaz testified in his own defense. He te stified that in the late afternoon of October 4, 2010, he was relaxing with three other men in the front yard of a friend’s5 home. He heard what he thought were guns hots or shattering bo ttles and, looking down the street, saw a van make a U-turn. People in the van were shoutin g curses at Diaz and the others in the yard. Diaz’s friend did not want any trouble an d told everyone to leave. Diaz got on his bicycle and rode towa rd his girlfriend’s house. He was alone and carried a gun in his waistband fo r protection. The gun had a magazine of bullets, but none of the bullets was chambered. While Diaz had stopped to talk with some people he knew, the van drove past. The people inside the van said somethin g. The van made a U-turn. Diaz got back on his bicycle and rode away. As the van passed Diaz a second time, he thought he heard gunshots and a car window shatter. Diaz rode past the van. He looked back and saw it had stopped. He thought the people in the van were shooting at him so he got off his bicycle and took cover behind a truck. Armenta ran toward the place where Diaz was hiding. Diaz was scared and thought he wa s going to die. He did not know whether
Armenta was armed. When Armenta was about 15 feet away, Diaz stepped out from his hiding place and fired tw o or three times in his direction. After firing the shots, Diaz ran, leav ing his bicycle behind. Diaz claimed he was not chasing Armenta and did not know whether any of the gunshots had hit him. After running awhile, Diaz saw Armenta again. Diaz testified he did not know whether Armenta was coming toward him. Diaz did not see a weapon on Armenta. Diaz fired three more shots. Armenta fell, and Diaz quickly walked away. Diaz got rid of the gun along a bicycle tr ail and walked to a friend’s house. He was arrested three days later.
Diaz testified he believed he was faci ng a deadly encounter with Armenta and “[i]t was him or me.” On cross-ex amination, when confronted with the Dr. Juguilon’s testimony, Diaz denied shooti ng Armenta in the back. Diaz testified Armenta “kind of like f[e]ll” while being shot , and that could account for Dr. Juguilon’s
conclusion Armenta was shot in the back. Di az denied shooting Armenta after he fell.6 When asked whether he was trying to kill Ar menta with the first three gunshots, Diaz replied, “[y]es. For my own protection, yes.”

D ISCUSSION I.
The Trial Court Did Not P resent the Jury with an Erroneous Theory of Guilt. Diaz argues that, in closing argument, the prosecutor made an incorrect
statement about the law of self-defense. Diaz does not, however, argue prosecutorial misconduct; instead, he argues the trial cour t erred by not correcting the prosecutor’s error with clarifying jury instructions. He co ntends that the trial court, by not correcting the prosecutor’s mistake, allowed the jury to be presented with conflicting theories of guilt, one of which was erroneous. We reje ct this argument because (1) the prosecutor did not make an incorrect statement of the law; (2) Diaz did not object to the prosecutor’s statement; and (3) the trial court correctly instru cted the jury. Diaz challenges the following statemen t made by the prosecutor in closing argument: “The law says, again, he’s not requ ired to retreat. He doesn’t have to run away. If he’s facing deadly force, he doesn’t have to run away. But I go back to [CALCRIM No.] 3474. You d on’t get to pursue. You don’t get to pursue when you’re not looking at any sort of deadly force. An d he told you from the witness stand that he never saw a gun, a bottle, a knife, anything that could inflict great bodily injury or death on himself, but yet he chose to act.” Diaz’ s counsel did not object to this statement. Diaz asserts the prosecutor’s statement is an incorrect interpretation of
CALCRIM No. 3474. As read to the jury in this case, CAL CRIM No. 3474 stated: “The right to use force [in] self-d efense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, the right to use force ends.” The tr ial court also instructed the7 jury with CALCRIM No. 3470 (self-defense). As part of that instruction, the court told the jury: “A defendant is not required to re treat. He’s entitled to stand his ground and
defend himself and if reasona bly necessary to pursue the assailant until the danger of death or great bodily injury is passed. This is also true even if safety could have been achieved by retreating.” The prosecutor’s argument was cons istent with CALCRIM Nos. 3470 and
3474. 2 The prosecutor correctly argued that Di az was “not required to retreat” and “doesn’t have to run away” if he was facing deadly force. The prosecutor then argued Diaz did not have the right to pursue “when you’re not looking at any sort of deadly
force.” That statement is consistent with the part of CALCRM No. 3470, given by the court, stating a victim may pursue the assailan t only “until the danger of death or great bodily injury is passed.” The prosecutor then argued Diaz was not facing deadly force
because he testified he did not see Armenta carrying “a g un, a bottle, a knife, anything that could inflict great bodily injury or death. ” In so arguing, the prosecutor was properly discussing the evidence and the reasonable inferences to be drawn from it. ( People v.
