People v. Lo CA1/5

Filed 12/7/21 P. v. Lo CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
A159307
Plaintiff and Respondent,
v. (Solano County
Super. Ct. No. FCR328007)
CAMDEN LO,
Defendant and Appellant.

Camden Lo (appellant) appeals his conviction, following a jury trial, of
the first degree murder of his estranged wife. (Pen. Code, § 187.)1 We
conclude the finding of premeditation and deliberation lacks substantial
evidence, and accordingly reduce the murder to second degree. We reject
appellant’s other contentions.

1 All undesignated section references are to the Penal Code.

1
 BACKGROUND
Stanley Lo, the son of appellant and the victim Wen Ying Lo, was 20
years old when he testified at trial.2 When Stanley was growing up, his
parents owned a restaurant. Appellant worked long hours at the restaurant;
Wen Ying worked there part time and also cared for the children. Appellant
and Wen Ying argued a few times a month, with some of the arguments
lasting several days. Stanley’s understanding was that his mother was angry
with his father for gambling and buying things, and his father was angry
that his mother would not let him spend money the way he wanted.
During these arguments, Wen Ying loudly shouted at appellant and
sometimes threw things at him, including a television remote and cups.
Appellant typically did not shout at Wen Ying, and Stanley never saw him
throw anything at her; instead, appellant’s response was to retreat. When
Stanley was in middle school, Wen Ying got angry with Stanley and swung a
sword at him, striking him on the arm. On another occasion, she threatened
a neighbor with a meat cleaver when the neighbor complained about the
noise from her chopping meat.
In 2015, appellant and Wen Ying separated. Appellant stayed in the
family home, while Wen Ying and the children moved in with her sister in
southern California. Appellant filed for divorce the same year. After the
separation, they continued to argue over the phone. Appellant told Stanley
he was having trouble running the restaurant by himself and Wen Ying was
taking money from the business. In 2016, Wen Ying became angry with
Stanley, broke in his locked bedroom door, and hit him on the head multiple

2 For convenience, we refer to Stanley Lo and Wen Ying Lo by their
first names. No disrespect is intended. Appellant and Wen Ying also had an
adult daughter; she did not testify.

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times. Because of this incident, Stanley moved back in with appellant.
Appellant again told Stanley he was having a hard time running the
restaurant by himself, and Wen Ying was taking money from the restaurant.
Stanley heard appellant angrily shouting at Wen Ying on the phone.
On February 9, 2017, the night before appellant and Wen Ying had a
settlement conference in their divorce proceeding, Wen Ying called 911.3 She
was outside the family home, where appellant and Stanley were living; she
told the dispatcher appellant had changed the locks and was not home, and
she had a right to stay at the house that night. A few hours later, Wen Ying
returned when Stanley and appellant were home. She called Stanley, angry
and yelling that she wanted to get her belongings from the house. Appellant
told Stanley he did not want to let Wen Ying in because he was afraid of her.
Stanley gave his phone to appellant and heard his parents arguing on the
phone. After they got off the phone, Wen Ying remained in front of the house
yelling for about 30 minutes.
Appellant and Wen Ying attended the settlement conference the next
morning. Wen Ying’s divorce lawyer testified that, prior to the settlement
conference, the parties had filed a joint settlement conference statement
identifying disputed issues including whether Wen Ying owed appellant
reimbursement for half of the tax penalties paid by the restaurant, whether a
foreign property titled in Wen Ying’s name was community property, and
whether Wen Ying owed the community more than $375,000 she claimed had
been used to repay loans from her sister. Wen Ying’s attorney testified
appellant seemed calm and not angry at the settlement conference. After the
settlement conference, the parties and their attorneys discussed Wen Ying

3A recording of the call was played for the jury and a transcript was
provided.

