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The People v. Luis Amparan Rodriguez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


February 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LUIS AMPARAN RODRIGUEZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. 07-3935)

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Rodriguez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Luis Amparan Rodriguez of the first degree murder of Alexandra Cerda.*fn1 (Pen. Code, § 187, subd (a).)*fn2 Defendant appeals contending (1) the evidence was insufficient to prove defendant's intent to kill, (2) the jury was misinstructed under former CALCRIM No. 400 that an aider and abettor is "equally guilty" as the perpetrator, and (3) the trial court erred in failing to instruct the jury on the lesser included offense of manslaughter.

We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

During the afternoon of July 8, 2007, defendant went to the house of Benigno ("Benny") Sanchez in Sacramento, California. There, defendant hung out with a number of people including Sanchez and Jose David Madrigal. Eventually everyone left the house, except defendant, Sanchez, and Madrigal. Around 9:00 p.m., the victim, Alexandra Cerda, showed up at the house and accepted a beer from defendant.

Around 10:00 p.m., defendant offered Cerda a ride in his van. Cerda accepted, and defendant dropped her off at a gas station at South Watt Avenue and Fruitridge Road. Defendant turned around and drove back to Sanchez's house.

When defendant arrived at Sanchez's house at 10:30 p.m., Madrigal told him that they should go to pick up Cerda. Defendant asked what Madrigal was going to do, and Madrigal responded that he wanted to see if she would have sex with him.

Defendant and Madrigal drove to the location where Cerda had been dropped off, and they found her nearby. Defendant pulled the van over. Madrigal opened a door on the side of the van and told Cerda to get in. Madrigal also told Cerda they would take her home.

Cerda got in and sat in the captain's chair behind the front passenger seat. Madrigal stated he would also ride in the back and asked defendant to turn the volume of the music up. Madrigal got into the captain's chair behind the driver's seat and asked Cerda to have sex with him. Cerda told Madrigal that she did not want to have sex with him. Cerda and Madrigal did not argue.

Madrigal began stabbing Cerda with a 12-inch knife. Defendant testified that Madrigal stabbed Cerda "fast and hard." Cerda screamed as Madrigal stabbed her repeatedly for about 10 minutes while she sat in the seat. Cerda pleaded for Madrigal not to hurt her.

At some point during the attack, Cerda seemed to be able to turn the knife back on Madrigal so that Madrigal sustained a deep cut on his hand. Madrigal knocked her to the floor of the van and kicked her to keep her down. Madrigal stabbed her repeatedly in the stomach.

An autopsy revealed that Cerda was stabbed approximately 120 times. She had been stabbed so many times that "an exact count was difficult to come to." The wounds ranged from shallow to very deep. Among the many wounds on Cerda's body were: a slash on her scalp that was four and one-half inches long and one and one-quarter inches deep; a three-inch-long stabbing cut from the victim's temple to left upper lip; approximately 48 shallow stab wounds on Cerda's left torso from the armpit to the upper hip; dozens of "defensive wounds" on Cerda's arms; a stab wound that punctured her left lung; and multiple neck wounds including a wound that punctured her left jugular vein. The stab wounds puncturing Cerda's jugular vein and left lung each would have been fatal. The jugular wound would have been fatal in approximately five minutes while the lung puncture, by itself, would have caused death in approximately 30 to 45 minutes. All but a few of the 120 stab wounds were inflicted while Cerda was alive. Cerda's body also displayed several contusions, which were consistent with being kicked.

Cerda's injuries were also consistent with a 10-minute struggle during which the victim would have experienced pain from the stab wounds.

Defendant initially testified that he did not hear or see any of the attack occurring immediately behind him. However, he eventually admitted hearing Cerda scream. When defendant looked back, Madrigal had already stabbed her several times. Even so, Cerda was still alive. During the 10 minutes that Madrigal stabbed Cerda, defendant kept driving the van.

After the attack ended, defendant drove toward Highway 50. Once on Highway 50, Madrigal opened the doors and got ready to push the body out of the van as they approached the Highway 99 interchange. Defendant saw that the doors were covered with blood and told Madrigal to close them. They quickly decided to dump Cerda's body at the river instead.