Morales (2001) 25 Cal.4th 34, 44 ( Morales ) [“At closing argument a party is entitled
both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom”].) Because the prosecutor did not make an incorrect statement of the law, there was nothing for the trial court to correct or clarify, and the jury was not presented with inconsistent theories of guilt.
Reversal would not be warranted even assuming the prosecutor misstated
the law. “When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the c ourt’s attention by a timely objection. Otherwise no claim is preserved for appeal.” ( Morales , supra , 25

2 Diaz does not argue either CALCRIM No . 3474 or CALCRIM No. 3470 incorrectly states the law.8 Cal.4th at pp. 43-44.) Diaz voiced no objection to what he now contends was the prosecutor’s misstatement of th e law. He tries to avoid forfeiture of his claim by phrasing it as trial court error in failing to correct the prosecutor’s comments and permitting an erroneous legal theory to be presented to the jury. Morales forecloses that argument.
In Morales , supra , 25 Cal.4th at pages 37, 41, the defendant was convicted of possessing phencyclid ine (PCP). On appeal, the defe ndant asserted the prosecutor’s closing argument misled the jury about th e law governing PCP possession. ( Id. at pp. 37, 42, 47.) As in this case, the defendant ha d not objected at trial to the prosecutor’s comments. ( Id. at pp. 43-44.) Instead, relying on People v. Guiton (1993) 4 Cal.4th 1116 ( Guiton ) and People v. Green (1980) 27 Cal.3d 1 ( Green ), the defendant contended the prosecutor’s argument allowed the jury to be presented with an improper theory of guilt,
which was based on evidence th e defendant had PCP in his system at the time of his arrest. ( Morales , supra , at pp. 42-43, 46-47.) The California Supreme Court rejected the defendant’s argument. The court stated: “[T]he court did not present to the jury a case that was premised on a legally incorrect theory. The prosecutor arguably mi sstated some law, but such an error would merely amount to prosecutorial misconduct [cita tion] during argument, rather than trial and resolution of the case on an improper legal basis.” ( Morales , supra , 25 Cal.4th at p. 43.) The jury instructions accurately stated the law and were controlling. ( Id. at p. 48.) Guiton and Green were distinguishable because, in those cases, “the court presented the state’s case to the jury on an erroneous lega l theory or theories.” ( Morales , supra , at p. 43.) In Green , the jury instructions were “deficient” and in Guiton , “a theory unsupported by evidence was pr esented to the jury in the very trying of the case.” ( Morales , supra , at p. 43.) This case falls squarely within Morales . Here, the trial court did not present to the jury a case pr emised on a legally incorrect theory. Diaz does not contend9 the jury instructions were errone ous. As did the defendant in Morales , Diaz relies on
Guiton and Green , but those cases are inapplicab le for the reasons stated in Morales . At most, the error asserted by Di az amounts to “prosecutorial misconduct [citation] during argument,” not “trial and resolution of th e case on an improper legal basis.” ( Morales , supra , 25 Cal.4th at p. 43.)
II.
Diaz Forfeited His Claims of Instructional Error. Diaz argues the trial court erred by instructing the ju ry with CALCRIM
No. 522 instead of CALJIC No. 8.73 on the i ssue of provocation. He contends that CALCRIM No. 522, unlike CALJIC No. 8.73, failed to advise the jury it may consider provocation in determining whether the defenda nt acted with or without deliberation and premeditation. He also contends that CALC RIM No. 522 did not in form the jury that provocation included fearing for one’s life. The trial court instructed the jury with CALCRIM No. 522, as follows: “Provocation may reduce a murder from first degree to second degree murder and may reduce murder to manslaughter. The weight a nd significance of the provocation, if any, are for you to decide. [¶] If you concl ude the defendant committed murder but was provoked, consider the provocation in decidi ng whether the crime was first or second degree murder. Also, consider the provo cation in deciding whether the defendant
committed murder or manslaughter.” CALJIC No. 8.73, also concerning pr ovocation, states: “If the evidence establishes that there was prov ocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the prov ocation for the bearing it may have on
whether the defendant killed with or without deliberation and premeditation.”10 Diaz argues the trial court erred by giving CALCRIM No. 522 instead of CALJIC No. 8.73, for two reas ons. First, he argues, “[CALCRIM No. 522] did not inform the jury that provocation included [Diaz]’s fear for his life.” Di az states he is not challenging the trial court’s failure to specif ically define “provocation.” Instead, he argues, “the court’s definition of provocation was not sufficiently br oad to overcome the instruction[al] error of CALCRI M No. 522, based on the facts of this case.” Second, he argues CALCRIM No. 522 did not inform the ju ry that provocation “was relevant, not only in determining if the defendant committed murder versus manslaughter, but also in determining whether it negated [Diaz]’s ability to premeditate and deliberate so as to reduce a finding of first degree murd er to second degree murder.”
