Filed 10/3/24 P. v. Moore CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DARCELL MOORE,

Defendant and Appellant.

D082786

(Super. Ct. No. SCD285976)

APPEAL from a judgment of the Superior Court of San Diego County, 

Jeffrey F. Fraser, Judge. Affirmed.

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, Charles C. Ragland, Assistant Attorney General, 

A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys 

General, for Plaintiff and Respondent.
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MEMORANDUM OPINION1

After trial, a jury convicted Darcell Moore of first degree murder (Pen. 

Code, § 187, subd. (a)). On appeal, Moore contends the trial court erred by

failing to instruct the jury as to subjective provocation. We disagree and 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are largely undisputed. Moore and an associate, Willie Gray,

repeatedly stabbed Shawn Puzzo, a homeless man, while he was sleeping, 

leaving him mortally injured. 

Moore testified at trial that three days before the stabbing, he had 

awakened in the dark to see Puzzo standing very near him, looking at him 

with a blank stare. Moore “hopped up” and “got out of the way.” Puzzo then

backed up. That was the only interaction Moore ever had with Puzzo. Moore

testified that this incident scared him. Later, he stole a knife “to protect 

[himself] if anything happens.”

A few nights later, Moore and Gray saw Puzzo sleeping in the alcove of 

a business. Moore stabbed him twice. “I wasn’t thinking. I don’t know. I 

wasn’t even thinking. I just reacted. I snapped. I just went straight. I just 

did it.” “I was somewhere else . . . I wasn’t there.” Moore cut his finger while 

he was stabbing Puzzo, and the cut required stitches. Moore testified that he 

did not decide to stab Puzzo because of the earlier incident and had no other 

reason to stab him. Moore testified that Gray also stabbed Puzzo. “So after I 

did what I did, I stood up, and for some reason, I don’t know, I just went into 

a dizzy state.” He took gift cards out of Puzzo’s pockets but did not remove 

1 This case is appropriate for resolution by memorandum opinion 

because it raises “no substantial issues of law or fact.” (Cal. Stds. Jud.

Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847.)
3

cash that was in one of Puzzo’s pockets. Moore then hid the knife that he had 

used. On cross examination, he testified that he “probably” shook Puzzo 

awake before he stabbed him. He agreed that Puzzo had done absolutely 

nothing to deserve what he did to him. 

The court instructed the jury on first degree murder, second degree 

murder, voluntary manslaughter, and involuntary manslaughter. The jury 

was instructed that Moore “has been prosecuted for first degree murder 

under two theories: (1) the murder was willful, deliberate, and premeditated

and (2) felony murder.” 

During deliberations, the jury posed a question: “On the verdict form 

for Count 1 Murder in the 1st degree, if we have agreed on different theories 

do we have to put “not true” at the end of the page. We aren’t unanimous on 

which theory it is.” The court responded, “Please see CALCRIM 521. All of 

you do not have to agree on a theory of first degree murder (willful, 

deliberate, and premeditated or felony murder). If you have reached an 

agreement on count one, fill out the blank space for that verdict. If you 

cannot agree on willful, deliberate and premeditated, leave that blank.” 

The jury returned a guilty verdict on the charge of first degree murder, 

and found true the allegation that in the commission of the offense, Moore 

used a deadly weapon. However, it left blank the line on the verdict form

stating that the murder was willful, deliberate and premeditated. The jury 

also found Moore guilty of assault with a deadly weapon and robbery. The 

jury did not return verdicts as to second degree murder, voluntary 

manslaughter, involuntary manslaughter, or petty theft. 

DISCUSSION

Moore first argues that although not requested by trial counsel, the 

court had a sua sponte duty to give an instruction set forth in CALCRIM 
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5222 relating to the effect of provocation on the jury’s consideration of first 

degree murder because subjective provocation was a defense theory of the 

commission of the crime that was supported by the evidence. (See People v. 

Breverman (1998) 19 Cal.4th 142, 148–149.) Moore argues that the note sent 

by the jury during deliberation shows that the jury was not unanimous in its 

theory of first degree murder and that at least one juror relied on a malice 

murder theory, and therefore “there was a reasonable likelihood that a juror 

– or jurors – would have found appellant guilty of only second degree murder 

based on subjective provocation.” 

Moore concedes that the court held in People v. Rogers (2006) 39 

Cal.4th 826, 880 (Rogers), that CALJIC 8.73, the predecessor instruction to 

CALCRIM 522, was a pinpoint instruction, to be given upon request, and the 

court did not have a sua sponte duty to give the instruction. Moore 

distinguishes Rogers by noting that in Rogers, the jury had not been 

instructed that provocation had to be objectively reasonable, whereas in this 

2 CALCRIM 522 (“Provocation: Effect on Degree of Murder” provides in 

part:

“Provocation may reduce a murder from first degree to 

second degree [and may reduce a murder to manslaughter]. 

