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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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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) 

---- 

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 intentionally discharged a firearm, causing death. (Pen. Code, 

§§ 187, 12022.53, subds. (b), (c), (d).) The trial court sentenced 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 lying in wait. Disagreeing, we shall affirm. 

BACKGROUND 

 On December 9, 2012, defendant fatally shot his uncle, Willis Griffin, with a rifle. 
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 The People’s theory was that defendant, who lived with his mother in a rural area, 

had been asked to leave, and his mother enlisted Griffin to help evict him. He had 

threatened to shoot Griffin the day before, and 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 residence on the day of the murder, defendant walked 75 feet from 

the residence towards him and shot him through 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 defendant, and a drug-user with a 

violent past--arrived, asked if defendant was going to shoot him, then charged at 

defendant, who did not know whether the rifle he held was loaded. Defendant brought 

the rifle up and fired it accidentally. Defendant 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 testified Griffin outweighed him by at least 50 pounds. The day 

before the killing he overheard his mother talking to Griffin, 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 going to be kicked out. He armed himself 

because he was afraid of Griffin, having seen him beat his mother’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 the rifle was loaded. 

Defendant testified that when Griffin stopped his motorcycle, he looked at 

defendant--who was about 10 feet away, holding the rifle with one arm--and said “what 

are you going to do, fucking shoot me[?]” As Griffin tried to put the kickstand down, he 
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hit his leg, swore, dismounted from the bike, and started toward defendant. Defendant 

described Griffin’s advance “Like a football tackle. 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 admitted hiding the gun, and lying to the 911 operator, the 

police, and the media. He loved his uncle, who had practically raised him. Despite this 

affection, he brought the rifle “because I thought 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 concedes 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 CALCRIM instructions on self-defense and 

imperfect self-defense. These instructions required the jury, before returning a murder 

verdict, to find that the People had proven beyond a reasonable doubt that defendant had 

not acted to defend himself, whether defendant’s belief in the need 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 threatening or harmful acts in evaluating 

defendant’s belief. As to regular self-defense, the jury was instructed 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 provokes a fight or quarrel with the intent to 

create an excuse to use force.” 
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 Defense counsel argued in part that because of Griffin’s size, violent past, and his 

sudden lunge towards defendant, defendant actually believed in the need to employ 

deadly force to defend himself. During rebuttal, the prosecutor argued, “A person 

doesn’t have the right to self-defense if he provokes the fight or [acts] with an intent to 

create an excuse to use force. Well, I’m going to go out there with this rifle, 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 self-defense, counsel cites an unforgettable 

scene from Shane, where Jack Palance’s character--a highly experienced gunfighter--

goads Elisha Cook, Jr.’s character--an ordinary “sodbuster”--into reaching for his 

revolver, whereupon Palance’s character shoots him down, having planned the entire 

scenario to absolve himself of liability, because he did not draw first. But, Hollywood 

notwithstanding--and regardless of whether the film correctly conveyed the extant law in 

19th Century Wyoming--our Supreme Court has held that “[s]elf-defense is not available 

as a plea to a defendant who has sought a quarrel with the design to force a deadly issue 

and thus, through his fraud, contrivance, or fault, 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 towards 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 provocation by defendant, 
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because the jury was free to disbelieve defendant’s testimony that he held the rifle in 

order to ensure a peaceful dialogue with Griffin. 

Accordingly, contrary to defendant’s view, substantial evidence supported the 

instruction, and therefore the trial court did not err in giving it to the jury. 

Moreover, the trial court instructed the jury that not all of the instructions were 

applicable, depending on its findings about the facts of the case. The prosecutor 

emphasized the trial court’s instruction that not all instructions would necessarily apply. 

We presume the jury would follow the instructions and disregard 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 not, as defendant contends, impair the other self-defense 

instructions, which required the People to disprove both the 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”].) This instruction did not negate or weaken those instructions, 

nor did the prosecutor’s argument. 

II 

Provocation 

 Defendant contends the trial 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 trial court should be excused. We decline to excuse the failure 

to object and find the claim forfeited. 

 The trial court gave a voluntary manslaughter instruction (CALCRIM No. 570), 

premised on a sudden quarrel or heat of passion. The instruction defined provocation and 

required the People to prove beyond a reasonable doubt that defendant did not kill in the 

heat of passion, and if they did not, the jury was instructed to find defendant not guilty of 

murder. However, the jury was not instructed that provocation could also lessen a 
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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 driveway with his motorcycle. Defendant’s act 

of grabbing the rifle and confronting Griffin was not an objectively reasonable response 

to anything Griffin did. Defense counsel argued defendant became afraid when Griffin 

lunged at him suddenly, which qualified as a sudden quarrel for purposes of provocation. 

 CALCRIM No. 522 or similar instructions on provocation 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 parry the prosecution’s evidence about a 

defendant’s intent, specifically, the mental states of premeditation and deliberation. 

Accordingly, such instruction must be requested by the defense in the trial court. (See 

People v. Rogers (2006) 39 Cal.4th 826, 877-880 [addressing CALJIC 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 the jury to understand the case. 

 Defendant points to an appellate 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. 552. We see no material difference. Although CALCRIM 

No. 552 addresses both murder and manslaughter and the different degrees of murder, 
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whereas CALJIC No. 8.73 addresses only the latter, 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 provocation can affect the degree of murder, by negating 

premeditation or deliberation, a pinpoint instruction that was not requested by the defense 

in the trial court as required. 

 Nor, on this record, can defendant bypass this procedural hurdle by invoking 

ineffectiveness of trial counsel. Defendant’s trial counsel largely emphasized the 

accident defense supported by defendant’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 forgo the [pinpoint] instruction for tactical 

reasons”].)

III 

Lying in Wait 

Defendant contends no substantial evidence supported a lying-in-wait instruction 

and that the instruction that was given 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 that it was the equivalent of premeditation and deliberation. 

She emphasized that defendant had threatened to shoot Griffin the day before, but needed 

to wait for a better opportunity, presumably when his mother was absent. When Griffin 

arrived the next day, after defendant’s mother had left, defendant took the opportunity to 

approach him with a rifle and take him unawares. 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 defendant did not shoot from cover. No such requirement inheres 
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in the lying-in-wait doctrine. Instead, as the jury was instructed, “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 traditional 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 stealth 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-wait murder involve 

ambush from cover or attacks on sleeping victims, 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 that the act of lying-in-wait is the means of the killing. 

He posits we are likely to reject the claim based 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 degree 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; 
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“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 continue for any particular period of 

time, but its duration must be substantial enough to show a state of mind 

equivalent to deliberation or premeditation. 

“A person can conceal his or her purpose even if the person killed is aware 

of the person’s physical presence.” 

As indicated by the penultimate paragraph just quoted, a lying-in-wait finding 

equates to a finding of deliberation or premeditation, as the prosecutor argued. 

Defendant focuses on the first quoted sentence, to the effect the “the defendant 

murdered while lying in wait or immediately thereafter.” (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 error, we look to whether the defendant has 

shown a reasonable likelihood that the jury, considering the instruction 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 presume 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 [citations] rather than determining 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 establish such a killing: that the defendant (1) “concealed 
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his purpose,” (2) “waited and watched for an opportunity to act,” and (3) “from a position 

of advantage . . . intended to and did make a surprise attack 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 lying in wait must be the mechanism by which the 

killing is achieved, that is, it must cause the killing. The defendant must intend to and 

“make a surprise attack on the person killed.” (Italics added.) 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 himself or his purpose at some point prior to or during the 

commission of the killing. Thus a mere temporal 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.