People v. Tauch CA2/8

Filed 9/16/15 P. v. Tauch CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B257033

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA078974)
v.

RICHARD VITHYA TAUCH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Stanley
Blumenfeld, Jr., Judge. Affirmed with modifications.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, William H. Shin and Eric E.
Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.

******
 A jury convicted Richard Vithya Tauch of two counts of first degree murder of
Jenny Vanny Sor and Wen Wa Chao (Pen. Code, § 187, subd. (a)),1 and found true
multiple-murder and lying-in-wait special circumstances (§ 190.2, subd. (a)(3), (15)), as
well as firearm enhancements (§ 12022.53, subd. (d)). He was sentenced to two
consecutive life sentences without parole plus a consecutive 50 years to life for the
firearm enhancements. He challenges his conviction on multiple grounds, claiming (1)
his due process rights were violated when he was interrogated by undercover police
officers in a jail cell after he invoked his right to counsel in a preceding interview by
police; (2) the trial court erred in excluding evidence that, when he was a child in
Cambodia under the Khmer Rouge, he witnessed a person’s liver being extracted while
he was still alive, which formed part of the basis for his expert’s opinion that he suffered
posttraumatic stress disorder; and (3) the trial court erred in instructing on the issue of
provocation. He also challenges certain aspects of his sentence. We modify the
judgment to correct two sentencing errors and affirm the judgment as modified.
STATEMENT OF FACTS
1. Prosecution Case
On January 19, 2010, at around 7:50 p.m., appellant shot Sor, his ex-girlfriend,
and Chao, the man she was seeing, multiple times as they stood in Chao’s invalid father’s
apartment at his assisted living facility in Monterey Park. The prosecution theorized
appellant was hiding in Sor’s car when she drove to Chao’s father’s place, at which point
he emerged, killed them, and drove away in Sor’s car.
Prior to the shooting, appellant worked at the Hollywood Park Casino, first as an
armed guard, then as an unarmed gaming supervisor. Victim Sor worked as a dealer at
the casino. Sor and appellant were in a relationship, and in 2008 he moved into her
apartment where she lived with her three children. While he lived there, he usually
stayed in his and Sor’s bedroom playing video games, which were first-person, shooter-
style games that placed the player in the perspective of the character going around

1 Undesignated statutory citations are to the Penal Code unless otherwise noted.

2
“killing enemies.” He once showed Sor’s son a gun and asked if he wanted to go target
shooting; Sor’s son declined. Occasionally, Sor’s son heard arguments coming from Sor
and appellant’s bedroom and Sor slept outside the bedroom. Sor’s son also saw appellant
drive Sor’s car.
Appellant moved out of Sor’s apartment in December 2009. Prior to that, Sor
seemed unhappy and appellant appeared stressed because Sor was “moody.” But when
he moved out, she appeared happier. She had also begun dating another man prior to
appellant moving out. After appellant left the apartment, Sor told her son not to answer
his calls or open the door if he visited. Appellant called approximately weekly and more
frequently in the days leading up to the shooting. Sor’s son told him a couple of times to
stop calling and that Sor did not want to talk to him.
On the day of the shooting, appellant did not report for work at the casino. Sor
worked her usual shift, clocking out for the day at 7:15 p.m. After work, she drove to the
Lions Manor senior living facility in Monterey Park where Chao’s invalid father lived.
According to cell phone records, she called Chao on the way. When she arrived, she
parked her car and entered room 113 through an exterior sliding glass door. Chao was
there with his father and Rong Shen Diao, Chao’s father’s caretaker, and Diao’s wife.
Immediately after Sor entered the room, several gunshots were fired from the exterior
patio. Sor and Chao were hit several times, but no one else was injured. Diao and his
wife ran out of the room.
Jia Xiang Guo was in an upstairs room when Diao and his wife ran in. Guo had
heard the gunshots and Diao said someone was shooting downstairs. Guo walked onto
his balcony and saw a man run from room 113 to a white Toyota. The man opened the
trunk, put something in it, briefly walked back toward the room, and then back to the car
and drove away. Guo was able to write down a partial license plate number and police
later identified the car as belonging to Sor.
Officers responded to the shooting at approximately 7:54 p.m. They found Sor’s
and Chao’s bodies, as well as shell casings on the patio, and fired bullets, bullet
fragments, and casings inside the apartment. All the casings came from .40-caliber Smith

