People v. Barragan CA2/2

Filed 9/29/20 P. v. Barragan CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B299822

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA071585)
v.

RAFAEL BARRAGAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County. Charles A. Chung, Judge. Affirmed as
modified.

Patricia Ihara, under appointment by the Court of Appeal,
for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
 Following trial, a jury convicted defendant and appellant
Rafael Barragan of one count of murder (Pen. Code, § 187),1
involving the personal use of a deadly weapon, a knife, in
violation of section 12022, subdivision (b)(1). The jury also
convicted defendant of dissuading a witness by personally using
force or a threat of violence, in violation of section 136.1.
The trial court sentenced defendant to 25 years to life in
state prison for murder, plus one year for the personal use
enhancement. It also imposed, but stayed, a four-year upper
term for dissuading a witness. And, the trial court imposed
various fines and assessments.
Defendant timely appealed. He argues: (1) The jury’s
finding of premeditation and deliberation is not supported by
substantial evidence; (2) Trial counsel was ineffective for failing
to request CALJIC No. 8.73; (3) Substantial evidence does not
support defendant’s conviction for dissuading the victim from
reporting a crime by force or threat; (4) The trial court erred in
imposing various fines and assessments without first
determining whether he had the ability to pay them; (5) In the
event the matter is not remanded for an ability to pay hearing,
the abstract of judgment should be corrected to reflect the fees
orally imposed and as set forth in the trial court’s minute order;
and (6) The jury was incorrectly instructed with a modified
version of CALCRIM No. 3426, which precluded the jury from
considering evidence of voluntary intoxication.
The judgment is affirmed. That said, we modify the trial
court’s oral pronouncement of judgment to impose a $40 court
operations assessment (§ 1465.8) and a $30 court criminal
conviction assessment (Gov. Code, § 70303) as to each count, as
correctly reflected in the abstract of judgment.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2
 FACTUAL BACKGROUND
I. Prosecution evidence
On July 1, 2017, defendant’s cousin’s daughter had a
quinceañera party in Lancaster. Defendant, Katrina Barragan2
(Katrina), his 37-year-old wife of 11 years, and Amira Barragan
(Amira), their nine-year-old daughter, went to the party after
dropping off their six-year-old son, Cruz Barragan (Cruz), at his
grandparents’ house for the night. At the party, they sat at a
table with defendant’s older brother’s family. Defendant brought
beer to the table; Amira saw him carry four to eight cans at a
time, although she only saw him drinking one beer and did not
know what happened to all the beer he brought to the table or
whether he offered it to anybody else sitting at the table. Amira
estimated that defendant drank “20 or 19” beers, but admitted
that she did not know how many beers he actually drank. At the
party, Amira did not see defendant walk funny, stumble, yell, or
fall.
Defendant and Katrina danced together at the party.
At some point, defendant suddenly grabbed Katrina’s hand
and left the party, and Amira followed. Defendant seemed angry,
and he argued a bit with Katrina. When they got to defendant’s
truck, Katrina got in the driver’s seat and told defendant that he
could not drive because he was drunk. Defendant became angry
and threw his vest on the ground. He then picked up his vest and
got in the truck on the passenger side, after Katrina drove to
where he was. Defendant and Katrina argued about how Katrina
had left him “on the stupid dance floor.” Katrina said that they
should not be arguing in front of Amira, but defendant said that
he did not care.

2 Because the family members share the same last name, we
refer to them by their first names. No disrespect is intended.

3
 When they arrived home, Katrina told Amira to hide
defendant’s phone and keys. Amira put the phone in Katrina’s
purse and the keys in her own desk. Katrina and Amira went
upstairs to change into their pajamas and to sleep in Cruz’s room,
while defendant put a shirt and shoes on. Right when Katrina
and Amira were about to go to sleep, defendant came into the
room looking angry and asked where his keys were. Katrina sent
Amira to her own room, and defendant and Katrina went to the
kitchen and started arguing. From her room, Amira heard
Katrina saying, “You are the one who wants a divorce.” Katrina
came upstairs, and Amira started crying. Amira told Katrina
that she was crying because she had heard Katrina saying that
defendant wanted a divorce. Katrina said, “No, that’s not true,”
and went back downstairs.
A few minutes later, Amira heard her mother scream and
ran to the top of the stairs. Katrina yelled, “Amira, call 911.”
Amira was unable to see what was happening because someone
had turned off all the lights. Defendant said, “Amira, do not
listen to her.” Amira went back to her room, began walking
around inside her room, sat down on her bed, and then heard
silence. At some point, she came out of her room, started walking
down the stairs, and saw blood everywhere. Katrina lay by the
“foot sitter” in the living room with blood all over the floor, and
defendant was covered “a little bit” with blood. Katrina was not
moving, and defendant was in front of her, saying angrily,
“Katrina, this is rage.” Amira saw a knife on the foot sitter.
Defendant told Amira to go back upstairs, so she went into her
room and barricaded her door out of fear that defendant would
kill her. Amira thought to herself, “What the hell?” because she
did not know what was going on.
It was stipulated that on July 1, 2017, at 11:46 p.m.,
Katrina called 911 from her home phone. During the call,

