1 Filed 5/28/15 P. v. King CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. JERRY LEE KING, Defendant and Appellant. C076545 (Super. Ct. No. 12F08209)

A jury found defendant Jerry Lee King guilty of first degree murder and found he personally used and intentiona lly discharged a firearm, ca using death. (Pen. Code, §§ 187, 12022.53, subds. (b), (c), (d).) The trial court sent enced defendant to prison for 50 years to life and he timely appealed. On appeal, defendant contends the trial court prejudicially misinstructed the jury regarding self-defense, provocation, and lyin g in wait. Disagreeing, we shall affirm. BACKGROUND On December 9, 2012, defendant fatally shot his uncle, Willis Griffin, with a rifle.2 The People’s theory was th at defendant, who lived with his mother in a rural area, had been asked to leave, and his mother en listed Griffin to help evict him. He had threatened to shoot Griffin the day before, an d about a week before the killing threatened to beat Griffin because he thought Griffin was seeing defendant’s ex-girlfriend. When Griffin arrived at the residen ce on the day of the murder, de fendant walked 75 feet from the residence towards him and shot him thro ugh the heart from 10 feet away. After the killing he had gunshot residue on his hand, hid the gun, and consistently denied shooting Griffin until his trial testimony. The defense theory was that Griffin--larger than defend ant, and a drug-user with a violent past--arrived, asked if defendant was going to sh oot him, then charged at defendant, who did not know whether the rifl e he held was loaded. Defendant brought the rifle up and fired it accidentally. Defend ant lied about the shooting because he was afraid. The People argued defendant’s claims of accident or self-defense should be rejected, because they were not raised until trial and also in part argued that defendant lacked credibility because of his three prior felony convictions. At trial, defendant testifie d Griffin outweighed him by at least 50 pounds. The day before the killing he overhear d his mother talking to Gri ffin, who said he would get defendant out of the house the next day, which made him feel bad and “tore [him] up inside.” The next day defendant argued with his mother as she prepared to leave, and threatened to stab the tires he had bought for her car. He fell asleep, woke up, and heard Griffin’s motorcycle. He believed he was go ing to be kicked out. He armed himself because he was afraid of Griffin, having se en him beat his mothe r’s ex-husband with a baseball bat and “do some pretty mean things ” to others. He added about Griffin that “[w]hen he snaps, he snaps.” Defendant did not check to see if th e rifle was loaded. Defendant testified that when Griffin stopped his motorcycle, he looked at defendant--who was about 10 fe et away, holding the rifle w ith one arm--and said “what are you going to do, fucking shoot me[?]” As Griffin tried to put the kickstand down, he3 hit his leg, swore, dismounted from the bike , and started toward defendant. Defendant described Griffin’s advance “Like a football ta ckle. Like he was going to tackle me. Like he started to run at me.” Defendant then “pulled the gun up and it just went off.” It was an accident. Defendant ad mitted hiding the gun, and lying to the 911 operator, the police, and the media. He loved his uncle, wh o had practically raised him. Despite this affection, he brought the rifle “because I thou ght if I had the gun in my hands that he wouldn’t come after me physically. . . . That we could actually just argue this out and then I wouldn’t have to leave.” DISCUSSION
I Pretextual Self-Defense Defendant contends the trial court should not have instructed the jury on the concept of pretextual self-defense. He conced es he did not object to this instruction in the trial court, but contends we should review his claim for various reasons. We elect to address the claim on the merits, and reject the claim of error. A. Background The trial court gave the pattern CALC RIM instructions on self-defense and imperfect self-defense. These instructions required the jury, before returning a murder verdict, to find that the Peop le had proven beyond a reasona ble doubt that defendant had not acted to defend himself, whether defend ant’s belief in the ne ed to do so was objectively reasonable or not. As to each defense, the jury was instructed to consider defendant’s knowledge of Griffin’s prior th reatening or harmful acts in evaluating defendant’s belief. As to regular self-defen se, the jury was instru cted defendant could stand his ground. The trial court also gave CALCRIM No. 3472, as follows: “A person does not have the right to self-defense if he or she pr ovokes a fight or quarre l with the intent to create an excuse to use force.”4 Defense counsel argued in part that becau se of Griffin’s size, violent past, and his sudden lunge towa rds defendant, defendan t actually believed in the need to employ deadly force to defend hims elf. During rebuttal, the prosecutor argued, “A person doesn’t have the right to self-defense if he pr ovokes the fight or [act s] with an intent to create an excuse to use force. Well, I’m going to go out there with this rifl e, when Willis sees it [and] says, what are you going to do, shoot me , then it’s going to be okay that I do. That’s not the way the law works.”
B. Analysis To illustrate the concept of pretextual se lf-defense, counsel ci tes an unforgettable scene from Shane , where Jack Palance’s character--a highly experienced gunfighter-- goads Elisha Cook, Jr.’s char acter--an ordinary “sodbuster”--into reaching for his revolver, whereupon Palance’s character sh oots him down, havi ng planned the entire scenario to absolve himself of liability, because he did not dr aw first. But, Hollywood notwithstanding--and regardless of whether the film correctly conveyed the extant law in 19th Century Wyoming--our Supreme Court has he ld that “[s]elf-defense is not available as a plea to a defendant who has sought a qua rrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fau lt, to create a real or apparent necessity for killing.” ( People v. Hecker (1895) 109 Cal. 451, 462.) Defendant contends “nothing remotely similar” happened in this case. We disagree. The jury could plausibly find that defendant carried the rifle with him to goad Griffin into making a threatening move. Defendant’s own testimony shows that after Griffin saw the gun, he in effect scoffed at it, taunting defendant by asking if he was going to “fucking shoot” Griffin. Then, when Griffin got off the motorcycle, according to defendant, Griffin indeed rushed towa rds defendant, whereupon, in defendant’s version, the rifle discharged as he brought it up defensively. The very fact he greeted his uncle with a rifle in hand could be viewed by the jury as provo cation by defendant,5 because the jury was free to di sbelieve defendant’s testimony that he held the rifle in order to ensure a peaceful dialogue with Griffin. Accordingly, contrary to defendant’s vi ew, substantial evidence supported the instruction, and therefore the trial court did not err in giving it to the jury. Moreover, the trial court inst ructed the jury that not a ll of the instructions were applicable, depending on its findings about the facts of the case. The prosecutor emphasized the trial court’s instruction that no t all instructions would necessarily apply. We presume the jury would fo llow the instructions and disr egard the pretextual selfdefense instruction if it did not find the facts supported it. (See People v. Sanchez (2001) 26 Cal.4th 834, 852.) It did no t, as defendant contends, impair the other self-defense instructions, which required th e People to disprove both th e perfect and imperfect selfdefense theories. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1381 [construing similar instruction, but rejecting claim that it “might have kept the jury from evaluating [the] self-defense claim”].) Th is instruction did not negate or weaken those instructions, nor did the prosecutor’s argument.
II
Provocation Defendant contends the tria l court improperly failed to instruct on provocation as it pertained to premeditation and deliberation, again proffering various reasons why the lack of an objection in the tria l court should be excused. We decline to excuse the failure to object and find the claim forfeited. The trial court gave a voluntary mans laughter instruction (CALCRIM No. 570), premised on a sudden quarrel or heat of passi on. The instruction de fined provocation and required the People to prove be yond a reasonable doubt that defendant did not kill in the heat of passion, and if they di d not, the jury was instructed to find defendant not guilty of murder. However, the jury was not instructed that provocation could also lessen a6 murder from first degree murder to second degree murder, by negating premeditation or deliberation or both. (See, e.g., CALCRIM No. 522.) As for provocation and heat of passion, the prosecutor argued defendant provoked Griffin, who was merely walking up the drivew ay with his motorcycle. Defendant’s act of grabbing the rifle and co nfronting Griffin was not an objectively reasonable response to anything Griffin did. Defense counsel ar gued defendant became afraid when Griffin lunged at him suddenly, which qualified as a sudden quarrel for purposes of provocation. CALCRIM No. 522 or simi lar instructions on provoca tion as it may bear on the questions of premeditation and deliberation are not necessary to the jury’s understanding of the applicable law; such instructions merely “pinpoint” one fact--provocation--that may be emphasized by the defense to pa rry the prosecution’ s evidence about a defendant’s intent, specifically, the mental states of premeditati on and deliberation. Accordingly, such instruction must be request ed by the defense in the trial court. (See People v. Rogers (2006) 39 Cal.4th 826, 877- 880 [addressing CA LJIC No. 8.73]; People v. Middleton (1997) 52 Cal.App.4th 19, 28-33, disapproved on another point by People v. Gonzalez (2003) 31 Cal.4th 745, 752-753, fn. 3 .) Defendant cites no authority supporting his proposition that if some provocation instructions are given, all provocation instructions must be given. As we have just described, precedent holds that not all such instructions are necessary for th e jury to understand the case. Defendant points to an appe llate decision holding such instruction is a pinpoint instruction, People v. Lee (1994) 28 Cal.App.4th 1724, at pages 1732 to 1734, and urges us not to follow it. But the opening brief does not address the holding of People v. Rogers , supra , 39 Cal.4th 826, and we may not depart from Supreme Court precedent. (See Auto Equity Sales, Inc