The weight and significance of the provocation, if any, are for 

you to decide.”
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case, provocation was explained only in CALCRIM 5703, which required that 

provocation had to be objectively reasonable (“provocation would have caused 

a person of average disposition to act rashly and without due deliberation”), 

and therefore the jury was not informed that it could consider subjective 

provocation in weighing the difference between first degree and second 

degree murder. 

We reject this effort to distinguish Rogers. In Rogers, as here, the 

defense argued that Rogers did not premeditate, but instead acted without 

thinking:

“Defendant’s own testimony provided sufficient evidence 

from which the jury could conclude the killing was not 

premeditated. Defendant testified that when he killed 

Clark, he was not making any calculated judgment or 

weighing considerations for and against killing her; rather 

he felt only fear and pulled the trigger without thinking. 

Defendant’s experts likewise testified defendant did not 

premeditate or deliberate in the killing of Clark. . . . Dr. 

Glaser believed that in this emotional state, defendant was 

incapable of premeditating and deliberating. Dr. Bird 

agreed the killing of Clark was an impulsive, emotional act 

3 CALCRIM 570 (“Voluntary Manslaughter: Heat of Passion” provides in 

pertinent part:

“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 the provocation, the defendant acted rashly 

and under the influence of intense emotion that obscured 

(his/her) 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.”
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of passion and fear, and opined there was no ‘thoughtful 

advance planning or anticipation of doing what he did,’ no 

reasoning or thinking, and no weighing of consequences.” 

(Rogers, supra, 39 Cal.4th at p. 867.)

In Rogers as here, the defense asserted that the trial court should have 

instructed the jury that even if provocation was insufficient to reduce the 

killing from murder to manslaughter, it could consider provocation to negate 

premeditation and deliberation, reducing the crime to second degree murder. 

Rogers, supra, 39 Cal.4th at pp. 877-878. (See, e.g. People v. Thomas (1945) 

25 Cal.2d 880, 903 [provocation raised reasonable doubt about premeditation 

or deliberation, “leaving the homicide as murder of the second degree; i.e., an 

unlawful killing perpetrated with malice aforethought but without 

premeditation and deliberation.”])

But as the Rogers court concluded, “the manslaughter instruction does 

not preclude the defense from arguing that provocation played a role in 

preventing the defendant from premeditating and deliberating; nor does it 

preclude the jury from giving weight to any evidence of provocation in 

determining whether premeditation existed. For the foregoing reasons, we 

hold that [the predecessor to CALCRIM 522] is a pinpoint instruction that 

need not be given on the court’s own motion.” (Rogers, supra, 39 Cal.4th at 

p. 880.) We agree.

Moore contends that even if the court did not have a sua sponte duty to 

give CALCRIM 522, his trial counsel was ineffective in failing to make the 

request for the instruction, because if counsel had done so, the jury could 

have considered “that even though appellant’s earlier confrontation with 

[Puzzo] happened days before the homicide, he was subjectively, albeit 

unreasonably, triggered when he saw [Puzzo] again” and thus there was a 

reasonable likelihood that the jury would have returned a more favorable

verdict.
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Upon review of a claim of ineffective assistance of counsel, first an 

appellant must show that trial counsel’s performance was deficient, i.e., that 

counsel made errors so serious that appellant was denied his Sixth 

Amendment right to counsel. Then appellant must show that his defense 

was prejudiced by the deficient performance. (People v. Mitchell (2022) 83 

Cal.App.5th 1051, 1060 (Mitchell).) 

We cannot conclude that the performance of Moore’s trial counsel was 

deficient. Because the court instructed the jury on first degree murder,

second degree murder, voluntary manslaughter, and involuntary 

manslaughter, defense counsel was able to argue that Moore’s testimony 

established that he acted without thinking and that he could not have 

premeditated or deliberated before the killing. That was the crux of counsel’s 

argument to the jury: 

“Everything about this case screams an action done without 

deliberation based on emotion, being overcome and not 

thinking through, not carefully weighing the decisions. And 

it’s not just Mr. Moore’s own words. It’s backed up by the 

context, by the rest of the evidence that has been presented 

to you. [¶] The prosecution’s evidence has fallen far short of 

beyond a reasonable doubt for premeditated murder, and 

you should find him not guilty based on that theory.” 

A further instruction on CALCRIM 522 would have added nothing to this 

argument. 

For the same reason, we cannot conclude that trial counsel’s failure to 

request a pinpoint instruction resulted in any demonstrable prejudice. (See 

Mitchell, supra, 83 Cal.App.5th at p. 1060.) Moore testified several times as 

to his mental state, i.e., that Puzzo had scared him, and that when he 

encountered Puzzo on a subsequent occasion, “I wasn’t even thinking. I just 

reacted. I snapped.” Trial counsel used this testimony as well as other 

evidence to argue that Moore could not have premeditated or deliberated in a 
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manner that would allow a conviction for first degree murder. The fact that 

at least some members of the jury concluded otherwise does not lead to a 

conclusion that counsel was ineffective or that Moore was prejudiced by the 

lack of a pinpoint instruction.

DISPOSITION

The judgment is affirmed.

KELETY, J.

WE CONCUR:

IRION, Acting P. J.

CASTILLO, J.