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getting her personal property from the house. Wen Ying wanted her attorney
to accompany her but her attorney refused; instead the parties agreed that
Wen Ying would go to the house at 4:00 p.m. that day and only Stanley would
be at the house.
Later that day, Stanley went to the restaurant after school. He arrived
around 3:30 p.m. and ate. Appellant seemed sad and on the verge of tears,
and said something about “losing in court.” A little after 4:00 p.m., Wen Ying
called Stanley, angry and asking why he and appellant were not at the house
to let her in. Stanley told appellant, who reluctantly left for the house five or
ten minutes later. Stanley had not been told about the agreement discussed
at court that morning. Stanley did not leave with appellant because he was
still eating, but left about 10 or 20 minutes later. It took about 30 minutes to
drive from the restaurant to the house.
Around 5:00 p.m., a neighbor who lived across the street and a few
houses down heard a woman screaming. At trial, she testified the scream
lasted five to ten minutes, came from across the street in the direction of
appellant’s house, and sounded like “Help me!” or “Elp!” On the night of the
incident, she told a responding officer the scream was less than a minute
long, she could not tell which direction it came from, and she did not recall
hearing any words.
When Stanley arrived at the house, his mother’s car was there but his
father’s was not. Appellant pulled in seconds later, started crying
hysterically, and told Stanley he had killed Wen Ying. He told Stanley not to
go into the garage. Stanley went into the garage and saw his mother on the
floor with a knife on top of her body. He had never seen the knife before,
either in the house or at the restaurant. Appellant retrieved keys, cash, and
a box containing three watches, and told Stanley to keep them. They drove

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back to the restaurant in appellant’s car. On the way, appellant seemed calm
and made a few phone calls, including one to a relative in law enforcement,
who in turn reported the crime. The police soon arrived at the restaurant.
An autopsy of Wen Ying revealed a fatal stab wound to her left chest,
two nonfatal stab wounds to her upper abdomen, a nonfatal stab wound to
her left leg, and a cut on one finger. Appellant had cuts and bruises on his
hands that could have been defensive or offensive wounds, and an abrasion
on his left chest indicative of blunt force trauma. Wen Ying had appellant’s
DNA under her fingernails and on the skin of her right hand. Wen Ying’s
blood was on the blade of the knife and her DNA was on the knife’s handle.
Appellant’s DNA was not identified anywhere on the knife.
The jury convicted appellant of first degree murder and found true an
allegation that he personally used a deadly weapon, a knife, during the
murder. (§§ 187, subd. (a), 12022, subd. (b)(1).) The trial court sentenced
appellant to a prison term of 25 years to life.
DISCUSSION
I. Premeditation and Deliberation
Appellant argues insufficient evidence supports the jury verdict finding
of premeditation and deliberation.4 We agree.
A. Legal Background
“In evaluating a claim that a conviction lacks sufficient evidence, ‘ “we
review the whole record to determine whether . . . [there is] substantial
evidence to support the verdict . . . such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the

4 This was the only theory of first degree murder presented to the jury.

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prosecution and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.” ’ ” (People v.
Wear (2020) 44 Cal.App.5th 1007, 1019 (Wear).)
Murder is the unlawful killing of a person with malice aforethought.
(§ 187, subd. (a).) First degree murder is murder committed by certain
enumerated means including, as relevant here, a “willful, deliberate, and
premeditated killing.” (§ 189, subd. (a).) “ ‘The very definition of
“premeditation” encompasses the idea that a defendant thought about or
considered the act beforehand.’ [Citation.] ‘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.” [Citation.]’
[Citation.]” ’ [Citation.] Thus, ‘ “[a]n intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.” ’ ” (People v. Boatman (2013) 221
Cal.App.4th 1253, 1264 (Boatman).) However, “ ‘ “ ‘[t]he process of
premeditation and deliberation 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 . . . .” ’ ” ’ ” (Id. at p. 1265.)
There is a “ ‘presumption that an unjustified killing of a human being
constitutes murder of the second, rather than of the first, degree,’ ” and
therefore “ ‘[a reviewing court] must determine in any case of circumstantial
evidence whether the proof is such as will furnish a reasonable foundation for
an inference of premeditation and deliberation [citation] or whether it “leaves
only to conjecture and surmise the conclusion that defendant either arrived at
or carried out the intention to kill as the result of a concurrence of
deliberation and premeditation.” ’ ” (Ibid.)