3
and Wesson ammunition. It was determined Sor and Chao died from multiple gunshot
wounds. No sooting or stippling was found on either victim, indicating the shots were
fired from more than two feet away.
On January 20, 2010, the day after the shooting, appellant turned himself in at the
front counter of the Monterey Park police station. He said he had done something wrong
and should be arrested. He also said his car was in the parking lot and contained four
guns. He had Sor’s driver’s license in his wallet. A search of his car yielded a nametag
with the last name “Tauch”; his passport; four semiautomatic handguns, including a .40-
caliber Sig Sauer in a holster; .40-caliber ammunition; and two empty Smith and Wesson
ammunition boxes. He was the registered owner of the car and two of the guns; his ex-
wife was the registered owner of one of the guns. Ballistics analysis matched the casings
and several of the bullet fragments recovered from the shooting to the gun in the holster.
After appellant turned himself in, detectives interviewed him in an interview room
at the police station. He was not under arrest at the time and he was not given Miranda
advisements.2 He asked several times to be arrested or killed. He described the guns in
his car. He explained Sor had been cheating on him and he had not met Chao before the
shooting. He then requested an attorney and the interview concluded.
Following the interview, he was placed in a jail cell with an undercover deputy
posing as an inmate. He asked what the deputy was in jail for and the deputy said he hit
his wife. Appellant immediately volunteered, “I killed.” In a back-and-forth exchange
with the undercover officer, he explained he killed his “wife” and her boyfriend with a
.40-caliber Sig Sauer the night before in Monterey Park because they cheated. He
explained he followed her from work to her boyfriend’s house and when he saw them, he
could not stop himself. He fired 10 rounds at them and tried to shoot himself but ran out
of bullets. He said, “I was just going crazy, I wish I was thinking.” He also said, “They
will probably execute me or I’ll stay here sixty years or something.” A second

2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

4
undercover deputy entered the cell and asked why appellant was in jail. He responded
that he had killed two people.
Sor’s car was found undamaged on January 22, 2010, in a parking lot in San
Gabriel.
2. Defense Case
Appellant did not seriously contest that he perpetrated the killings. Instead, his
defense was that he hid in Sor’s car to propose to her, but he heard her speaking on the
phone with Chao and heard Cambodian music on the radio, which triggered the
posttraumatic stress disorder (PTSD) he developed from traumatic experiences he had
growing up under the Khmer Rouge in Cambodia and later after he moved to the United
States.
Nancy Kaser-Boyd, a clinical and forensic psychologist and a specialist in PTSD,
interviewed appellant twice and reviewed his jail records, which indicated he reported
having flashbacks and nightmares. He had been given medication and was on suicide
watch. She explained that, when he was 11 in Cambodia, his father was taken away and
murdered, at which point his family fled to a communist work camp. He was separated
from his family and placed in a children’s group, where he was starved, beaten, and raped
by the village chief’s son. He witnessed executions of people who stole food and a man
and woman who committed adultery, both of which were violations of the Khmer Rouge
code of conduct. While escaping Cambodia, he witnessed his friend’s mother blown up
by a land mine. When he worked as an armored truck security guard in America, he
witnessed a coworker die of a heart attack and saw another coworker shot and wounded
during a robbery attempt. Kaser-Boyd opined appellant suffered from severe PTSD
based on those traumatic experiences.
She explained the three common “symptom clusters” of PTSD are (1)
experiencing recurrent unwanted memories of the traumatic event; (2) avoiding
reminders of the traumatic event, including by using drugs or alcohol; and (3) being
hypervigilant to danger, having trouble calming down, and having trouble controlling
emotions. When presented with a hypothetical involving someone with PTSD hiding in