4
Katrina said, “I need the cops here; I think my husband is going
to stab me.” Katrina gave the dispatcher her home address and
mentioned that her daughter was also there. Defendant asked if
Katrina had called the police, and Katrina initially said, “Yes!”
While crying, Katrina said, “Better stop, Ralph!” and “Don’t!”
Defendant then said, “Put that away! Did you call them?”
Katrina responded, “No, I didn’t!” The call was then
disconnected.
Los Angeles County Sheriff’s Deputy Alberto Rodriguez
responded to the 911 call and arrived at 11:54 p.m. As the
deputy arrived, defendant walked out the front door with his
hands up. Deputy Rodriguez ordered defendant to turn around,
and he complied. Defendant did not stumble or have any
coordination problems. Defendant had a lot of blood on his face
and head. When Deputy Rodriguez asked defendant if it was his
blood and whether he needed medical attention, defendant
replied, “‘No. It’s hers. She asked for it,’” in an angry,
demeaning tone. Defendant’s speech was not slurred in any way,
and he responded quickly.
According to Los Angeles County Sheriff’s Deputy Joseph
Sexton, when he asked defendant whose blood was on him,
defendant replied, “It’s her blood.” When asked to whom
defendant was referring, defendant said, “‘It’s my wife’s blood.’”
Deputy Sexton asked defendant what he had done to her, and
defendant responded that he “‘did what she wanted me to do.’”
Deputy Rodriguez handcuffed defendant and put him in the
back seat of the patrol car; he then asked defendant if he needed
medical attention. Defendant responded, “‘No. F*** you. F***
all of you.’” Deputy Rodriguez, who had been trained to conduct
driving under the influence (DUI) investigations, did not smell
any alcohol on defendant’s breath. Defendant did not slur his
speech, stumble or have difficulty walking, and he immediately

5
obeyed commands and was cooperative. Defendant appeared
angry, but also acted “like nothing just happened” and was “very
coherent.” Similarly, Deputy Sexton did not observe defendant to
be exhibiting any signs of being under the influence of alcohol.
Deputy Rodriguez later saw Amira walking out of the front door
holding a stuffed animal.
When Deputy Sexton entered the house, he saw Katrina
lying in the living room on her back in a pool of blood with a large
laceration to her inner left leg. Katrina had no pulse and felt
cold. Deputy Sexton applied a tourniquet to Katrina’s left leg,
but then was immediately relieved by the Los Angeles County
Fire Department. Amira was removed from the house during a
protective sweep, and she appeared to be in shock.
Deputy Sexton transported defendant to the booking
station; during the 15-minute drive, defendant did not smell of
alcohol, did not vomit or pass out in the car, and did not exhibit
any signs of intoxication. Defendant answered all the booking
questions and followed all instructions when he was
fingerprinted. He was compliant and cooperative, and had no
problems signing forms. Defendant did not appear to be under
the influence of alcohol.
Deputies recovered a knife near the fireplace in the same
area where Katrina lay, a bloody Buck knife with a 4.7-inch long
blade. The bloodstained home phone was next to the knife on a
table, and the receiver of the phone was off the base. A black
empty Buck knife sheath was recovered from the top dresser
drawer “inside of the male closets.” The dresser drawer was
open, and next to it was what appeared to be a firearm.
The cause of Katrina’s death was multiple stab wounds—24
in total, including 14 stab wounds and 10 incise wounds. Three
of the stab wounds were fatal in and of themselves, including one
that entered the right breast, fractured the fifth rib, and went

6
through the right lower lung, diaphragm, and liver. Another
entered the left breast and then the heart. And one entered her
right kidney and liver.
When a forensic identification specialist took photographs
of defendant at about 4:00 a.m. on July 2, 2017, defendant
immediately complied with the orders given to him and had no
difficulty when asked to turn for each photograph. The examiner
did not smell any alcohol on defendant when taking the
photographs. A senior criminalist examined defendant for
injuries. She also swabbed defendant’s nose and chest, where she
observed bloodstains, and came within 12 inches of him. She did
not smell any alcohol on defendant, and when he was ordered to
turn his hands upside down, he complied promptly. Defendant
also complied with orders to put his feet up one by one, and did
not sway in any way.
II. Defense evidence
At the quinceañera party, defendant’s niece and nephew
sat at the same table with defendant’s family. They saw him
make three to five trips for beer, bringing back three cans each
time. Defendant drank about seven to nine cans of beer while
they were there.
According to forensic toxicologist Dr. Rody Predescu, a
person who drank 19 to 20 cans of beer in four hours would have
a blood alcohol content (BAC) of at least .4 percent. If a person
consumed eight to nine beers in four hours, that person would
have a BAC of about .14 to .15 percent. Even though some people
have a higher tolerance for alcohol, their brains are still affected
by it even if they do not exhibit such classic symptoms as slurred
speech and stumbling.
A person with a BAC of .4 percent would be in a stupor or
coma; a person with a BAC of .3 percent would go in and out of
consciousness, be emotionally unstable, and have exaggerated