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 In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the Supreme
Court “ ‘developed guidelines to aid reviewing courts in assessing the
sufficiency of evidence to sustain findings of premeditation and deliberation.’
[Citation.] Anderson observed that the evidence typically found sufficient to
support such findings ‘ “falls into three basic categories: (1) facts about how
and what [the] defendant did prior to the actual killing which show that the
defendant was engaged in activity directed toward, and explicable as
intended to result in, the killing—what may be characterized as ‘planning’
activity; (2) facts about the defendant’s prior relationship and/or conduct with
the victim from which the jury could reasonably infer a ‘motive’ to kill the
victim, which inference of motive, together with facts of type (1) or (3), would
in turn support an inference that the killing was the result of ‘a pre-existing
reflection’ and ‘careful thought and weighing of considerations’ rather than
‘mere unconsidered or rash impulse hastily executed’ [citation]; [and] (3) facts
about the nature of the killing from which the jury could infer that the
manner of killing was so particular and exacting that the defendant must
have intentionally killed according to a ‘preconceived design’ to take his
victim’s life in a particular way for a ‘reason’ which the jury can reasonably
infer from facts of type (1) or (2).” ’ [Citation.] [¶] Anderson observed that
‘ “[a]nalysis of the cases will show that this court sustains verdicts of first
degree murder typically when there is evidence of all three types and
otherwise requires at least extremely strong evidence of [planning] or
evidence of [motive] in conjunction with [evidence of] either [planning] or
[manner of killing].” ’ ” (Wear, supra, 44 Cal.App.5th at pp. 1023–1024.)
However, the Supreme Court has noted “that Anderson’s ‘guidelines are
descriptive and neither normative nor exhaustive, and that reviewing courts

7
need not accord them any particular weight.’ ” (Id. at p. 1024, quoting People
v. Halvorsen (2007) 42 Cal.4th 379, 420.)
B. Analysis
Appellant argues this case is similar to Wear. In Wear, the defendant
took a friend to meet the victim, “apparently intend[ing] to buy or steal a gun
from [the victim] and possibly to supply him with heroin. The evidence
suggested that an argument arose during the meeting, and [the victim], who
had two guns with him, shot [the friend] once with one of them. [The
defendant], who was unarmed, then seized that gun, shot [the victim] twice
with it, and fled with the other gun.” (Wear, supra, 44 Cal.App.5th at
pp. 1009–1010.) The defendant was convicted of first degree murder. (Id. at
p. 1010.) The Court of Appeal held there was insufficient evidence of
premeditation and deliberation. (Id. at pp. 1023–1032.) Circumstances
supporting a finding that the defendant “planned to obtain a gun from [the
victim], do not, in and of themselves, support a reasonable inference that [the
defendant] planned to kill [the victim].” (Id. at p. 1025.) The defendant “had
threatened to kill [the victim] months before the shootings,” but the threat
was both remote in time and “evinced no particular plan to follow through.”
(Id. at pp. 1028–1029.) There was “some evidence of motive,” specifically, the
defendant and the victim “knew each other and had some sort of falling out
that may have been unresolved at the time of the shootings.” (Id. at p. 1029.)
The fact that the defendant shot the victim “twice in the face from close
range, at least once after [the victim] was already lying on the ground” was
evidence that the defendant “intentionally killed [the victim]” but not
evidence of premeditation. (Id. at pp. 1029–1031.) Evidence that, after the
shooting, the defendant fled with the victim’s possessions and attempted to
avoid arrest “may tend to show guilt” but did not “support the conclusion that