5
his girlfriend’s car intending to propose to her, hearing her speak to a new boyfriend on
the phone, and hearing Cambodian music on the radio, Kaser-Boyd opined the person in
that situation would have reacted emotionally, and the music could have triggered
traumatic memories of Cambodia. He could have entered a disassociative episode during
which he acted out of character.
Sor’s sister testified Sor’s primary language was Cambodian and she liked to listen
to Cambodian music in the car. Appellant’s mother testified she spoke with appellant on
January 19, 2010, then went to a jewelry store in Long Beach, where she obtained three
rings without large mounted stones. She dropped them off with appellant, who was
staying at her daughter’s house in San Gabriel. He left, and later she picked him up on
San Gabriel Boulevard when he called her. She dropped him off at the Hollywood Park
Casino parking lot.
DISCUSSION
1. Admission of Appellant’s Jailhouse Confession Did Not Violate Due Process.
The prosecution sought to introduce three sets of statements by appellant—his
initial statements when he turned himself in at the police station; his statements to
officers during his interview; and his statements to undercover officers in his jail cell. In
the middle of his interview with officers, he asked if he could have a lawyer. One officer
responded, “Okay, that’s fine you understand if you ask for a lawyer we can’t talk and get
your side of the story. And you’re worried . . . .” Appellant said, “That’s okay, whatever
I say it’s just there already. It hurts me more to remind me . . . I don’t know. I only
remember (inaudible).” The officers told him he was not under arrest and asked him
more questions. Near the end of the interview, one of the officers said he would like to
know where Sor’s car was located, so “if you decide you want to tell me, if you’d like to
call a lawyer and have them tell me . . . we’d like to find the car for the boys.” Appellant
responded, “I’d like to have a lawyer tell you.” Shortly thereafter the officers ended the
interview.
Appellant was later placed in a cell with undercover officers and essentially
immediately confessed to the shooting without prompting, as discussed above. In the

6
course of that conversation, the first undercover officer placed in the cell asked him if he
had talked to a lawyer or had been given a lawyer, and appellant responded he had to wait
until his arraignment. He said officers had not let him make a phone call or read him his
Miranda rights. When the officer asked if he talked to the police, appellant said, “I asked
them to get me a lawyer. I didn’t want to cop [to] the whole thing cause [sic] I told them
mostly part of it already. I don’t want to, if they want to execute me and whatever . . . go
ahead, I got nothing else to lose anyway . . . but do it the right way for my own rights
too.” Later after the second undercover officer was placed in the cell, appellant said he
had to go to court that Friday but he did not have a lawyer. One of the officers said he
would be appointed a lawyer and the other officer said he should talk to that lawyer.
Appellant objected to the admission of his statements to the undercover officers,
arguing they violated his Fifth Amendment Miranda rights as well as his Sixth
Amendment right to counsel. The court relied on Illinois v. Perkins (1990) 496 U.S. 292
(Perkins) to find appellant’s Miranda rights were not violated because he did not know
his cellmates were police officers and his Sixth Amendment right to counsel was not
violated because he had not yet been charged with any crime. Citing People v. Guilmette
(1991) 1 Cal.App.4th 1534 (Guilmette) and a series of out-of-state cases, the court
rejected appellant’s attempt to distinguish Perkins on the ground that appellant invoked
his right to counsel before he was questioned by undercover officers. The court also
concluded appellant was not in custody during his initial interview with the police, so he
could not anticipatorily invoke his right to counsel in order to trigger any protections
while he was speaking to undercover officers in the jail cell.
The court also rejected any argument that admitting appellant’s jail confession
violated due process. The court noted his confession could have been coerced even in the
absence of police interrogation if appellant’s will was “overborne,” but that did not
happen here: “[Appellant] blurted out that he had ‘killed’ immediately after being
introduced to his ‘cellmate.’ The undercover agent, a man of short stature and
nonthreatening physical appearance, acted as a friendly cellmate. He spoke in soft and

