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Filed 11/2/20 P. v. Childers 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

JOSHUA ANTHONY CHILDERS,

Defendant and Appellant.

C089184

(Super. Ct. No. 17FE005883)

A jury found defendant Joshua Anthony Childers guilty of first degree murder and 

found true the allegation that he personally and intentionally discharged a firearm causing

death (Pen. Code, § 12022.53, subd. (d)).1 

The court imposed a total term of 50 years to life: 25 years to life for first degree 

murder and a consecutive term of 25 years to life for the firearm enhancement. 

1

 Undesignated statutory references are to the Penal Code.
2

On appeal, defendant asserts: (1) the trial court erred by not instructing the jury on 

the meaning of “provocation” in the context of second degree murder; (2) his trial 

counsel rendered ineffective assistance by failing to object or request a pinpoint 

instruction; and (3) this case must be remanded because the court was unaware of its 

discretion to strike the section 12022.53, subdivision (d) enhancement, and impose a 

different, uncharged enhancement within the same section (§ 12022.53, subds. (b) or (c)). 

We will affirm the judgment.

I. DISCUSSION

A. Provocation

1. Jury Instructions

The jury was instructed with CALCRIM No. 520 that murder requires malice, and 

that if the jury decided defendant committed murder, it was second degree murder unless 

the People proved beyond a reasonable doubt that the murder was first degree murder as 

set forth in CALCRIM No. 521. 

CALCRIM No. 521 instructed the jury that defendant was guilty of first degree 

murder if he acted “willfully, deliberately, and with premeditation.” The jury was 

instructed that “defendant acted deliberately if he carefully weighed the considerations 

for and against his choice and, knowing the consequences, decided to kill;” and that 

premeditation means a decision to kill before commission of the act that caused death. 

Further, “[t]he amount of time required for deliberation and premeditation may vary from

person to person and according to the circumstances. A decision to kill made rashly, 

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

instruction concludes by again explaining that the People have the burden of proving 

beyond a reasonable doubt that the murder is first degree; otherwise, the murder is second 

degree. 

The court also instructed the jury with CALCRIM No. 522, on provocation: 

“Provocation may reduce a murder from first degree to second degree and may reduce a 
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murder to manslaughter. The weight and significance of the provocation, if any, are for 

you to decide. [¶] If you conclude that the defendant committed murder but was 

provoked, consider the provocation in deciding whether the crime was first or second 

degree murder. Also, consider the provocation in deciding whether the defendant 

committed murder or manslaughter.” 

The jury was also instructed on voluntary manslaughter based on heat of passion 

as a lesser included offense to murder with a modified version of CALCRIM No. 570. 

The jury was instructed based on CALCRIM No. 570 that a killing that would otherwise 

be murder is reduced to voluntary manslaughter if the defendant killed because of a 

sudden quarrel or in the heat of passion; that the defendant killed because of a sudden 

quarrel or in the heat of passion if: (1) the defendant was “provoked;” (2) “[a]s a result of 

the provocation, the defendant acted rashly and under the influence of intense emotion 

that obscured his reasoning or judgment;” and (3) “[t]he provocation would have caused 

a person of average disposition to act rashly and without due deliberation, that is, from 

passion rather than from judgment.” The jury was also instructed that “[h]eat of passion 

is a mental state that precludes the formation of malice and reduces an unlawful killing 

from murder to manslaughter. Heat of passion arises if, at the time of the killing, the 

reason of the accused was obscured or disturbed by passion to such an extent as would 

cause the ordinarily reasonable person of average disposition to act rashly and without 

deliberation and reflection, and from such passion rather than from judgment.”

2

 

The jury was then further instructed with CALCRIM No. 570 that: 

“It is not enough that the defendant simply was provoked. The defendant is not 

allowed to set up his own standard of conduct. In deciding whether the provocation was 

2

 The trial court inserted this paragraph based on the prosecution’s request. 
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sufficient, consider whether a person of average disposition, in the same situation and 

knowing the same facts, would have reacted from passion rather than from judgment.

“If enough time passed between the provocation and the killing for an ordinary

person of average disposition to ‘cool off’ and regain his or her clear reasoning and 

judgment, then the killing is not reduced to voluntary manslaughter on this basis.

“The People have the burden of proving beyond a reasonable doubt that the 

defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the 

People have not met this burden, you must find the defendant not guilty of murder.” 

2. No Sua Sponte Duty

Defendant claims the court had a duty to instruct the jury sua sponte on the 

meaning of “provocation” in the context of second degree murder. Specifically, he

asserts the court should have explained that: (1) provocation can negate deliberation and 

premeditation; (2) provocation is assessed using a subjective standard; (3) provocation 

may be physical or verbal; and (4) once there is evidence of provocation, the prosecution 

has the burden of proving the absence of provocation beyond a reasonable doubt. 

Additionally, defendant argues that because the jurors were (properly) instructed that the 

provocation necessary to reduce a killing from murder to voluntary manslaughter must be 

sufficient to provoke a person of average disposition, the jury was misled into applying

the same reasonable person standard to the provocation that reduces a killing to second 

degree murder. We conclude the court had no sua sponte duty to further define 

provocation. 