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[the defendant] committed premeditated and deliberate murder as opposed to
second degree murder or any lesser homicide offense.” (Id. at p. 1031.) “In
sum, the lack of evidence of planning, weak evidence of motive, and absence
of any other evidence suggesting premeditation and deliberation, combined
with the strong evidence that [the defendant] impulsively shot [the victim]
after [the victim] shot [the friend], leads us to conclude that insufficient
evidence supports a verdict of premeditated murder.” (Id. at p. 1032.)
The People, on the other hand, argue this case is akin to People v. Perez
(1992) 2 Cal.4th 1117 (Perez). In Perez, the victim was found dead in her
home with 38 knife wounds from two different knives. (Id. at pp. 1121–1122.)
There was a serrated steak knife blade under her head and a broken knife
handle near her feet; the knife handle appeared to be the same as the
handles of knives in the victim’s kitchen, and blood was found in the kitchen
knife drawer. (Ibid.) There were no signs of forced entry; it appeared the
defendant, who had gone to high school with the victim and her husband,
entered the house while the victim was warming up her car. (Ibid.) The
Supreme Court found the evidence of premeditation and deliberation, while
“not overwhelming, . . . is sufficient” (id. at p. 1127) to support the first
degree murder conviction: “Evidence of planning activity is shown by the fact
that defendant did not park his car in the victim’s driveway, he
surreptitiously entered the house, and he obtained a knife from the kitchen.
[Citations.] As to motive, regardless of what inspired the initial entry and
attack, it is reasonable to infer that defendant determined it was necessary to
kill [the victim] to prevent her from identifying him. [Citations.] She was
acquainted with him from high school and obviously would have been able to
identify him. The manner of killing is also indicative of premeditation and
deliberation. The evidence of blood in the kitchen knife drawer supports an

9
inference that defendant went to the kitchen in search of another knife after
the steak knife broke. This action bears similarity to reloading a gun or
using another gun when the first one has run out of ammunition.” (Id. at
pp. 1126–1127.)
We find this case much closer to Wear than to Perez. First, there is no
evidence of planning. The People argue “planning is shown by the fact that
appellant picked up or brought a knife that was neither from his home nor
from his restaurant.” But this is pure speculation. “ ‘ “A reasonable inference
‘ “may not be based on suspicion alone, or on imagination, speculation,
supposition, surmise, conjecture, or guess work.” ’ [Citation.] It must
logically flow from other facts established in the action.” ’ ” (Boatman, supra,
221 Cal.App.4th at p. 1266.) In contrast, in Perez, the inference that the
defendant retrieved the knife used to stab the victim from the kitchen was
not speculative because “it matched the kitchen knives and the victim’s
husband testified that he and [the victim] were well-organized and kept
everything in its place.” (Perez, supra, 2 Cal.4th at p. 1127.)
Nor is there evidence that appellant “created the opportunity to be . . .
alone with his estranged wife,” as the People argue: appellant could have
done so much more easily by simply appearing at the house at 4:00 p.m.
Instead, he was at the restaurant and only went to the house reluctantly
when Wen Ying called Stanley demanding (as Stanley understood it) that
they both come. Appellant knew Stanley was aware he was going to meet
Wen Ying at the house, and apparently knew Stanley would be following him
shortly. (See Boatman, supra, 221 Cal.App.4th at p. 1267 [no evidence of
planning where the defendant did not kill the victim at “a remote or isolated
location” but instead at a house “occupied by four other people who could
identify him”].) When Stanley arrived, appellant immediately confessed and

10
was crying hysterically. “Defendant’s behavior following the shooting is of
someone horrified and distraught about what he had done, not someone who
had just fulfilled a preconceived plan.” (Ibid.)
Second, the manner of killing also does not evidence premeditation. To
be sure, Wen Ying suffered four stab wounds, including one to her heart.
“But ‘[i]t is well established that the brutality of a killing cannot in itself
support a finding that the killer acted with premeditation and deliberation.
“If the evidence showed no more than the infliction of multiple acts of
violence on the victim, it would not be sufficient to show that the killing was
the result of careful thought and weighing of considerations.” ’ ” (Wear,
supra, 44 Cal.App.5th at p. 1031.) Instead, many cases finding a brutal
manner to be evidence of premeditation “emphasize[] the evidence that the
murder was carried out in a deliberate manner against an unresisting
victim—i.e., an ‘execution-style’ murder—and/or the lack of evidence
suggesting that the murder was the product of ‘ “mere unconsidered or rash
impulse hastily executed.” ’ ” (Id. at p. 1030.) Here, in contrast, “the manner
of killing [the victim] was not ‘so particular and exacting that the defendant
must have intentionally killed according to a “preconceived design” . . . .’ ”
(Boatman, supra, 221 Cal.App.4th at p. 1269.)
The People also argue the location of the garage for the killing is
evidence of premeditation because “there would be no mess in the main part
of the house where he still lived.” Again, this is merely conjecture: there is no
evidence that appellant lured Wen Ying into the garage or otherwise
orchestrated the location of the killing. The People also argue appellant
placed a sheet over Wen Ying’s body and gathered valuables to give to
Stanley for safekeeping, but we fail to see how these acts following the
homicide demonstrate premeditation. (See Wear, supra, 44 Cal.App.5th at