7
nonthreatening tones and made no promises or threats. A review of the audio recording
reveals a complete absence of coercion within the meaning of due process.”
In reviewing the trial court’s ruling, “‘we accept the trial court’s resolution of
disputed facts and inferences, and its evaluations of credibility, if supported by
substantial evidence. We independently determine from the undisputed facts and the
facts properly found by the trial court whether the challenged statement was illegally
obtained.’” (People v. Gamache (2010) 48 Cal.4th 347, 385.) The parties here do not
dispute the facts, so we independently review the trial court’s ruling admitting appellant’s
statements to undercover officers in his jail cell.
Appellant does not pursue his Miranda and Sixth Amendment arguments on
appeal. Instead, he relies on a concurring opinion by Justice Brennan in Perkins to argue
his due process rights were violated. In Perkins, while in custody on unrelated charges,
the defendant was placed in a cell with an undercover government agent. The agent
proposed an escape plot, and the defendant made statements implicating himself in the
crime the agent sought to solve. The defendant had not been given Miranda warnings,
which he claimed rendered his statements inadmissible. (Perkins, supra, 496 U.S. at
pp. 294-295.) The court found no Miranda violation because “[c]onversations between
suspects and undercover agents do not implicate the concerns underlying Miranda. The
essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present
when an incarcerated person speaks freely to someone that he believes to be a fellow
inmate. Coercion is determined from the perspective of the suspect. [Citations.] When a
suspect considers himself in the company of cellmates and not officers, the coercive
atmosphere is lacking.” (Id. at p. 296.) California law is in accord. (People v. Williams
(1988) 44 Cal.3d 1127, 1141-1142 [Miranda “has never been applied to conversations
between an inmate and an undercover agent.”]; see People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 284 [no Miranda violation from admitting recorded statements to inmate
wearing wire]; People v. Tate (2010) 49 Cal.4th 635, 685-687 [no Miranda violation in
admitting statements to defendant’s girlfriend in midst of custodial interrogation]; People

8
v. Webb (1993) 6 Cal.4th 494, 526 [no Miranda violation in admitting telephone
conversations recorded by defendant’s girlfriend for police].)
Concurring in the judgment in Perkins, Justice Brennan agreed that “when a
suspect does not know that his questioner is a police agent, such questioning does not
amount to ‘interrogation’ in an ‘inherently coercive’ environment so as to require
application of Miranda.” (Perkins, supra, 496 U.S. at p. 300 [conc. opn. by Brennan,
J.].) He noted, however, that the “deception and manipulation practiced on respondent
raise a substantial claim that the confession was obtained in violation of the Due Process
Clause,” an issue not raised in the case. (Id. at p. 301.) Quoting Miller v. Fenton (1985)
474 U.S. 104, 109-110, he set out the following standards to evaluate this type of claim:
“‘This Court has long held that certain interrogation techniques, either in isolation or as
applied to the unique characteristics of a particular suspect, are so offensive to a civilized
system of justice that they must be condemned under the Due Process Clause of the
Fourteenth Amendment. . . . Although these decisions framed the legal inquiry in a
variety of different ways, usually through the “convenient shorthand” of asking whether
the confession was “involuntary,” [citation], the Court’s analysis has consistently been
animated by the view that “ours is an accusatorial and not an inquisitorial system,”
[citation], and that, accordingly, tactics for eliciting inculpatory statements must fall
within the broad constitutional boundaries imposed by the Fourteenth Amendment’s
guarantee of fundamental fairness.’ [¶] That the right is derived from the Due Process
Clause ‘is significant because it reflects the Court’s consistently held view that the
admissibility of a confession turns as much on whether the techniques for extracting the
statements, as applied to this suspect, are compatible with a system that presumes
innocence and assures that a conviction will not be secured by inquisitorial means as on
whether the defendant’s will was in fact overborne.’” (Perkins, at pp. 301-302.)
Justice Brennan believed the facts in Perkins deserved “close scrutiny” because
“[t]he police devised a ruse to lure respondent into incriminating himself when he was in
jail on an unrelated charge. A police agent, posing as a fellow inmate and proposing a
sham escape plot, tricked respondent into confessing that he had once committed a