7
emotions and loss of critical judgment. Under this level of
intoxication, a person’s perception, memory, comprehension, and
cognition would be impaired and accompanied by severe
confusion and unexpected behavior. The person could go into a
rage if provoked. A BAC of .2 percent is pretty close to a BAC of
.3 percent; the brain would be affected. A person with a BAC of
.1 percent may have problems with coordination and be
emotional, but not at the level of someone with a higher BAC.
A person with a BAC of .3 to .38 percent would smell
strongly of alcohol and would not be able to follow commands
promptly or walk straight. If a person had seven to eight beers in
four hours, his BAC would be around .11 to .13 percent 90
minutes later. If a person had three to four beers in four hours,
his BAC would be .03 to .05 percent, or nearly normal, 90
minutes later. A person with a BAC of .03 to .05 percent would
not be so impaired as to go into an alcohol-induced rage. But a
person with a BAC of .16 percent might easily experience an
alcohol-induced rage. Though intoxicated persons may not intend
to do so, they could hurt themselves or others. Whether a person
with a BAC of .16 percent knew what he was actually doing
depended on that person’s level of rage and how much he had
been provoked.
DISCUSSION
I. Substantial evidence of premeditation and deliberation
supports defendant’s first degree murder conviction
Relying primarily upon evidence that he was drinking
before he murdered Katrina, defendant contends that the jury’s
finding of premeditation and deliberation was not supported by
sufficient evidence.
A. Standard of review
“The proper test for determining a claim of insufficiency of
evidence in a criminal case is whether, on the entire record, a

8
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence. [Citation.]”
(People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) “The same
standard applies when the conviction rests primarily on
circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23
Cal.4th 978, 1053.) “An appellate court must accept logical
inferences that the jury might have drawn from the
circumstantial evidence. [Citation.]” (People v. Maury (2003) 30
Cal.4th 342, 396.)
Because we begin with the presumption that the evidence
was sufficient, it is the appellant who bears the burden of
convincing the court otherwise. (People v. Hamlin (2009) 170
Cal.App.4th 1412, 1430.) Reversal on a substantial evidence
ground is unwarranted unless it appears that upon no hypothesis
whatever is there sufficient substantial evidence to support the
conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Relevant law
“‘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.]’ [Citation.] ‘“Premeditation and
deliberation can occur in a brief interval. ‘The test is not time,
but reflection. “Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at
quickly.”’” [Citation.]’ [Citations.]” (People v. Solomon (2010) 49
Cal.4th 792, 812.)
People v. Anderson (1968) 70 Cal.2d 15 (Anderson)
“discusses three types of evidence commonly shown in cases of

9
premeditated murder: planning activity, preexisting motive, and
manner of killing. [Citation.] Drawing on these three categories
of evidence, Anderson provided one framework for reviewing the
sufficiency of the evidence supporting findings of premeditation
and deliberation. In so doing, Anderson’s goal ‘was to aid
reviewing courts in assessing whether the evidence is supportive
of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere
unconsidered or rash impulse.’ [Citation.] But, as we have often
observed, ‘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.’ [Citations.]” (People v. Solomon, supra, 49 Cal.4th
at p. 812.)
Regarding premeditation and deliberation, “The true test is
not the duration of time as much as it is the extent of the
reflection.” (People v. Thomas (1945) 25 Cal.2d 880, 900; see also
People v. Koontz (2002) 27 Cal.4th 1041, 1080; People v. Mayfield
(1997) 14 Cal.4th 668, 767, overruled in part on other grounds in
People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) “Thoughts may
follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.” (People v. Thomas, supra,
at p. 900.) Thus, a killing resulting from preexisting reflection, of
any duration, is readily distinguishable from a killing based on
unconsidered or rash impulse. (Ibid.)
C. Analysis
Ample evidence supports the jury’s finding of deliberation
and premeditation. Viewing the evidence in the light most
favorable to the judgment, defendant’s deliberate and conscious
choice to kill Katrina is demonstrated by his threat to stab her
during their argument, followed by him going upstairs and
retrieving his Buck knife from the dresser, and then doing