As defendant drove down Old River Road, Madrigal threw Cerda's body out of the van while it was still moving. Cerda was already dead. The van "peeled out" as defendant quickly accelerated to get away.

Defendant and Madrigal went to Eloise Velasquez's house, where Madrigal had been staying for several days. They arrived in the early morning hours of July 9. Defendant saw that the rear interior of the van was soaked with blood. Defendant and Madrigal asked Velasquez for water to wash out the van. The men used laundry detergent and water to clean the inside of the van. Velasquez used peroxide to clean a cut on Madrigal's hand.

Defendant and Madrigal stayed at the house until 10:00 a.m. on July 9, 2007. They decided to head back to Sanchez's house and ended up walking part of the way because defendant's van broke down.

Earlier that morning, Brenda Gage was driving along Old River Road when she saw Cerda's body lying under a tree on the side of the road. Beside the body, Gage saw several objects: a 40-ounce bottle of beer; a CD insert; and a small black case. Sheriff's deputies would also find a black engine cowling that belonged to a Chevrolet or GMC van.

The detectives began to canvas areas that Cerda frequented. Based on a tip, the detectives began to look for a blue van that had frequently been seen at Sanchez's house prior to Cerda's disappearance. On July 11, 2010, two detectives spotted a blue van that matched the description given in the tip. The unoccupied van was parked at a McDonald's on the corner of Power Inn Road and 33rd Avenue. About a minute later, defendant appeared, got in the van, and drove off.

The detectives followed the van and conducted a traffic stop after defendant failed to signal a turn. Defendant was detained for questioning. During an interview with the detectives, defendant admitted that the beer bottle and cowl were in his van at the time of the attack on Cerda. When shown a picture of Cerda, defendant responded, "I was there, but I didn't kill her." Defendant's fingerprint was later identified on the bottle.

Throughout the interior of the van, the deputies found blood spatters that matched Cerda's DNA profile. Under the hood, a detective found that the engine's cowl was missing. After interviewing defendant, detectives went to Velasquez's house where they found many of Cerda's personal items in a nearby trash can. Several of the items had a dried red substance on them.

The defense presented no evidence.

DISCUSSION

I

Sufficiency of the Evidence Proving Intent to Kill

Defendant contends the evidence that the victim was stabbed approximately 120 times over the course of about 10 minutes "failed to show Mr. Madrigal, the actual perpetrator, specifically intended to kill Ms. Cerda prior to the time he inflicted the fatal injuries." Thus, defendant reasons the evidence was also insufficient to prove that he intended to aid and abet a willful, deliberate, and premeditated murder. Defendant concludes that, "at most, [he] intended to aid an assault . . . ." We disagree.

A.

As the California Supreme Court has explained: "'In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560].) We apply an identical standard under the California Constitution. (Ibid.) 'In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' (People v. Johnson (1980) 26 Cal.3d 557, 576.) The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)" (People v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.)

If the evidence reasonably supports the jury's findings, the opinion of a reviewing court that the circumstances might also reasonably support a contrary finding does not allow for reversal of the judgment. (People v. Abilez (2007) 41 Cal.4th 472, 504.)

B.

A conviction for first degree murder requires proof of an unlawful killing committed in a manner that was "willful, deliberate, and premeditated." (§ 189; People v. Romero (2008) 44 Cal.4th 386, 402.) "'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.] "The process of premeditation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .' [Citations.]"'" (People v. Halvorsen (2007) 42 Cal.4th 379, 419, quoting People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

A person may be guilty of first degree murder for aiding and abetting the killing. "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)

"'Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.' (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) [¶] . . . [¶] [I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. (See People v. Durham (1969) 70 Cal.2d 171, 181; In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.) However, '[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)" (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

C.