“The trial court has a sua sponte duty to instruct the jury on the general principles 

of law relevant to the issues raised by the evidence. [Citation.] This sua sponte duty 

encompasses instructions on lesser included offenses that are supported by the evidence. 

[Citation.] Additionally, even if the court has no sua sponte duty to instruct on a 

particular legal point, when it does choose to instruct, it must do so correctly. [Citation.]

Once the trial court adequately instructs the jury on the law, it has no duty to give 
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clarifying or amplifying instructions absent a request. [Citation.] [¶] 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. [Citation.] We consider the instructions as a whole and assume the jurors are 

intelligent persons capable of understanding and correlating all the instructions.” (People 

v. Hernandez (2010) 183 Cal.App.4th 1327, 1331-1332 (Hernandez).)

As defendant points out, the provocation necessary to reduce first degree murder 

to second degree murder is based on a subjective standard. “To reduce a murder to 

second degree murder, premeditation and deliberation may be negated by heat of passion 

arising from provocation. [Citation.] If the provocation would not cause an average 

person to experience deadly passion but it precludes the defendant from subjectively 

deliberating or premeditating, the crime is second degree murder.” (Hernandez, supra, 

183 Cal.App.4th at p. 1332.) In contrast, the provocation necessary to reduce any murder 

to voluntary manslaughter requires more. “For that, an objective test also applies: the 

provocation must be so great that, in the words of CALCRIM No. 570, it ‘would have 

caused a person of average disposition to act rashly and without due deliberation, that is, 

from passion rather than from judgment.’ ” (People v. Jones (2014) 223 Cal.App.4th 

995, 1000-1001 (Jones).)

In Jones, supra, 223 Cal.App.4th 995, the jury was also instructed with 

CALCRIM Nos. 520, 521, 522, and 570. (Jones, supra, at p. 999.) The defendant 

“argue[d] that these pattern instructions were likely to have misled the jury into 

concluding that the objective test applies both for reduction of first to second degree 

murder as well as from murder to manslaughter.” (Id. at p. 1001.) The Jones court 

rejected this argument because these instructions “are correct. They accurately inform 

the jury what is required for first degree murder, and that if the defendant’s action was in 

fact the result of provocation, that level of crime was not committed. CALCRIM Nos. 

521 and 522, taken together, informed jurors that ‘provocation (the arousal of emotions) 
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can give rise to a rash, impulsive decision, and this in turn shows no premeditation and 

deliberation.’ [Citation.] As the jury also was instructed, a reduction of murder to 

voluntary manslaughter requires more. It is here, and only here, that the jury is instructed 

that provocation alone is not enough for the reduction; the provocation must be sufficient 

to cause a person of average disposition in the same situation, knowing the same facts, to 

have reacted from passion rather than judgment.” (Ibid.) 

We agree with the Jones court that the instructions correctly set forth the law. The 

jury was sufficiently and accurately instructed on provocation and the People’s burden of 

proof. (See also Hernandez, supra, 183 Cal.App.4th at p. 1334 [“We are satisfied that, 

even without express instruction, the jurors understood that the existence of provocation 

can support the absence of premeditation and deliberation”].) The jury was further 

instructed to “[p]ay careful attention to all of the[ ] instructions and consider them 

together” (CALCRIM No. 200), and we assume the jury followed all of the court’s 

instructions. (People v. Boyette (2002) 29 Cal.4th 381, 431.) Reading the instructions as 

a whole, it is not reasonably likely that the jury believed it could only find provocation 

sufficient preclude premeditation and deliberation for first degree murder if it found the 

provocation was also sufficient to reduce the crime to voluntary manslaughter. The 

instructions clearly conveyed the separateness of these inquiries.

To the extent defendant asserts the trial court should have further instructed on the 

type of provocation sufficient to preclude premeditation and deliberation, it appears 

settled that he is arguing for a pinpoint instruction that does not need to be given sua 

sponte. (See People v. Hardy (2018) 5 Cal.5th 56, 99 [“Instructions on provocation are 

pinpoint instructions that need not be given sua sponte but only on request”]; People v. 

Rogers (2006) 39 Cal.4th 826, 878-879 [“Because CALJIC No. 8.73 relates the evidence 

of provocation to the specific legal issue of premeditation and deliberation, it is a 

‘pinpoint instruction’ ”]; Jones, supra, 223 Cal.App.4th at p. 1001 [instruction that 

objective test does not apply to reduction of degree of murder is a pinpoint instruction]; 
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Hernandez, supra, 183 CalApp.4th at p. 1333 [“instruction on provocation for second 

degree murder is a pinpoint instruction”].) This is no less true of an instruction that 

verbal provocation can be sufficient than of an instruction that provocation that does not 

meet an objective standard can be sufficient. Defendant nonetheless contends the term 