10
exactly what he said he would do—stab her. Indeed, Katrina
called 911, presumably while defendant was in the process of
retrieving the knife, and asked for help because she thought
defendant was going to stab her.
Notably, during the 911 call, Katrina twice warned
defendant to stop, thereby giving him the chance to reflect on his
actions. (See People v. Harris (2008) 43 Cal.4th 1269, 1287 [the
defendant had time to deliberate and premeditate during the
time it took a witness to go from the door to the service window
and to take and prepare the defendant’s order].) Yet it appears
that her call to 911 further motivated defendant to stab Katrina,
either to prevent her from continuing her 911 call or to punish
her for calling the police.
Urging us to reverse, defendant relies upon a
postconviction victim impact statement and contends that the
“undisputed facts” establish that he killed Katrina in a drunken
rage. The appellate record shows otherwise. As set forth above,
although defendant may have been drinking at the party, he was
not drunk. Law enforcement arrived at the residence eight
minutes after Katrina’s 911 call, and neither Deputy Rodriguez
nor Deputy Sexton, who observed and were in close contact with
defendant, testified that defendant either smelled of alcohol or
exhibited any signs of intoxication. In fact, as defendant seems to
acknowledge, his behavior after the stabbing—going to the
kitchen to wash his hands and then going upstairs to change or
put clothes on, and then going outside the house with hands up
when the police arrived—belies his claim that he was drunk at
the time he killed Katrina.
Defendant also points to evidence that he was angry when
he left the party because Katrina had left him on the dance floor,
when she refused to let him drive home and when she refused to
give him his keys so he could leave the house after they got home.

11
Yet after coming home, Amira testified that she and Katrina
changed into their pajamas and were about to go to bed before
defendant entered the room and asked for his keys. At this point,
Katrina told Amira to go to her own room, and Katrina went
downstairs to the kitchen, where she and defendant argued.
It was at around 11:46 p.m., about an hour after they had
returned home, that Katrina called 911 and said that she needed
the police to come because she thought defendant was going to
stab her. Thus, sufficient time had lapsed from when he was
angry at the party to when he made the decision to stab Katrina
to establish premeditation and deliberation.
Relying upon the Anderson factors, defendant argues that
there was insufficient evidence that he premeditated and
deliberated killing his wife. Aside from the fact that the
Anderson factors are not exclusive (People v. Koontz, supra, 27
Cal.4th at p. 1081; People v. Brooks (2017) 3 Cal.5th 1, 58–59),
they tip in favor of the judgment of conviction here. First, there
is evidence that defendant planned to kill Katrina. As defendant
acknowledges, he threatened to stab her before he actually did so.
(People v. San Nicolas (2004) 34 Cal.4th 614, 668 [evidence of
prior threats admissible to show the defendant’s state of mind];
People v. Lang (1989) 49 Cal.3d 991, 1015–1016 [evidence of prior
threats is relevant and admissible to prove intent to kill].) He
then went upstairs and retrieved his Buck knife from a dresser
drawer. (People v. Wright (1985) 39 Cal.3d 576, 593, fn. 5
[obtaining a deadly weapon in advance of a killing supports an
inference of planning activity]; People v. Wharton (1991) 53
Cal.3d 522, 547 [evidence suggested that the defendant removed
a hammer (the murder weapon) from his toolbox in advance for
the purpose of killing the victim].)
Second, there is evidence of defendant’s motive. Contrary
to defendant’s argument that “‘being mad at someone’ is not

12
substantial evidence of a motive to kill”, a killing can be
motivated by anger. (People v. Arcega (1982) 32 Cal.3d 504, 519;
People v. Lunafelix (1985) 168 Cal.App.3d 97, 99, 102.)
Third, the manner of killing shows that defendant intended
to kill Katrina. He brutally stabbed her 24 times. (People v.
Harris, supra, 43 Cal.4th at p. 1287; People v. Pride (1992) 3
Cal.4th 195, 247.) And the nature of at least three of the
wounds—deep, plunging stab wounds placed in critical regions
and with enough force to fracture a rib—suggests that they were
intentionally inflicted upon Katrina, not made in a frenzy.
Finally, to the extent defendant contends that the jury
improperly relied upon the prosecutor’s closing argument, as
opposed to the evidence presented, we are not convinced. We
agree with defendant that the prosecutor’s argument is not
evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1126.) But
there is no indication that the jury relied on anything but
admissible evidence when it reached its verdict.
II. Trial counsel was not ineffective for failing to request CALJIC
No. 8.73
Defendant contends that his trial counsel was ineffective
for failing to request CALJIC No. 8.73 on provocation, which
reduces first degree murder to second degree murder.
A. Procedural background
The jury was instructed with the newer CALCRIM
instructions, not the older CALJIC instructions. In particular,
the jury was instructed with CALCRIM Nos. 500 (Homicide:
General Principles), 520 (First or Second Degree Murder With
Malice Aforethought), 521 (First Degree Murder), and 570
(Voluntary Manslaughter: Heat of Passion—Lesser Included
Offense). The jury was also instructed on voluntary intoxication.