Diaz has forfeited his claims of instruc tional error. “Provocation,” as used in jury instructions, bears its common meaning and requires no further explanation in the absence of a request. ( People v. Cole (2004) 33 Cal.4th 1158, 12 17-1218.) Diaz did not object to CALCRIM No. 522 or as k that it be modified or amplified by defining the word “provocation.” ( People v. Souza (2012) 54 Cal.4th 90, 118 [“because the instructions as given were complete and because defendant did not ask the trial court to clarify or amplify them, defendant may not complain on appeal that the instructions were ambiguous or incomplete”].) CALJIC No. 8. 73 is a pinpoint instruction on a defense theory and therefore need not be given unless requested by defense counsel. ( People v.
Ward (2005) 36 Cal.4th 186, 214; People v. Mayfield (1997) 14 Cal.4th 668, 778.) Diaz did not request the trial court to give CALJIC No. 8.73.
III.
There Was No Ineffective Assistance of Counsel. Diaz argues his trial counsel was ineffe ctive for failing to request CALJIC No. 8.73 and by failing to request an amp lification of CALCRIM No. 522 to define “provocation.” To prevail on a claim of inef fective assistance of counsel, Diaz must show both (1) his atto rney’s representation was deficient in that it fell below an objective11 standard of reasonableness under prevailing pr ofessional standards; a nd (2) his attorney’s deficient representation subjected him to prejudice. ( Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a “reasonable probability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different.” ( Strickland v. Washington , supra , at p. 694.) A reasonable probability means a “probability sufficient to un dermine confidence in the outcome.” ( Ibid. ) We find no deficient repr esentation of counsel or prejudice from failure to request CALJIC No. 8.73. In addition to CALCRIM No. 522, the trial court gave
CALCRIM Nos. 520 and 521. The latter instru ction informed the jury that first degree murder requires that the defendant acted “w illfully, deliberately, and with premeditation”;
that deliberation means a decision to kill af ter the defendant “carefully weighed the considerations for and against (his/her) choice”; and that premeditation means the
defendant “decided to kill befo re completing the act[s] that caused death.” (CALCRIM No. 521.) CALCRIM No. 522 then informed th e jury: “Provocation may reduce a murder from first degree to second de gree murder and may reduce murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide.” Thus, although CALCRIM No. 522 does not expressly state that provocation may negate deliberation and premeditation, th e jurors would understand that to be the
case based on the instructions as a whole.
In People v. Hernandez (2010) 183 Cal.App.4th 1327 ( Hernandez ), the Court of Appeal also rejected a claim that CALCRIM No. 522 was in adequate because it does not expressly tell the jury that provocation is relevant to determining whether the defendant killed without premeditation and deliberation. The Hernandez court stated: “In [ People v. ] Rogers [(2006) 39 Cal.4th 826], the court evaluated the potential for error when the jury is instructed on provocation as it relates to voluntary manslaughter, but is not instructed on provocation as it relate s to second degree murder. [Citation.] The12 Rogers court concluded that the omission of a provocation instructi on for second degree murder is not misleading. The court reasoned th at ‘the jury is told that premeditation and deliberation is the factor distinguishing first and second degree murder’ and the manslaughter instruction ‘does not preclude the defense from arguing that provocation played a role in preventing the defendant fro m premeditating and deliberating; nor does it preclude the jury from giving weight to any evidence of provocation in determining whether premeditation existed.’ [C itation.] [¶] As reflected in Rogers , the fact that a trial court is not required to instruct on provocation for second degree murder at all supports that it is not misleading to instruct on provocation without explicitly stating that provocation can negate premedita tion and deliberation. Although CALCRIM No. 522 does not expressly state provocation is rele vant to the issues of premeditation and deliberation, when the instruc tions are read as a whole th ere is no reasonable likelihood the jury did not understand this concept. Based on CALCRIM No. 521, the jury was instructed that unless defendant acted with pr emeditation and deliberati on, he is guilty of second, not first, degree mu rder, and that a rash, impulsive decision to kill is not deliberate and premeditated. Based on CALCRI M No. 522, the jury was instructed that provocation may reduce the murder to second degree murder. [¶] In this context, provocation was not used in a technical sens e peculiar to the law, and we assume the jurors were aware of the common meaning of the term. [Citation.] . . . Considering CALCRIM Nos. 521 and 522 together, the jurors would have understood that provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.” ( Hernandez , supra , at pp. 1333-1334.)