9
murder, as a way of proving that he would be willing to do so again should the need arise
during the escape.” (Perkins, supra, 496 U.S. at p. 302 [conc. opn. of Brennan, J.].) The
testimony from the undercover officer and an informant revealed the “deliberate manner”
of the questioning and the nature of custody gave the state “virtually complete control
over the suspect’s environment. Thus, the State can ensure that a suspect is barraged
with questions from an undercover agent until the suspect confesses.” (Id. at pp. 302-
303.) He concluded, “[t]he deliberate use of deception and manipulation by the police
appears to be incompatible ‘with a system that presumes innocence and assures that a
conviction will not be secured by inquisitorial means,’ [citation], and raises serious
concerns that respondent’s will was overborne. It is open to the lower court on remand to
determine whether, under the totality of the circumstances, respondent’s confession was
elicited in a manner that violated the Due Process Clause. That the confession was not
elicited through means of physical torture, [citation] or overt psychological pressure,
[citation], does not end the inquiry. ‘[A]s law enforcement officers become more
responsible, and the methods used to extract confessions more sophisticated, [a court’s]
duty to enforce federal constitutional protections does not cease. It only becomes more
difficult because of the more delicate judgments to be made.’” (Id. at p. 303.)
Perkins did not involve precisely the same facts as we have here: a defendant who
invoked his Miranda rights first and then confessed to undercover officers placed in his
cell. But numerous California courts have found no Miranda violation in similar
circumstances. (See People v. Thornton (2007) 41 Cal.4th 391, 432-433 [no Miranda
violation in admitting voluntary statements to defendant’s grandmother after defendant
invoked 5th Amend. rights]; People v. Davis (2005) 36 Cal.4th 510, 555 [no Miranda
violation in admitting recorded statements to defendant’s cellmates after defendant
refused to waive Miranda rights]; People v. Mayfield (1997) 14 Cal.4th 668, 758 [no
Miranda violation in admitting statements to defendant’s father after defendant declined
to waive Miranda rights and invoked right to counsel], disapproved on other grounds by
People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2; People v. Jefferson (2008) 158
Cal.App.4th 830, 840-841 [no Miranda violation in admitting recorded statements to

10
cellmate after defendant invoked Miranda rights]; People v. Plyler (1993) 18 Cal.App.4th
535, 544-545 [no Miranda violation from recorded telephone calls with defendant’s
girlfriend who was working with police after defendant invoked right to counsel];
Guilmette, supra, 1 Cal.App.4th at pp. 1540-1542 [no Miranda violation in admitting
recorded telephone calls between defendant and victim after defendant invoked his
Miranda rights].)
Assuming appellant’s due process claim is distinguishable from the Miranda
claims repeatedly rejected in these cases (a point we need not decide), he can only show a
due process violation even under Justice Brennan’s formulation of the concept if the
totality of the circumstances demonstrates his will was overborne and he was subjected to
“deception and manipulation” incompatible with the presumption of innocence and the
inquisitorial nature of our legal system. (Perkins, supra, 496 U.S. at p. 303 [conc. opn. of
Brennan, J.].) That standard was not met here. Most importantly, appellant does not
challenge the trial court’s factual findings that he was not subject to any sort of coercion
that led to an involuntary confession. Instead, the undercover agent who first entered the
cell was physically nonthreatening, acted friendly, spoke softly, and uttered no threats or
promises. Nor did the officer elicit appellant’s initial inculpatory statement; as the trial
court found, appellant was the one who “blurted out that he had ‘killed’ immediately after
being introduced to his ‘cellmate.’” Unlike in Perkins, the officer did not say anything to
trick or manipulate appellant into confessing; he merely engaged appellant in casual
conversation after appellant volunteered that he had “killed” someone. While we
understand appellant’s discomfort with the idea that he could invoke his right to counsel
only to have the police circumvent it by placing an undercover officer in his cell, nothing
distinguishes this case from the line of Miranda case law rejecting similar claims.
Without a stronger showing of deception and manipulation repugnant to our system of
justice, we are compelled to reject appellant’s due process claim and find the court
properly admitted his statements.