13
 Defense counsel did not request CALJIC No. 8.733 or
CALCRIM No. 522.4
B. Relevant law
Because CALJIC No. 8.73 and CALCRIM No. 522 are
pinpoint instructions, defendant was obligated to request that
one be given; the trial court did not have a sua sponte duty to
give it. (People v. Rogers (2006) 39 Cal.4th 826, 878–879.) Thus,
defendant argues that his trial counsel was ineffective for failing
to request that one of these instructions be given.
To successfully assert a claim of ineffective assistance of
counsel, a defendant must demonstrate that counsel’s
representations fell below an objective standard of
reasonableness, and but for counsel’s errors there is a reasonable
probability that the result of the proceeding would have been
different. (Strickland v. Washington (1984) 466 U.S. 668, 688,
694; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled in

3 CALJIC No. 8.73 provided, in relevant part: “If the
evidence establishes that there was provocation which played a
part in inducing an unlawful killing of a human being, but the
provocation was not sufficient to reduce the homicide to
manslaughter, you should consider the provocation for the
bearing it may have on whether the defendant killed with or
without deliberation and premeditation.”

4 CALCRIM No. 522 provides, in relevant part: “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.]”

14
part on other grounds in People v. Hill (1998) 17 Cal.4th 800,
822–823.)
“‘“Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a ‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.’” [Citations.] “[W]e accord great deference to
counsel’s tactical decisions” [citation], and we have explained that
“courts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight” [citation]. “Tactical
errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available
facts.” [Citation.] [¶] 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. [Citations.]’ [Citation].” (People v. Jones
(2003) 29 Cal.4th 1229, 1254.)
C. Analysis
1. Habeas corpus
As defendant points out, claims of ineffective assistance of
counsel are often best litigated in a habeas corpus proceeding.
Our Supreme Court has “repeatedly stressed ‘that “[if] the record
on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply
could be no satisfactory explanation,” the claim on appeal must
be rejected.’ [Citations.] A claim of ineffective assistance in such
a case is more appropriately decided in a habeas corpus
proceeding. [Citation.] ‘We recommended in [People v. Pope
(1979) 23 Cal.3d 412] that, “[t]o promote judicial economy in
direct appeals where the record contains no explanation,

15
appellate counsel who wish to raise the issue of inadequate trial
representation should join a verified petition for writ of habeas
corpus.”’ [Citations.] Because claims of ineffective assistance are
often more appropriately litigated in a habeas corpus proceeding,
the rules generally prohibiting raising an issue on habeas corpus
that was, or could have been raised on appeal [citations] would
not bar an ineffective assistance claim on habeas corpus.” (People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)
According to defendant, his claim of ineffective assistance
of counsel can be raised on appeal because there could be no
satisfactory explanation for his trial counsel’s failure to request
either of these instructions. For the reasons set forth below, we
cannot agree. It follows that we reject defendant’s claim of
ineffective assistance of counsel on the grounds that (1) this claim
should have been brought in a habeas corpus proceeding, and
(2) in any event, he did not receive ineffective assistance of
counsel.
2. No ineffective assistance of counsel
Trial counsel appears to have had a rational, tactical
reason for not requesting either CALCRIM No. 522 or CALJIC
No. 8.73. The jury was instructed on voluntary manslaughter
with CALCRIM No. 570, which stated that 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. Specifically, the instruction stated: “The
defendant killed someone because of a sudden quarrel or in the
heat of passion if: [¶] 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.”

16
 Based on this instruction, defense counsel argued that
defendant was guilty of voluntary manslaughter, not murder.
Contrary to what defendant claims, trial counsel did not
acknowledge that Katrina’s provocation of refusing to give
defendant his car keys “may not have been the objectively
reasonable provocation required for heat of passion/voluntary
manslaughter.” Rather, counsel argued that the jury should
assess defendant’s actions from the perspective of a person who
had drank the same amount of alcohol as defendant had:
“Rage. Rage. We were told by the expert that, yes, people
who are drunk can have rage. Nobody knows what ticks them
off. Refusing to give a man’s car keys is ridiculous to you and me.
It is absolutely ridiculous but with somebody that is under the
influence of alcohol and drunk, it may not be that ridiculous.
They said, well, you have to look at what the average person did
but did the average person dr[i]nk the same amount of alcohol
that he did in that same situation? That’s the thing that you
have to look at. You have to look at the evidence. You have to
look at what was said to us here.”
In other words, rather than request CALJIC No. 8.73 or
CALCRIM No. 522, which, if given, would have only directed the
jury to consider whether provocation caused the murder to be
first or second degree, i.e., whether it was premeditated or
unpremeditated, trial counsel argued that defendant was only
guilty of voluntary manslaughter. Defense counsel could have
reasonably chosen not to request an instruction that presumed
“the provocation was not sufficient to reduce the homicide to
manslaughter,” in light of the trial court’s instructing with
CALCRIM No. 570 that provocation could do so. This is
especially true since the trial court also instructed on voluntary
intoxication (CALCRIM No. 625), which trial counsel’s defense