. v. Superior Court (1962) 57 Cal.2d 450, 455.) In the reply brief, defendant notes that Rogers and other cases interpreted CALJIC No. 8.73, not CALCRIM No. 55 2. We see no material difference. Although CALCRIM No. 552 addresses both murder and manslaughter and the different degrees of murder,7 whereas CALJIC No. 8.73 addresses only the latte r, in this case, the jury was instructed on the former via CALCRIM No. 570. The only principle of law it did not receive instruction on was that pro vocation can affect the degr ee of murder, by negating premeditation or deliberation, a pinpoint instruction that wa s not requested by the defense in the trial court as required. Nor, on this record, can defendant by pass this procedural hurdle by invoking ineffectiveness of trial counsel. Defenda nt’s trial counsel largely emphasized the accident defense supported by defenda nt’s testimony. That was a rational tactical reason for not quibbling about provocation. (See People v. Dennis (1998) 17 Cal.4th 468, 527 [“defense counsel reasonably could decide to fo rgo the [pinpoint] inst ruction for tactical reasons”].)
III Lying in Wait Defendant contends no substantial eviden ce supported a lying-in-wait instruction and that the instruction that was gi ven was incomplete. We disagree. The jury was instructed on premeditated murder and lying-in-wait murder, and the People argued the evidence supported each theory. The prosecutor’s argument about lying in wait made the point th at it was the equivalent of pr emeditation and deliberation. She emphasized that defendant had threatened to shoot Griffi n the day before, but needed to wait for a better opportunity, presumably wh en his mother was absent. When Griffin arrived the next day, after de fendant’s mother had left, defendant took the opportunity to approach him with a rifle and take him una wares. Defense counsel argued there was no lying in wait, or ambush, because defendant openly walked 75 feet from the residence towards Griffin and shot him from 10 feet away. A. Sufficiency of the Evidence Defendant first contends that the record does not support a murder under a lyingin-wait theory, because defenda nt did not shoot from cover. No such requirement inheres8 in the lying-in-wait doctrine. Instead, as the jury was in structed, “A person can conceal his or her purpose even if the person killed is aware of the person’s physical presence.” Indeed, defendant concedes that a traditiona l ambush is not required, and that acting insidiously qualifies, pursuant to Supreme Court authority (see People v. Stevens (2007) 41 Cal.4th 182, 202 [lying-in- wait special circumstance]), as does an attack performed “in a purposeful manner that required stea lth and maneuvering to gain a position of advantage over the” victim ( People v. Mendoza (2011) 52 Cal.4th 1056, 1074). Although many cases cited by defendant to illustrate lying-in-w ait murder involve ambush from cover or attacks on sleeping vic tims, these cases do not limit the ambit of lying-in-wait murder. The jury could find that defendant surprised his uncle by shooting him as Griffin approached defendant to talk , unaware that defendant intended to shoot him at close range instead of having a civil discussion. The fact that defendant was armed would not necessarily alert Griffin to any danger, as even defendant claimed great affection for his uncle. The jury could well find that defendant managed to get within easily lethal range by concealing his murderous purpose.
B. Instructional Claim Defendant claims the pattern first degree murder instruction, CALCRIM No. 521, does not require the jury to find th at the act of lying-in-wait is the means of the killing. He posits we are likely to reject the claim ba sed on precedent, but seeks to preserve it for review in the Supreme Court. The pattern instruction as given in this case provided in relevant part: “The defendant is guilty of first de gree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter. The defendant murdered by lying in wait if: “1. He concealed his purpose from the person killed;