11
p. 1031 [“[W]e do not see how these haphazard actions support the conclusion
that Wear committed premeditated and deliberate murder as opposed to
second degree murder or any lesser homicide offense.”].) The People point to
appellant’s calm demeanor while driving with Stanley to the restaurant, but
Stanley testified appellant was crying hysterically shortly after the killing.
Finally, there is evidence of some motive, but it is insufficient to
support the verdict. Appellant and Wen Ying had fought about money for
years, appellant was angry with her for taking money from the restaurant
without helping him run it since their separation, and appellant hoped to
recover some money through the divorce proceedings but thought they were
not going well for him. (People v. Rivera (2019) 7 Cal.5th 306, 325 [“history of
past contentious encounters” between the defendant and victim as well as the
defendant’s complaints about the victim “provided evidence of a prior
relationship and conduct from which the jury could have inferred a motive to
kill [the victim]”].) But there was no evidence appellant had ever threatened
or physically harmed Wen Ying, or that he had reached a breaking point in
their years-long conflict. “The second Anderson factor refers not merely to a
motive to kill, but to the kind of motive that ‘would in turn support an
inference that the killing was the result of a “pre-existing reflection” and
“careful thought and weighing of considerations” rather than “mere
unconsidered or rash impulse hastily executed.” ’ ” (Boatman, supra, 221
Cal.App.4th at p. 1268.) Moreover, Anderson indicated that generally
evidence of motive alone was insufficient. (Wear, supra, 44 Cal.App.5th at
p. 1024 [“Anderson observed that ‘ “[a]nalysis of the cases will show that this
court sustains verdicts of first degree murder typically when there is evidence
of all three types and otherwise requires at least extremely strong evidence of
[planning] or evidence of [motive] in conjunction with [evidence of] either

12
[planning] or [manner of killing].” ’ ”].) Here, we have some evidence of
motive, but no evidence that the planning or manner of killing demonstrated
premeditation and deliberation.
“A first degree murder conviction premised upon premeditation and
deliberation requires more than a showing of the intent to kill; it requires
evidence from which reasonable jurors can infer that the killing is the result
of the defendant’s preexisting thought and reflection.” (Boatman, supra, 221
Cal.App.4th at p. 1274.) Such evidence is not present here. Aside from his
arguments on self-defense, which we reject in Part II, appellant does not
dispute that there was sufficient evidence to support the murder verdict, and
we will reduce the conviction to second degree murder. (See ibid. [“[W]e
conclude that there is ample evidence to support the jury’s verdict of murder,
but insufficient evidence to support the finding that defendant killed [the
victim] with premeditation and deliberation. We will therefore reduce the
conviction to second degree murder.”].)
II. Self-Defense/Imperfect Self-Defense
Appellant argues the trial court erred by refusing his proposed
instructions on self-defense and imperfect self-defense. We find no error.
“The subjective elements of self-defense and imperfect self-defense are
identical. Under each theory, the appellant must actually believe in the need
to defend himself against imminent peril to life or great bodily injury.”
(People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 (Viramontes).)
“ ‘[F]or either perfect or imperfect self-defense, the fear must be of imminent
harm. “Fear of future harm—no matter how great the fear and no matter
how great the likelihood of the harm—will not suffice. The defendant’s fear
must be of imminent danger to life or great bodily injury.” ’ ” (People v. Battle
(2011) 198 Cal.App.4th 50, 72 (Battle).) “To require instruction on either