In this case, the evidence amply sufficed to prove that the perpetrator -- Jose David Madrigal -- killed the victim in a manner that was willful, deliberate, and premeditated. Madrigal brought along a 12-inch, fixed-blade knife when he and defendant went to look for Cerda. Madrigal began stabbing Cerda only a short time after she got into the van at Madrigal's bidding. Although Cerda purportedly turned down Madrigal's request for sex, they had not been arguing before he began to stab her. Madrigal stabbed Cerda "fast and hard" during the course of a vicious and gruesome 10-minute attack. The sheer number and type of stab wounds strongly supports the conclusion that Madrigal intended to kill Cerda. Indeed, Madrigal inflicted two wounds that would each have been fatal on its own: a deep stab that punctured Cerda's left lung and a wound that cut the jugular vein in her neck. Based on this evidence, defendant's contention that Madrigal's attack failed to demonstrate an intent to kill Cerda is devoid of merit.

A closer question is presented by the challenge to the sufficiency of the evidence of defendant's intent. The evidence indicated that defendant himself did not deliver any of the knife wounds to Cerda, nor did he cause her contusions by kicking her. Instead, defendant simply drove the van that picked up Cerda, was the scene of her death, and was the transportation to the isolated spot where her body was dumped. In assessing whether defendant's role in the killing proved his knowledge of Madrigal's purpose and his intent to commit, facilitate or encourage the crime, we consider his presence at the scene of the murder, his companionship with the perpetrator, and his conduct before and after the offense. (People v. Campbell, supra, 25 Cal.App.4th at p. 409; In re Lynette G., supra, 54 Cal.App.3d at p. 1094.)

The evidence suffices to show that defendant possessed the requisite knowledge and intent for a first degree murder conviction. Even if defendant was unaware of the plan to stab Cerda to death when she got into the van at Madrigal's invitation, defendant's conduct during the attack established the necessary mens rea.

Defendant was present throughout the entire time from the moment Madrigal asked for a ride to pick up Cerda, through the killing, at the time that they disposed of the body, and afterward when defendant and Madrigal attempted to clean the blood from the van. In short, defendant served as a companion to Madrigal throughout the course of the events surrounding Cerda's death.

Defendant's own testimony establishes that he heard Cerda scream in pain and plead with Madrigal to stop the attack. Defendant also saw Madrigal stabbing Cerda "fast and hard" while she was still alive. Without protest, evasive action, or any attempt to seek help, defendant drove the van while Cerda suffered 120 stab wounds over the course of 10 minutes.

Defendant saw the attack while Cerda was still alive, and he facilitated the fatal portion of the attack by driving according to Madrigal's instructions. By continuing to drive the van during the attack, defendant cut off Cerda's only avenue of escape. She could not have reached safety from a moving vehicle -- especially once it began to drive on the highway. Moreover, defendant's continued driving prevented anyone outside the van from hearing, seeing, or interrupting the killing. Defendant shared in the decision where to dump Cerda's body, and he drove to the remote location where her body was left.

This is not a case in which the defendant was an innocent bystander. Defendant's conduct in driving the van affirmatively thwarted any escape by the victim and facilitated the killing by Madrigal. In short, defendant "played an affirmative supportive role in the [crime] and was not simply an innocent, passive, and unwitting bystander." (People v. Campbell, supra, 25 Cal.App.4th at p. 410.) The jury was entitled to reject defendant's self-professed shock at the attack to conclude that his complicity in every aspect of the events surrounding Cerda's death showed that he possessed knowledge of Madrigal's purpose and the intent to facilitate the murder.

Defendant contends the lack of evidence regarding motive or planning to attack Cerda should be exonerating, and relies on People v. Anderson (1968) 70 Cal.2d 15 to support his argument. In Anderson, the California Supreme Court considered the types of circumstantial evidence that can support a finding of premeditation for a first degree murder conviction. (Id. at p. 25.) The high court explained that the following three categories of evidence can sustain a finding of premeditated murder: (1) planning; (2) motive; and (3) the nature and manner of the attack. (Id. at pp. 26-27.) However, Anderson's categorization does not provide a definitive analysis of whether evidence suffices to support a murder conviction. As the Supreme Court later explained: "In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. [Citation.] . . . The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (People v. Perez (1992) 2 Cal.4th 1117, 1125.)