The Hernandez court expressed satisfaction “that, even without express instruction, the jurors unde rstood that the existence of provocation can support the absence of premeditation and deliberation.” ( Hernandez , supra , 183 Cal.App.4th at p. 1334.) Thus, the trial court was not requir ed to amplify the instructions given. ( Ibid. )13 We agree with Hernandez . Because the jurors in th is case were instructed with CALCRIM Nos. 521 and 522, they unde rstood that provocatio n could support the absence of premeditation and deliberation an d thereby reduce first degree murder to second degree murder. Thus, trial counsel’s performance was not deficient for failing to request CALJIC No. 8.73, and, if deficient, did not result in prejudice. Diaz tries to distinguish Hernandez on the ground the nature of the provocation in this case was different: In Hernandez , the provocation was heat of passion, while here, Diaz argues, he was acti ng in self-defense. This distinction is without a difference because, as we shall explain, the instru ctions permitted the jury to decide whether Diaz was provoked and acted out of fear for his life. In any case,
CALJIC No. 8.73 would not have a ddressed Diaz’s distinction of Hernandez because CALJIC No. 8.73, as CALCRIM No. 522, uses the term “provocation” without further
definition. We also find no deficient representa tion of counsel or prejudice from the failure to request an amplification or a modification of CALCRIM No. 522 on the meaning of “provocation.” Absent a request for an amplification or modification, the word “provocation” would have its usual, common meaning. ( People v. Cole , supra , 33 Cal.4th at pp. 1217-1218.) In People v. Ward , supra , 36 Cal.4th at page 215, the court stated, “[t]he evidentiary premise of a prov ocation defense is the defendant’s emotional reaction to the conduct of another, which emo tion may negate a requis ite mental state.”
Provocation has been defined to mean “somet hing that provokes, arouses, or stimulates” (Merriam-Webster’s Collegiate Dict. (11th ed. 2004) p. 1002.); provoke means “to arouse to a feeling or action[;] . . . to incite to anger” ( Ibid .). In light of this common meaning of prov ocation, the jury could consider the
evidence and decide whether Armenta’s conduct prompted or aroused an emotional response in Diaz—i.e., fearing loss of his lif e—that negated the mental state necessary for murder (malice aforethought) or the ment al state necessary for first degree murder14 (deliberation and premeditation). “Conside ring CALCRIM Nos. 521 and 522 together, the jurors would have understo od that provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.” ( Hernandez , supra , 183 Cal.App.4th at p. 1334.) Further defining “provocation” in CALCRIM No. 522 to expressly include th e emotion of fearing for one’s life was unnecessary and, in all reasonable probability , would not have chan ged the outcome of
trial. In addition, the jury was instructed on voluntary manslaughter on sudden quarrel or heat of passion (CALCRIM No. 570), imperfect self-defense (CALCRIM No. 571), and self-defense (CALCRIM Nos. 505 and 3474). CALCRIM No. 570 permitted the jury to consider whether Di az’s response to provocation was reasonable and, if so, to find him guilty of voluntary manslaughter. 3 CALCRIM Nos. 505, 571, and 3474 permitted the jury to acquit Diaz if it c oncluded he acted in se lf-defense with the
reasonable belief that the need to use deadly force was r easonably necessary. CALCRIM No. 571 permitted the jury to find Diaz guilty of voluntary manslaughter rather than murder if the jury concluded (1) Diaz actually believed he wa s imminent danger of being killed or suffering great bodily injury and (2 ) he actually believed the immediate use of deadly force was neces sary to defend against the danger, but (3) at least one of those beliefs was unreasonable. Thus, contrary to Di az’s assertion, the jury was instructed to
consider whether Diaz killed Armenta out of the reasonable or unreasonable belief Diaz’s life was in danger and to render the appropriate verdict.

3 CALCRIM No. 570 (voluntar y manslaughter on sudden qua rrel or heat of passion), states in part: “The defendant killed someon e because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoke d; [¶] 2. As a result of the provocation, the defendant acted rashly an d under the influence of inte nse emotion that obscured (his/her) reasoning or judgmen t; [¶] AND [¶] 3. The pr ovocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.”15 D ISPOSITION The judgment is affirmed.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

RYLAARSDAM, J.