11
2. The Trial Court Properly Limited Expert Testimony on Appellant’s Experiences in
Cambodia.
The prosecutor initially sought to exclude statements appellant made to Kaser-
Boyd about his experiences in Cambodia and the United States that could have
contributed to his PTSD, arguing they were hearsay and more prejudicial than probative.
The prosecutor later clarified he was only objecting to appellant’s statement to Kaser-
Boyd that he had witnessed a man’s liver being removed and eaten. Defense counsel
argued the liver episode should be admitted because it was traumatizing and still
impacted appellant 30 years later. In line with the prosecutor’s objection, the trial court
admitted appellant’s statements to Kaser-Boyd about his experiences in Cambodia and
the United States as recounted above, but excluded testimony about the liver incident
under Evidence Code section 352 because it was “obviously very inflammatory” and had
limited probative value in light of appellant’s other “extraordinarily traumatic”
experiences. The circumstances Kaser-Boyd would describe were “quite ample and
sufficient to convey what she needs to convey without the inflammatory part of that
description.” Appellant contends this ruling was erroneous. We disagree.
Under Evidence Code section 352, a trial court may exclude evidence “if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” We review exclusion of
evidence under Evidence Code section 352 for abuse of discretion. (People v. Kipp
(2001) 26 Cal.4th 1100, 1121.)
Kaser-Boyd was permitted to testify to many of appellant’s horrific experiences in
Cambodia, including that he was starved, beaten, and raped; he witnessed executions; he
saw a friend’s mother get blown up; and his father was murdered. She also described his
traumatic experiences in the United States, including witnessing a coworker die of a heart
attack and seeing another coworker shot during a robbery attempt. Based on these
events, she was able to conclude appellant suffered from severe PTSD and was able to
give her opinion in response to a hypothetical question that appellant could have had a

12
disassociative episode during the shooting. It was eminently reasonable for the trial court
to conclude that the graphic and inflammatory liver episode added very little to her
testimony regarding the other horrific events in appellant’s life. We cannot say the court
abused its discretion in excluding it.3
3. The Court Properly Instructed on Provocation and Any Error Was Harmless.
Appellant claims the court misinstructed the jury with CALCRIM No. 522 and
CALCRIM No. 570 because those instructions, in combination, allowed the jury to
improperly apply an objective standard of reasonableness when assessing provocation to
decide between first degree and second degree murder, when a subjective standard
applies. We disagree.
As given to the jury, CALCRIM No. 522 stated: “Provocation may reduce a
murder from first degree to second degree and may reduce a 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.”
CALCRIM No. 570 defined the difference between murder and voluntary
manslaughter based on a sudden quarrel or the heat of passion, including how
provocation affects that determination:
“A killing that would otherwise be murder is reduced to voluntary manslaughter if
the defendant killed someone because of a sudden quarrel or in the heat of passion.
“The defendant killed someone because of a sudden quarrel or in the heat of
passion if:

3 To the extent appellant argues his constitutional right to present a defense was
violated by the exclusion of this evidence, the court’s “application of ordinary rules of
evidence—including the rule stated in Evidence Code section 352—generally does not
infringe upon this right [citations].” (People v. Cornwell (2005) 37 Cal.4th 50, 82,
disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

13
 “1. The defendant was provoked;
“2. As a result of the provocation, the defendant acted rashly and under the
influence of intense emotion that obscured his reasoning or judgment; and
“3. The provocation would have caused a person of average disposition to act
rashly and without due deliberation, that is, from passion rather than from judgment.
“Heat of passion does not require anger, rage, or any specific emotion. It can be
any violent or intense emotion that causes a person to act without due deliberation and
reflection.
“In order for heat of passion to reduce a murder to voluntary manslaughter, the
defendant must have acted under the direct and immediate influence of provocation as I
have defined it. While no specific type of provocation is required, slight or remote
provocation is not sufficient. Sufficient provocation may occur over a short or long
period of time.
“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
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 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.”
The jury was also read CALCRIM No. 520 defining murder and CALCRIM No.
521 defining first degree murder under two separate theories: premeditation and
deliberation; and lying in wait.
“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