Defendant contends the evidence disproves any motive or plan to kill Cerda. Although it is true that the evidence does not explain what motivated this senseless and gruesome death, we reject the contention that absence of motive or planning requires reversal of the murder conviction. "In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citations.] The process of premeditation and deliberation does not require any extended period of time." (People v. Mayfield (1997) 14 Cal.4th 668, 767.) Here, the evidence showed defendant facilitated a vicious and lethal attack that suffices to establish the requisite intent even in the absence of evidence regarding motive or advance planning to kill Cerda.

Defendant's conduct before, during, and after the attack provided the jury with sufficient evidence to find defendant had the requisite knowledge and intent. Consequently, the evidence was not insufficient to support defendant's conviction of first degree murder.

II

Former CALCRIM No. 400 (Aiding and Abetting)

The trial court instructed the jury pursuant to CALCRIM No. 400, as follows: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Italics added.)

Defendant contends the italicized phrase "equally guilty" misstates the law because an aider and abettor may be subject to greater or lesser criminal culpability than a perpetrator. The point is well taken. The identified phrase erroneously failed to note, for example, that defendant could have been convicted of second degree murder even though Madrigal pled guilty to first degree murder. Nonetheless, we conclude the error is harmless when considering the jury instructions as a whole.

A.

In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164, the appellate court found that former "CALCRIM No. 400's direction that '[a] person is equally guilty of the crime [of which the perpetrator is guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it' (CALCRIM No. 400, italics added), while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified." (Original italics and brackets.) Nonetheless, the Samaniego court concluded that the erroneous instruction was harmless beyond a reasonable doubt. (Id. at p. 1165.)

As did the Samaniego court, we consider whether the other instructions received by the jury on aider and abettor criminal liability cured the error in former CALCRIM No. 400. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166.) "'"In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

We conclude that the jury instructions, viewed as a whole, properly instructed the jury regarding aiding and abetting. The instructions required the jury to find that defendant had knowledge of Madrigal's purpose and intended to, and did, facilitate the crime. To this end, the trial court instructed the jury with CALCRIM No. 401 as follows: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. . . ." (Italics omitted.)

As the Samaniego court noted, error in instruction about an aider and abettor being "equally guilty" as a perpetrator is cured by instructing the jury on the requisite knowledge and intent for a first degree murder conviction. Here, as in Samaniego, the jury received CALCRIM No. 401, which made it "virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required. (People v. Hughes (2002) 27 Cal.4th 287, 371, ['"'"[t]houghts may follow each other with . . . great rapidity and cold, calculated judgment may be arrived at quickly"'"'].) In the context of attempted murder, People v. Lee (2003) 31 Cal.4th 613, supports this conclusion. It stated: '[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing -- which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.] [¶] . . . Where, as in the present case, the natural-and-probable-consequences doctrine does not apply, such an attempted murderer necessarily acts willfully, that is with intent to kill. In addition, he or she also necessarily acts with a mental state at least approaching deliberation and premeditation -- concepts that entail "'careful thought and weighing of considerations'" and "'pre-existing reflection'" [citation], as opposed to "mere unconsidered or rash impulse hastily executed" [citation] -- because he or she necessarily acts with knowledge of the direct perpetrator's intent to kill and with a purpose of facilitating the direct perpetrator's accomplishment of the intended killing.' (Id. at p. 624 . . . .)" (People v. Samaniego, supra, 172 Cal.App.4th at p. 1166, italics changed.)

Defendant's jury also received CALCRIM No. 521, with which the trial court explained that "defendant has been prosecuted for first degree murder under the theory that he aided and abetted a willful, deliberate and premeditated murder." CALCRIM No. 521 then gave the jury a definition of the mental state required for first degree murder before concluding: "All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."

The trial court also gave CALCRIM No. 640, which instructed that defendant could be guilty of first degree murder, of second degree murder, or of no crime at all. In pertinent part, the instruction explained: "You will be given verdict forms for guilty and not guilty of first degree murder and second degree murder. [¶] You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of the greater crime. [¶] . . . [¶] 3. If all of you agree that the defendant is not guilty of first degree murder but also agree that the defendant is guilty of second degree murder, complete and sign the form for not guilty of first degree murder and the form for guilty of second degree murder. [¶] . . . [¶] 5. If all of you agree that the defendant is not guilty of first degree murder and not guilty of second degree murder, complete and sign the verdict forms for not guilty of both."