17
focused on, and which he argued negated intent to kill and/or
premeditation and deliberation.
Therefore, no deficient performance has been shown.
3. No prejudice
Even if trial counsel had performed deficiently in failing to
request either CALCRIM No. 522 or CALJIC No. 8.73, defendant
was not prejudiced. By returning a verdict of first degree murder
under properly given instructions, the jury necessarily rejected
defendant’s voluntary intoxication defense as well as the theory
that he was provoked to act rashly and without premeditation
and deliberation. In other words, the jury necessarily rejected
defendant’s theory of the events and resolved the factual question
posed by the missing instruction adversely to him. (See People v.
Mincey (1992) 2 Cal.4th 408, 438; see also People v. Wharton,
supra, 53 Cal.3d at p. 572 [“By finding defendant was guilty of
first degree murder, the jury necessarily found defendant
premeditated and deliberated the killing. This state of mind,
involving planning and deliberate action, is manifestly
inconsistent with having acted under the heat of passion”].)
Moreover, as set forth above, the evidence overwhelmingly
supported the jury’s verdict. Therefore, any error in failing to
request CALJIC No. 8.73 or CALCRIM No. 522 was harmless
because there is no reasonable probability that had the
instruction been requested by defense counsel and given by the
trial court, defendant would have been convicted of second degree
murder.
III. Substantial evidence supports defendant’s conviction for
dissuading the victim from reporting a crime by force or threat of
violence
Defendant contends that his conviction for dissuading
Katrina from reporting a crime by force or threat must be
reversed because “[t]here was no evidence that [he] had the

18
specific intent to dissuade or prevent Katrina from reporting the
volatile situation when he told her to put the phone down, or that
he used force to stop her from calling the police.”5
A. Relevant law and standard of review
Section 136.1 prohibits intimidation of witnesses or
victims.6 Specifically, subdivision (a) prohibits “knowingly and
maliciously” preventing or dissuading a witness from attending
or giving testimony at any trial or other proceeding authorized by
law, or attempting to dissuade a witness. (§ 136.1, subds. (a)(1)
& (a)(2).) Subdivision (c)(1) is violated when a defendant does an
act specified in subdivision (a) and “the act is accompanied by
force or by an express or implied threat of force or violence, upon
a witness or victim or any third person or the property of any
victim, witness, or any third person.” (§ 136.1, subd. (c)(1).) As
used in section 136.1, “‘[m]alice’ means an intent to vex, annoy,
harm, or injure in any way another person, or to thwart or
interfere in any manner with the orderly administration of
justice.” (§ 136, subd. (1).)
A threat need not actually deter or reach the witness
because the offense is committed when the defendant makes the
attempt to dissuade the witness. Section 136.1, subdivision (d),
provides: “Every person attempting the commission of any act
described in subdivisions (a), (b), and (c) is guilty of the offense
attempted without regard to success or failure of the attempt.
The fact that no person was injured physically, or in fact

5 We reach the merits of this argument even though
defendant’s sentence on this count was stayed pursuant to
section 654.

6 Defendant rightly points out that intimidation is not an
element of the offense. (People v. Neely (2004) 124 Cal.App.4th
1258, 1261, 1266.)

19
intimidated, shall be no defense against any prosecution under
this section.”
We review the conviction for substantial evidence. (See
Jones, supra, 51 Cal.3d at p. 314.)
B. Substantial evidence supports the jury’s finding that
defendant sought to prevent or dissuade Katrina from reporting
him to the police
Substantial evidence supports defendant’s conviction.
Here, the transcript of Katrina’s 911 call shows that she called
the police to request assistance because she thought that
defendant was going to stab her. Therefore, at the point she
made the call, defendant had already threatened her. Defendant
then retrieved his knife, returned, and asked Katrina if she had
called the police. She initially answered yes, while telling him to
stop. Defendant asked a second time, which raised a reasonable
inference that he did not believe Katrina’s first answer or
actually noticed the call. Either in response to defendant’s
increasing anger and/or his threatening behavior with the knife,
she denied having called the police, and then the call was
disconnected.
This evidence establishes that defendant menaced Katrina
with the knife while asking her whether she had called the police,
thereby using fear to attempt to dissuade her from continuing her
ongoing conversation with the 911 operator or from further
reporting defendant’s conduct to law enforcement. (Cf. People v.
Mendoza (1997) 59 Cal.App.4th 1333, 1344, superseded in part by
statute as stated in People v. Franz (2001) 88 Cal.App.4th 1426,
1442 [words or actions attempting to cause someone not to report
a crime may show defendant attempted to dissuade them from
making a report]; see also People v. McElroy (2005) 126
Cal.App.4th 874, 882 [intentionally blocking a victim’s or a
witness’s access to a telephone can constitute an attempt to

