(Super. Ct. No. 07F00063)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Danny Ray Poplin of first degree murder of a fetus (Pen. Code, §§ 187, subd. (a), 189--count one),*fn1 infliction of corporal injury on the mother of his child (§ 273.5, subd. (a)--count two), and assault upon the mother with a deadly weapon, a knife (§ 245, subd. (a)(1)--count three). The jury found that defendant personally used a knife (§ 12022, subd. (b)(1)) in the commission of all counts, personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) in the commission of count two, personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of count three, and personally inflicted injury resulting in the termination of a pregnancy (§ 12022.9, subd. (a)) in the commission of counts two and three. The trial court found that defendant had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12.) He was sentenced in April 2010 to state prison for a determinate term of 13 years plus an indeterminate term of 50 years to life.*fn2
On appeal, defendant contends his murder conviction must be reversed because (1) the trial court erroneously denied his requests to instruct the jury sua sponte on voluntary manslaughter, and (2) CALCRIM No. 522 on provocation is prejudicially misleading where, as here, no voluntary manslaughter instruction is given. We shall affirm the judgment.
Defendant and Vanessa Roberts, both of whom are deaf, met at a New Year's party in 2001 and began dating. In October 2002, Roberts gave birth to their son and they moved in together. Defendant abused Roberts emotionally and physically during their relationship. On one occasion, he threatened her with a knife because he did not want her to go to a store. As a result of his repeated physical abuse of Roberts, defendant had misdemeanor domestic violence convictions in July 2003, March 2004, and December 2004.
When defendant was released from jail in 2006, he moved into Roberts's apartment. In September 2006, their relationship was going poorly and defendant left for three days. While he was away, Roberts visited their friends, Mary, Leon, and Matt, a group of deaf people who lived upstairs in the apartment complex. The group used methamphetamine that evening and Roberts departed at 3:00 a.m.
When defendant returned, he heard a false rumor that Roberts had slept with Matt. Defendant immediately confronted Roberts about the rumor, and she told him she had not slept with Matt. He did not believe her, and he continued to raise the issue over the next several months.
In October 2006, Roberts learned that she was pregnant. Defendant accompanied her to medical appointments. In November 2006 they learned that the baby was a boy.
Despite the pregnancy, defendant continued to physically abuse Roberts. In December 2006, he began to question her about whether he was the child's father,*fn3 and he continued to question whether she had slept with Matt.*fn4 At another point defendant said that he would hit her if she claimed the baby was his, but he would not hit her if she said the baby was not his. When she told him she had not slept with Matt, defendant punched her in the eye.
On December 31, 2006, the anniversary of when they began dating, defendant and Roberts planned to stay home with their child. They rented movies and bought fast food. Roberts ate and took a nap. When she awoke, defendant, who had been drinking during the day, was seated in a chair and appeared to be angry. Roberts went to the bathroom and sat on the toilet. Defendant entered the bathroom and struck Roberts in the face. Roberts put her hands up to defend herself. Defendant asked, "is that Matt's sperm in you." Roberts said, "no, it's not," left the bathroom, and tried to escape out the front door.
Before Roberts could leave the house, defendant grabbed her by the back of the neck and pulled her onto a couch. When he went to the kitchen, she again moved toward the front door. He caught her, held up a 13-inch butcher knife, and asked, "did Matt put his sperm in you?" When she again said "no," he stabbed her in the abdomen. Then he withdrew the knife and stabbed her again. When he again withdrew the knife, she observed ...