14
assume jurors are intelligent persons capable of understanding and correlating all the
instructions.” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).)
In People v. Jones (2014) 223 Cal.App.4th 995, Division Four of this district
rejected an identical challenge to CALCRIM Nos. 520, 521, 522, and 570. For the
reasons explained in that opinion, we also reject appellant’s contention. First, appellant
forfeited his argument by failing to object or otherwise request any modification of
CALCRIM No. 522 and 570 in the trial court. (Jones, supra, at p. 1001.) Although
appellant argues he did not forfeit his claim because the court’s erroneous instructions
affected his substantial rights (§ 1259; Hernandez, supra, 183 Cal.App.4th at p. 1331, fn.
2), the instructions accurately set forth the requirements of first degree murder and
provocation (Jones, supra, at p. 1001; see Hernandez, supra, at p. 1334 [“Considering
CALCRIM Nos. 521 and 522 together, the jurors would have understood that
provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this
in turn shows no premeditation and deliberation.”]). Thus, there was no reasonable
likelihood the jury understood the instructions as appellant contends. (Hernandez, supra,
at p. 1332.)4
Further, even if the instructions on provocation were confusing or misleading,
appellant suffered no conceivable prejudice under any standard. (Chapman v. California
(1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]; People v. Watson (1956)
46 Cal.2d 818, 836-837 [reasonable probability of different verdict].) As noted, the jury
was presented with two theories of first degree murder: premeditation and deliberation;
and lying in wait. While the verdict forms did not require the jury to specify a theory of
first degree murder, the jury unanimously found true the special circumstance that
appellant killed his victims while lying in wait. (§ 190.2, subd. (a)(15).) The elements of
first degree murder by lying in wait and the lying-in-wait special circumstance overlap,

4 Appellant also contends that, to the extent his argument was forfeited, his counsel
was deficient for failing to object. But the objection lacks merit, so his counsel was not
deficient for failing to raise it. (People v. Bradley (2012) 208 Cal.App.4th 64, 90.)

15
but the special circumstance also requires a finding of a specific intent to kill, whereas
first degree murder by lying in wait does not. (People v. Superior Court (Bradway)
(2003) 105 Cal.App.4th 297, 309.) Because the jury found the special circumstance
true—including the additional intent-to-kill element—then it necessarily would have also
found him guilty of first degree murder by lying in wait. The instructions on provocation
were irrelevant to that theory: “A murder committed by lying in wait is always first
degree murder. ‘All murder which is perpetrated by means of . . . lying in wait . . . or by
any other kind of willful, deliberate, and premeditated killing . . . is murder of the first
degree.’ (Pen. Code, § 189.) Therefore, if the jury found murder by lying in wait,
provocation was irrelevant because the murder could not be reduced to second degree
murder.” (People v. Battle (2011) 198 Cal.App.4th 50, 75.) Thus, any errors in the
provocation instructions would have had no effect on the jury’s first degree murder
verdict.
4. Sentencing Issues
A. The Gun-use Enhancement Did Not Violate Double Jeopardy.
Appellant contends the additional 50-years-to-life sentence imposed for the gun-
use enhancements (§ 12022.53, subd. (d)) violated double jeopardy principles. But he
acknowledges his argument is foreclosed by People v. Sloan (2007) 42 Cal.4th 110, 122-
123, and People v. Izaguirre (2007) 42 Cal.4th 126, 134, in which our high court rejected
double jeopardy challenges and held enhancements should not be considered elements of
charged offenses when applying the multiple conviction rule. We are bound by these
decisions, so we reject his claim.
B. The Parole Revocation Fine Must Be Stricken.
Appellant contends his $300 parole revocation fine should be stricken because his
sentence does not include a period of parole. (§ 1202.45.) Respondent agrees, as do we.
(People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) We will order the fine
stricken.

16
C. The Multiple-murder Special Circumstance for Count 2 Must Be Stricken.
The jury found two multiple-murder special circumstances true, one for each
murder count. Appellant asks us to vacate the multiple-murder special circumstance
finding for count 2 as superfluous. Respondent agrees. They are correct that there can
only be one multiple-murder special-circumstance finding in a multiple-murder case.
(See People v. Halvorsen (2007) 42 Cal.4th 379, 422.) The remedy is to strike the
finding as to count 2. Appellant’s sentence is not otherwise affected. (People v. Garnica
(1994) 29 Cal.App.4th 1558, 1564 [a single multiple-murder special-circumstance
finding can support multiple sentences of life without parole].)
DISPOSITION
We modify the judgment to strike the parole revocation fine and strike the
multiple-murder special-circumstance finding for count 2. The trial court is directed to
forward the corrected abstract of judgment to the Department of Corrections and
Rehabilitation. We affirm the judgment as modified.

FLIER, J.
WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.

17