20
prevent the victim or witness from making a police report for
purposes of section 136.1].)
Urging us to reverse, defendant contends he did not stab
Katrina to stop her from calling 911, and claims that the
prosecutor argued “inconsistent theories” about the 911 call. The
prosecution did not have to prove that defendant stabbed Katrina
to prevent her from talking to police or the 911 operator. Instead,
it was sufficient that defendant confronted Katrina in a menacing
manner with a knife to dissuade her from calling police or
completing her ongoing 911 call.
In any event, it was perfectly reasonable for the jury to
infer that defendant had separate yet simultaneous intents or
motives to stab Katrina; he had already planned to kill her out of
anger and then was additionally motivated to do so to prevent
her from completing her ongoing 911 call or from further
reporting his conduct to police. (Cf. People v. Latimer (1993) 5
Cal.4th 1203, 1216 [multiple punishment not barred in a case
where there are different yet simultaneous intents].)
Because appellant specifically intended to prevent Katrina
from completing her 911 call by threatening and/or stabbing her
with his knife, substantial evidence supports his conviction on
count 2 for dissuading a victim from reporting a crime by force or
fear.
IV. The trial court did not err in imposing a restitution fine and
various assessments against defendant
Defendant argues that pursuant to People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), the trial court violated his
constitutional rights by imposing various fines and assessments
without first determining whether he had the ability to pay them.
A growing number of courts of appeal have questioned the
correctness of the newly announced constitutional principle
enunciated in Dueñas, including this division, and the question is

21
now before the California Supreme Court. (See, e.g., People v.
Hicks (2019) 40 Cal.App.5th 320, 322 (Hicks), review granted
Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th
1055, 1067–1069; People v. Kopp (2019) 38 Cal.App.5th 47, 81–
83, review granted Nov. 13, 2019, S257844.) In Hicks, we fully
explained our reasoning that Dueñas was incorrectly decided and
we stand by that analysis.
It follows that defendant did not receive ineffective
assistance of counsel for failing to raise this issue at sentencing.
Alternatively, defendant argues that in the event the
matter is not remanded for an ability to pay hearing, the abstract
of judgment should be corrected to reflect the fees orally imposed
at the sentencing hearing and as set forth in the trial court’s
minute order. The People do not respond to this point in the
respondent’s brief.
Defendant is correct that ordinarily “[w]here there is a
discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral
pronouncement controls. [Citations].” (People v. Zackery (2007)
147 Cal.App.4th 380, 385.) This principle does not apply where
the trial court did not orally pronounce the correct, statutorily
mandated assessments. (People v. Sencion (2012) 211
Cal.App.4th 480, 483–484 [where the trial court failed to orally
impose a $30 court facilities assessment or a $40 court security
fee, the Court of Appeal modified the oral pronouncement of
judgment to impose such fees as to each count].)
In the instant case, at the sentencing hearing, the trial
court ordered defendant to pay a $40 court security fee and a $30
court facilities assessment. That was error; the trial court should
have ordered those fees to be imposed as to each count for which
defendant was convicted, even if the sentence as to one of those
counts was stayed. (People v. Sencion, supra, 211 Cal.App.4th at

22
p. 484.) That said, the abstract of judgment correctly orders
defendant to pay a court security fee of $80 and a criminal
conviction assessment of $60 ($40 and $30 as to each count,
respectively). Under these circumstances, we do not need to
correct the abstract of judgment. Rather, we modify the oral
pronouncement of judgment to impose a $40 court security fee
(court operations assessment), pursuant to section 1465.8, and a
$30 criminal conviction assessment, pursuant to Government
Code 70303, as to each count, as correctly reflected in the
abstract of judgment.
V. Defendant was not prejudiced by the trial court’s instruction of
a modified version of CALCRIM No. 3426
In a supplemental brief, defendant contends that the trial
court incorrectly instructed the jury with a modified version of
CALCRIM No. 3426, which precluded the jury from considering
evidence of voluntary intoxication as to whether he acted with
premeditation and deliberation.
A. Procedural background
Prior to closing arguments, the trial court indicated that
the parties had discussed the jury instructions and agreed that
murder and dissuading a witness were specific intent crimes, and
that the lesser crimes as to the murder count were second degree
murder and voluntary manslaughter based on heat of passion.
The trial court indicated that it had given the attorneys jury
instruction packets “that we discussed over the lunch hour.”
When asked if there were any instructions that he was objecting
to, or whether there were any instructions the court was failing
to give that he was requesting, defense counsel stated, “No, Your
Honor.” Defense counsel then asked whether “[t]hese things you
just handed us, these are the additions?”, to which the trial court
responded, “Correct. Back in chambers I told you I would make