“2 He waited and watched for an opportunity to act;9 “AND “3. Then, from a position of advantage, he intended to and did make a surprise attack on the person killed. “The lying in wait does not need to co ntinue for any particular period of time, but its duration must be substantial enough to show a state of mind equivalent to delibera tion or premeditation. “A person can conceal his or her purpo se even if the person killed is aware of the person’s physical presence.” As indicated by the penultimate paragr aph just quoted, a lying-in-wait finding equates to a finding of delib eration or premeditation, as the prosecutor argued. Defendant focuses on the first quoted senten ce, to the effect the “the defendant murdered while lying in wait or immediately thereafte r.” (Italics added.) He contends the word “while” removes any necessary causal connection between his actions and the killing and supplants it with a purely temporal one. “In reviewing claims of instructional e rror, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the in struction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights. [Citations.] We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presum e jurors can understand and correlate all instructions given.” ( People v. Vang (2009) 171 Cal.App.4th 1120, 1129; cf. People v. Speegle (1997) 53 Cal.App.4th 1405, 1413 [noting counsel was “[e] ngaging in the proscribed hypertechnical parsing of instructions [citati ons] rather than dete rmining the reasonably likely interpretation given them by reasonable jurors”].) Although the beginning of the instruction refers to a killing “while” lying in wait or immediately thereafter, the instruction then lists three elements that must be proven beyond a reasonable doubt to es tablish such a killing: that the defendant (1) “concealed10 his purpose,” (2) “waited and watc hed for an opportunity to act,” and (3) “from a position of advantage . . . intended to and did make a surprise atta ck on the person killed.” We agree with the People that these elements in combination, and in particular the third element, require that the act of lyin g in wait must be the mechanism by which the killing is achieved, that is, it must cause the killing. The defendan t must intend to and

“ make a surprise attack on the person killed.” (Italics ad ded.) This requires that the defendant’s actions of concealment of person or purpose or both affect the killing. The instruction does not permit a jury to find a lying-in-wait murder simply because a defendant concealed himsel f or his purpose at some point prior to or during the commission of the killing. Thus a mere te mporal connection between the defendant’s actions and the killing will not suffice to prove lying in wait under the pattern instruction. DISPOSITION The judgment is affirmed.

DUARTE , J.

We concur:

RAYE , P. J.

HOCH , J.