13
theory, there must be evidence from which the jury could find that appellant
actually had such a belief.” (Viramontes, at p. 1262.) The trial court is
obligated to instruct “on lesser included offenses if there is substantial
evidence that, if accepted by the trier of fact, would absolve the defendant of
guilt of the greater offense but not of the lesser. [Citation.] The obligation
also applies, with reservations not applicable here, to instruction on defenses
when they are supported by substantial evidence. [Citation.] [¶] In this
context substantial evidence means evidence which is sufficient to deserve
consideration by the jury and from which a jury composed of reasonable
persons could conclude the particular facts underlying the instruction
existed. The trial court is not required to present theories the jury could not
reasonably find to exist.” (People v. Oropeza (2007) 151 Cal.App.4th 73, 78
(Oropeza).) “On appeal, we review independently the question whether the
trial court failed to instruct on defenses and lesser included offenses.” (Ibid.)
As appellant argues, evidence that a defendant believed in the need to
defend against imminent peril “may be present even though appellant did not
testify or make a statement admitted at trial.” (Viramontes, supra, 93
Cal.App.4th at p. 1262.) In Viramontes, for example, the defendant did not
testify or make a statement, but others testified they saw someone shoot at
appellant before appellant fired. (Id. at p. 1263.) The Court of Appeal
concluded, “If the jury believed these witnesses, it could find appellant had
an actual belief that he was in imminent peril and that lethal force was
necessary to defend himself against the person who shot at him.” (Ibid.) In
contrast, in Oropeza, the defendant “did not testify and made no out-of-court
comments indicating that when he fired, he believed it necessary to defend
his life or to avoid great bodily injury. It is the case that the ‘substantial
evidence of a defendant’s state of mind may be found in the testimony of

14
witnesses other than a defendant.’ [Citations.] Here, however, no witness
testified appellant fired out of fear or testified appellant appeared fearful. No
witness to the incident . . . stated they believed deadly force was necessary to
protect them.” (Oropeza, supra, 151 Cal.App.4th at p. 82.)
Appellant did not testify at trial and his only out-of-court statement
about the killing, to Stanley, gave no indication that he killed Wen Ying out
of fear or that she attacked him first. In addition, as in Oropeza and unlike
Viramontes, there was no other evidence that Wen Ying initiated an attack
on appellant in the garage. Appellant’s claim that the presence of Wen Ying’s
DNA on the knife’s handle could support a reasonable inference that she
“held the knife as a weapon” is unavailing: there was plainly a struggle, as
evidenced by appellant’s injuries and the presence of his DNA under Wen
Ying’s fingernails, and it would be sheer speculation to find that her DNA on
the knife’s handle was from wielding it before appellant attacked her instead
of from trying to wrest it from appellant during the struggle. Appellant also
points to evidence of Wen Ying’s past conduct, including throwing items at
appellant and striking Stanley, and evidence that the night before appellant
killed her he said he was afraid of her. While “prior assaults and threats[]
may be considered in determining whether the accused perceived an
imminent threat of death or great bodily injury,” the requirement that the
fear be of imminent harm means self-defense will not excuse or reduce a
killing “ ‘unless more than merely threats and a history of past assaults is
involved.’ ” (Battle, supra, 198 Cal.App.4th at pp. 72–73.) Because there was
no evidence from which the jury could find appellant actually believed in the
need to defend himself, the trial court properly denied the instructions.

15
III. Clarifying Instruction
Appellant argues the trial court erred in denying his request for a
special instruction. We reject the claim.
The jury was instructed on circumstantial evidence, as relevant here:
“[B]efore you may rely on circumstantial evidence to find the defendant
guilty, . . . you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant is guilty. If
you can draw two or more reasonable conclusions from the circumstantial
evidence, and one of those reasonable conclusions points to innocence and
another to guilt, you must accept the one that points to innocence.” (See
CALCRIM No. 224.) Appellant requested the following instruction: “The
instructions on circumstantial evidence use the word ‘innocence’ to mean
evidence less than that required to establish guilt, not to mean the defendant
must establish innocence or that the prosecution has any burden other than
proof beyond a reasonable doubt.” The trial court refused the instruction.
Appellant acknowledges cases rejecting similar arguments. In People
v. Crew (2003) 31 Cal.4th 822, the Supreme Court rejected an argument that
instructions referring to “ ‘guilt or innocence’ . . . relieved the prosecution of
its burden of proof by implying that the issue was one of guilt or innocence
instead of whether there was or was not a reasonable doubt about
defendant’s guilt. Challenges to the wording of jury instructions are resolved
by determining whether there is a reasonable likelihood that the jury
misapplied or misconstrued the instruction. [Citation.] Here, it is not
reasonably likely that the jury would have misapplied or misconstrued the
challenged instructions, one of which expressly reiterates that defendant’s
guilt must be established beyond a reasonable doubt. [Citation.] The
instructions in question use the word ‘innocence’ to mean evidence less than