“provocation” for purposes of negating premeditation and deliberation has a technical 

meaning peculiar to the law, and therefore should have been defined sua sponte by the 

trial court. Not so. “A word or phrase having a technical, legal meaning requiring 

clarification by the court is one that has a definition that differs from its nonlegal 

meaning.” (People v. Estrada (1995) 11 Cal.4th 568, 574.) “Provocation means 

‘something that provokes, arouses, or stimulates’; provoke means ‘to arouse to a feeling 

or action[;] . . . to incite to anger.’ ” (Hernandez, supra, at p. 1334.) As used in the 

instructions in the instant case, “provocation” “bore [its] common meaning, which 

required no further explanation in the absence of a specific request.” (People v. Cole

(2004) 33 Cal.4th 1158, 1217-1218; see also Hernandez, supra, at p. 1334.) We reject 

defendant’s assertion of instructional error.

3. No Ineffective Assistance of Counsel

Defendant argues alternatively that his trial counsel rendered ineffective assistance 

by failing to object to CALCRIM No. 522 or request a pinpoint instruction. 

To prevail on such claims, defendant “must establish not only deficient 

performance, i.e., representation below an objective standard of reasonableness, but also 

resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible, and 

counsel’s decisionmaking must be evaluated in the context of the available facts.”

(People v. Bolin (1998) 18 Cal.4th 297, 333.) “In the usual case, where counsel’s trial 

tactics or strategic reasons for challenged decisions do not appear on the record, we will 

not find ineffective assistance of counsel on appeal unless there could be no conceivable 

reason for counsel’s acts or omissions.” (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
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At trial, defendant’s counsel made the tactical decision to focus the jury on the 

lesser included offenses of voluntary and involuntary manslaughter, and argue that the 

prosecution had not established either first or second degree murder. Defendant has not 

shown his counsel acted improperly by refusing to propose an additional jury instruction 

that would detract from these options and highlight instead the possibility of a second 

degree murder verdict that he was arguing did not apply, especially since the court’s jury 

instructions were already legally correct. (See Jones, supra, 223 Cal.App.4th at p. 1002 

[no deficient performance where counsel chose to focus on theory of mistaken identity 

rather than provocation]; see also People v. Castillo (1997) 16 Cal.4th 1009, 1015 [no 

deficient performance where court’s jury instructions “fully apprised the jury of the 

law”].) Defendant has not established his counsel rendered ineffective assistance.

B. Firearm Enhancement

At sentencing, the court declined to strike the firearm enhancement. Defendant

argues this case must be remanded because the trial court was unaware of its discretion to 

strike the section 12022.53, subdivision (d) enhancement and impose a different, 

uncharged enhancement within the same section (§ 12022.53, subds. (b) or (c)).

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cites People v. Morrison (2019) 34 Cal.App.5th 217, as authority for his position. People 

v. Tirado (2019) 38 Cal.App.5th 637, 644, review granted November 13, 2019, S257658, 

People v. Garcia (2020) 46 Cal.App.5th 786, 790-794, review granted June 10, 2020, 

S261772, and People v. Yanez (2020) 44 Cal.App.5th 452, 458-460, review granted April 

22, 2020, S260819, are contrary to Morrison. We find these authorities more persuasive 

than Morrison. Our Supreme Court, having taken review of these cases, is now poised to 

address this split of authority. In the meantime, we join those authorities that have 

3

 As defendant describes it, “the prosecutor only charged a section 12022.53, subdivision 

(d) gun enhancement, although it did refer to the other subdivisions, and the jury was 

instructed on only the greatest section 12022.53 gun enhancement for the murder count.” 
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rejected the holding in Morrison. Recognizing that we will not have the final word on 

the matter, we also conclude any remand would be unnecessary in this case. 

“ ‘ “Defendants are entitled to sentencing decisions made in the exercise of the 

‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of 

the scope of its discretionary powers can no more exercise that ‘informed discretion’ than 

one whose sentence is or may have been based on misinformation regarding a material 

aspect of a defendant’s record.” [Citation.] In such circumstances, we have held that the 

appropriate remedy is to remand for resentencing unless the record “clearly indicate[s]” 

that the trial court would have reached the same conclusion “even if it had been aware 

that it had such discretion.” ’ ” (People v. Flores (2020) 9 Cal.5th 371, 431-432.)

The record here clearly indicates the trial court would have reached the same 

conclusion even if it could impose a lesser yet uncharged included enhancement that was 

never presented to the jury. At sentencing, the court acknowledged its discretion to 

decline to impose sentence on the gun enhancement, but announced that: “I am going to

use my discretion to impose the full 25 years to life consecutive to the term I just 

imposed for first[]degree murder, for a total of 50 years to life” and added that defendant 

would “receive the maximum term allowed by law, which is 50 years to life.” On this 

record, we determine the trial court intended that defendant receive the “full” term for the 

enhancement and the “maximum term allowed by law” for the murder and that remand 

would be futile.
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II. DISPOSITION

The judgment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

DUARTE, Acting P. J.

/S/

 

HOCH, J.