APPEAL from a judgment of the Superior Court of Riverside County, Timothy F. Freer, Judge. Affirmed. (Super. Ct. No. SWF005013).
The opinion of the court was delivered by: Haller, J.
CERTIFIED FOR PUBLICATION
A jury convicted Christopher Hernandez of first degree murder on a theory of premeditation and deliberation. On appeal, Hernandez asserts the standard jury instruction on provocation (CALCRIM No. 522) was incomplete and misleading as it relates to second degree murder. We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 26, 2003, Hernandez had an argument with his girlfriend. After the argument, he left their home on foot. He had a gun with him, and as he left their residence he fired the gun into the ground.
At about 10:00 p.m. that same night, Eleazar Verdugo and Mary Quiroz (Mary) were sitting in Verdugo's car in the parking area of the duplex where Verdugo lived. According to Mary, a short while earlier Hernandez had seen them in the neighborhood and asked Verdugo for a ride to Riverside. Verdugo had agreed, and she and Verdugo were sitting in the car waiting for Hernandez to arrive.*fn1 While they were waiting in the car, they were joined by three other men, including Mary's brother, victim Alfonso Quiroz (Alfonso). Alfonso and the two men were standing outside the car talking to Mary and Verdugo. About 10 to 15 minutes later, Mary saw Hernandez walk by on the street. She lost sight of him, but then saw him again walking in the area.
As Hernandez was walking by the group the second time, there was a verbal exchange between Hernandez and Alfonso. According to Mary, Alfonso had been drinking beer and was in a good mood. Alfonso walked towards Hernandez and, speaking in a normal voice, said, " '[Hernandez], is that you?' " " 'What's up fool?' " " 'Come here.' " One of the men with Alfonso asked, " 'Who's that? Who's that?' " Hernandez continued walking by, and as he passed Alfonso he stated in Spanish that he did not feel like talking. Alfonso (who was not fluent in Spanish) asked Mary what Hernandez had said, and Mary responded, " 'I don't know. Let him go.' " Hernandez continued walking away and Alfonso stopped walking towards him. When Hernandez was about 20 feet away from Alfonso, Hernandez turned around and shot Alfonso several times, causing Alfonso to fall to the ground. Mary yelled, " '[Hernandez], what are you doing? That's my brother.' " Mary, Verdugo, and one of the men with Alfonso testified that they did not observe any threatening conduct or display of weapons before the shooting.
An autopsy revealed that Alfonso sustained five separate gunshot wounds. He was shot three times in his front torso/abdominal area, one time in his upper back, and one time in his thigh. After the shooting, Hernandez fled the state, but a few years later turned himself in to the police.
Testifying on his own behalf, Hernandez stated that on the night of the shooting he had missed the bus to Riverside and was looking for Verdugo to ask for a ride so he could sell a gun he had purchased to make money. When he arrived at Verdugo's home, he called out Verdugo's name. Three gang members came out from around the car area and started saying insulting things to him in an aggressive tone. Hernandez recognized Alfonso and did not know why he was insulting him. The three men kept coming closer to him, and they were making head signals to each other and gesturing with their hands. One of the men came around behind him, and then the men "were practically on [him]." Hernandez felt frightened and thought they were going to harm him. He started running away, and as he was running he turned and fired the gun without looking back. He testified he was not pointing the gun at any particular person; he was firing where he thought the men were; and he just wanted the men not to come close to him. He stated he did not intend to kill anyone and he shot because he was afraid.
The prosecution's theory of the case was that Hernandez committed first degree, premeditated murder. The defense theory was that Hernandez acted in reasonable self-defense supporting acquittal, or in unreasonable self-defense supporting a voluntary manslaughter verdict. The jury found Hernandez guilty of first degree murder.
In addition to requesting instructions on self-defense and imperfect self-defense, Hernandez requested an instruction on provocation to support a verdict of second, rather than first, degree murder. Hernandez requested, and the trial court gave, the standard jury instruction on provocation, CALCRIM No. 522. Hernandez did not request that the instruction be clarified or amplified.
On appeal, Hernandez asserts that CALCRIM No. 522 is incomplete and misleading because (1) it fails to specify that provocation can negate the premeditation and deliberation necessary for first degree murder; (2) it instructs the jury that it may decide the significance of the provocation; and (3) it fails to instruct the jury that provocation insufficient for manslaughter may be sufficient for second degree murder.*fn2
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. (People v. Rogers (2006) 39 Cal.4th 826, 866.) This sua sponte duty encompasses instructions on lesser included offenses that are supported by the evidence. (Id. at pp. 866-867.) 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. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) Once the trial court adequately instructs the ...