16
that required to establish guilt, not to mean the defendant must establish
innocence or that the prosecution has any burden other than proof beyond a
reasonable doubt.” (Id. at pp. 847–848; see also People v. Wade (1995) 39
Cal.App.4th 1487, 1492 [“ ‘Innocence’ in this jury instruction is used simply to
connote a state of evidence opposing guilt. To say that evidence ‘points to’
innocence does not suggest that a defendant has to prove his innocence. The
language is used simply as a status of not guilty, a kind of compass or
direction signal indicating where the evidence points.”].)
Appellant attempts to distinguish these cases on the ground that the
circumstantial evidence in his case pointed not to innocence but to a lesser
included offense. The distinction is unavailing. The jury was instructed both
on the presumption of innocence and the People’s burden of proof beyond a
reasonable doubt (CALCRIM Nos. 103, 220), and on the People’s burden to
prove beyond a reasonable doubt that the killing was not a lesser crime
(CALCRIM Nos. 520, 521, 570). It is not reasonably probable the jury
misunderstood the circumstantial evidence instruction in the manner
proposed by appellant.
IV. Admission of Wen Ying’s 911 Call
Appellant contends the trial court erred in admitting Wen Ying’s 911
call the night before the killing. We need not decide whether the trial court
erred because we conclude any error was harmless.5
Appellant argues the asserted error was prejudicial under the state law
standard and also deprived him of due process. “ ‘Ordinarily, even erroneous
admission of evidence does not offend due process unless it is so prejudicial as
to render the proceeding fundamentally unfair.’ ” (People v. Covarrubias

5Because of this conclusion, we need not address the People’s claim
that appellant forfeited the argument by failing to sufficiently object below.

17
(2011) 202 Cal.App.4th 1, 20.) “ ‘Absent fundamental unfairness, state law
error in admitting evidence is subject to the traditional [state law] test: The
reviewing court must ask whether it is reasonably probable the verdict[s]
would have been more favorable to the defendant absent the error.’ ” (Id. at
p. 21, fn. omitted.)
The prejudice identified by appellant stems from Wen Ying’s statement
during the 911 call that appellant had changed the locks on the family home.
Appellant argues this “was the only arguably hostile act by [appellant]”
against Wen Ying and allowed the prosecutor to argue appellant
“sadistically” and “gleefully” denied Wen Ying access to the family home. To
the extent appellant’s argument relates to use of the evidence to establish
premeditation and deliberation, our conclusion that this finding lacked
substantial evidence renders the argument moot. In any event, in light of the
ample evidence of appellant’s years-long anger and frustration with Wen
Ying, any error in admitting the 911 call was not prejudicial and did not
render the proceedings fundamentally unfair.6
DISPOSITION
The judgment is modified to reduce the conviction for first degree
murder to second degree murder. As so modified, the judgment is affirmed.
The matter is remanded for resentencing in light of the modified judgment.
Following resentencing, the trial court is directed to prepare an amended
abstract of judgment and forward a certified copy of the amended abstract to
the Department of Corrections and Rehabilitation.

6 We reject appellant’s claim of cumulative prejudice. Appellant also
contends, and the People agree, that the abstract of judgment failed to reflect
a stricken enhancement. Because we are remanding for resentencing and the
preparation of an amended abstract of judgment, the issue is moot.

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 _________________________
Simons, J.

WE CONCUR:

_________________________
Jackson, P. J.

_________________________
Burns, J.

A159307

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