23
certain changes and I would get those to you and I have gone
ahead and done that.”
Accordingly, the trial court instructed the jury with
CALCRIM No. 625, which allowed the jury to consider evidence
of defendant’s voluntary intoxication in deciding whether he
acted with an intent to kill, acted with deliberation and
premeditation, or intended to prevent a victim from reporting a
crime. The jury was instructed on the definition of voluntary
intoxication, and the instruction concluded by saying, “You may
not consider evidence of voluntary intoxication for any other
purpose.”
The jury was separately instructed on voluntary
intoxication with CALCRIM No. 3426, which gave the same
definition of voluntary intoxication, but instructed the jury that it
could consider such evidence “only in deciding whether the
defendant acted with the intent to kill or the intent to prevent a
victim from making a police report.” (Emphasis omitted.) It
further instructed the jury that “[i]n connection with the charge
of murder, the People have the burden of proving beyond a
reasonable doubt that the defendant acted [or failed to act] with
the intent to kill. [¶] If the People have not met this burden, you
must find the defendant not guilty of murder and lesser crime
thereto.” (Emphasis omitted.)
B. Forfeiture
Even though he was given the opportunity to review the
jury instructions and object and/or request any modifications or
changes, defense counsel did not object to CALCRIM No. 3426. It
follows that he has forfeited his current claim of error on appeal.
(People v. Battle (2011) 198 Cal.App.4th 50, 64–65 [“‘Failure to
object to instructional error forfeits the issue on appeal unless the
error affects defendant’s substantial rights. [Citations.] The

24
question is whether the error resulted in a miscarriage of
justice’”].)
C. There was no prejudicial error
For the sake of completeness, we will reach the merits of
defendant’s argument.
Defendant is making a claim of conflicting or ambiguous
jury instructions. When we review such a claim, the inquiry is
whether there is a reasonable likelihood that the jury applied the
challenged instruction in a way that violates the Constitution.
(People v. Smithey (1999) 20 Cal.4th 936, 963.) Jury instructions
are not considered in isolation, but rather in the context of the
entire charge and the arguments of the parties. (People v. Young
(2005) 34 Cal.4th 1149, 1202; People v. Smithey, supra, at
pp. 963–964.) In other words, we “review the instructions as a
whole to determine whether it is ‘reasonably likely the jury
misconstrued the instructions as precluding it from considering’
the intoxication evidence.” (People v. Mendoza (1998) 18 Cal.4th
1114, 1134.) Instructional error is reviewed de novo. (People v.
Posey (2004) 32 Cal.4th 193, 218.)
Here, it is possible that the jury was confused by the
apparent conflict between CALCRIM No. 625, which correctly
instructed the jury that voluntary intoxication could be
considered on the issues of whether defendant intended to kill
and whether he deliberated and premediated, and CALCRIM
No. 3426, which told the jury that voluntary intoxication could
only be considered when deciding whether the defendant acted
with the intent to kill or the intent to prevent a victim from
making a police report.
But, we need not decide whether the trial court erred
because we find that any error was harmless under any
applicable standard. (People v. Watson (1956) 46 Cal.2d 818, 836
[reasonable probability standard for state law error]; Chapman v.

25
California (1967) 386 U.S. 18, 24 [stricter beyond-a-reasonable-
doubt standard for federal constitutional error].)
There was ample evidence that defendant was not
intoxicated at the time he brutally stabbed Katrina to death. The
crime occurred over an hour after the family came home from the
party. And, Katrina’s 911 call indicates that defendant
threatened to stab his wife, then went upstairs to retrieve his
Buck knife before returning downstairs, asked Katrina whether
she had called the police, and then stabbed her 24 times, despite
her twice telling him to stop. Moreover, neither Deputy
Rodriguez nor Deputy Sexton smelled alcohol on defendant or
noticed that he was exhibiting signs of intoxication. In fact,
defendant notes that his behavior after the stabbing—going to
the kitchen to wash his hands, going upstairs to change or put
clothes on, and then calmly going outside the house with his
hands up when police arrived—belies his claim that he was
drunk at the time he murdered his wife. Defendant even told
police that Katrina had “‘asked for it.’”
While defendant may have been drinking earlier at the
party, he was not drunk to the point where he could not
premeditate and deliberate the killing of his wife. Thus, the
evidence contradicts defendant’s claim that he was acting
impulsively or irrationally as a result of alcohol intoxication
when he stabbed Katrina.
In light of this overwhelming evidence, even if there had
been instructional error, any error was harmless. (People v.
Collie (1981) 30 Cal.3d 43, 62 [verdict of premeditation and
deliberation entails a specific intent to kill and thus instructional
error harmless].)
VI. Cumulative error
Finally, defendant contends that the cumulative effect of
the errors in this case requires reversal of his murder conviction.

26
As set forth above, there were no prejudicial errors to
accumulate. A defendant is entitled to a fair trial, not a perfect
one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) He
received one here.
DISPOSITION
The oral pronouncement of judgment is modified to impose
a $40 court operations assessment (§ 1465.8) and a $30 criminal
conviction assessment (Gov. Code, § 70373) as to each count. As
modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
HOFFSTADT

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