Although federal due process guarantees encompass a defendant's right to have the jury properly instructed on the charged offense, we must nonetheless affirm if the error is harmless beyond a reasonable doubt. (Carella v. California (1989) 491 U.S. 263, 271 [105 L.Ed.2d 218, 225-226]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) Based on the proper instructions on aiding and abetting given in addition to former CALCRIM No. 400, we conclude the error of stating that an aider and abettor is "equally guilty" as a perpetrator is harmless beyond a reasonable doubt in this case.

III

Trial Court's Failure to Instruct on Voluntary Manslaughter

Defendant contends the jury should have been instructed on voluntary manslaughter. In the absence of any evidence of provocation by the victim, we affirm the trial court's refusal to give a voluntary manslaughter instruction.

A.

In a criminal trial, the court has a duty to instruct the jury on any offense "necessarily included" in the charged offense if substantial evidence supports a finding of the lesser crime's commission. (People v. Birks (1998) 19 Cal.4th 108, 112.) "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (Id. at p. 117.) "This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence." (Id. at p. 112.)

The trial court must instruct on lesser included offenses even in the absence of a request so long as a reasonable jury could find the evidence of the lesser offense persuasive. (People v. Lewis (2001) 25 Cal.4th 610, 645.) "Conversely, even on request, the court 'has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.'" (People v. Cole (2004) 33 Cal.4th 1158, 1215, quoting People v. Cunningham (2001) 25 Cal.4th 926, 1008.) In assessing a claim of failure to instruct on a lesser included offense, "we review independently the question whether the trial court failed to instruct on a lesser included offense." (People v. Cole, supra, at p. 1215.)

B.

As the California Supreme Court has explained: "'Manslaughter, an unlawful killing without malice, is a lesser included offense of murder.' (People v. Koontz[, supra,] 27 Cal.4th [at p.] 1086; see § 192.) 'Although section 192, subdivision (a), refers to "sudden quarrel or heat of passion," the factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation.' (People v. Lee (1999) 20 Cal.4th 47, 59; People v. Rios (2000) 23 Cal.4th 450, 461 [certain mitigating circumstances will 'reduce an intentional, unlawful killing from murder to voluntary manslaughter "by negating the element of malice"' (italics omitted)].) 'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.' (People v. Lee, supra, 20 Cal.4th at p. 59.) '[T]he victim must taunt the defendant or otherwise initiate the provocation.' (People v. Carasi (2008) 44 Cal.4th 1263, 1306; see People v. Manriquez (2005) 37 Cal.4th 547, 583-584 . . . .) The '"heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances . . . ."' (People v. Steele (2002) 27 Cal.4th 1230, 1252 . . . .)" (People v. Avila (2009) 46 Cal.4th 680, 705.)

Although voluntary manslaughter is a lesser included offense of murder, the evidence adduced at trial failed to show any provocation that could support a manslaughter conviction. As defendant himself testified, Cerda and Madrigal were not arguing before Madrigal fatally stabbed her. Defendant offers no evidence of any provocation, taunting, or offensive behavior by Cerda toward Madrigal or defendant at any time. Nothing remotely approaching the sort of behavior that might inspire a homicidal rage in an otherwise reasonable person can be gleaned from the record.

Defendant imagines the jury could have found a basis for voluntary manslaughter in the fact that he was "shocked" by Madrigal's attack. As the Attorney General correctly points out, defendant's argument fails because it does not demonstrate any conduct by the victim that would have caused defendant to be provoked in a heat of passion. (People v. Avila, supra, 46 Cal.4th at p. 705.) Due to a complete lack of evidence of provocation by the victim, the trial court did not err in failing to instruct defendant's jury on manslaughter.

DISPOSITION

The judgment is affirmed.

We concur:

BUTZ , J. MAURO , J.


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