Dissenting Opinion Cogently Explains Basis for Defense Requested Pinpoint Instructions
May 29th, 2020

In People v. Ramirez (2019) 40 Cal.App.5th 305 the majority opinion concluded that the defendant’s request for pinpoint instructions related to voluntary manslaughter because one instruction was duplicative of CALCRIM No. 570 and another was argumentative. The dissenting opinion provides a good discussion of why the defense has the right to pinpoint instructions which “pinpoint the defendant’s theory of the case. The relevant portion of the dissenting opinion is as follows:

 

“Although I concur in the result on this issue and agree that ultimately appellant’s conviction should not be reversed because the trial court refused to give the requested pinpoint instructions, I write to set forth a different perspective on whether the trial court erred in so refusing.

 

Our Supreme Court has consistently held that in appropriate circumstances, a trial court ” ‘may be required to give a requested jury instruction that pinpoints a defense theory of the case.’ ” ( People v. Hartsch (2010) 49 Cal.4th 472, 500, 110 Cal.Rptr.3d 673, 232 P.3d 663.) Pinpoint instructions ” ‘ “relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case.” ’ ” ( People v. Lujano (2017) 15 Cal.App.5th 187, 191, 223 Cal.Rptr.3d 105.) A proper instruction does not pinpoint evidence , it pinpoints the defendant’s theory of the case. ( People v. Ledesma (2006) 39 Cal.4th 641, 720, 47 Cal.Rptr.3d 326, 140 P.3d 657 ( Ledesma ).)

 

On request, “a criminal defendant is entitled to pinpoint instructions that relate particular facts to an element of the charged offense and highlight or explain a theory of the defense if the instructions are supported by substantial evidence.” ( People v. Nelson (2016) 1 Cal.5th 513, 542, 205 Cal.Rptr.3d 746, 376 P.3d 1178 ( Nelson ).) A pinpoint instruction must be given at a defendant’s request unless it “incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.” ( People v. Moon (2005) 37 Cal.4th 1, 30, 32 Cal.Rptr.3d 894, 117 P.3d 591 ; People v. Mora and Rangel (2018) 5 Cal.5th 442, 498, 235 Cal.Rptr.3d 92, 420 P.3d 902.)

 

“In determining whether the evidence is sufficient to warrant a jury instruction, the court does not determine the credibility of the defense evidence, but only whether there was evidence, if believed by the jury, sufficient to raise a reasonable doubt.” ( People v. Dowdell (2014) 227 Cal.App.4th 1388, 1418, 174 Cal.Rptr.3d 547 ; People v. Salas (2006) 37 Cal.4th 967, 982, 38 Cal.Rptr.3d 624, 127 P.3d 40.)

 

Here, the trial court gave the jury the following instruction on voluntary manslaughter:

 

“A killing that would otherwise be a 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:

 

“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 in 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.

 

“A desire for revenge does not qualify as a passion which would reduce a murder to voluntary manslaughter.

 

“It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. 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 a 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.”

 

Ramirez asked the court to also give the jury two pinpoint instructions on voluntary manslaughter. The first was, “[p]rovocation sufficient to reduce murder to voluntary manslaughter may accumulate over a period of time and may be based upon a series of acts.” Ramirez cited to the following authority to support his request: People v. Le (2007) 158 Cal.App.4th 516, 525, 69 Cal.Rptr.3d 831 ; People v. Wharton (1991) 53 Cal.3d 522, 569, 280 Cal.Rptr. 631, 809 P.2d 290 (Wharton ); People v. Berry (1976) 18 Cal.3d 509, 134 Cal.Rptr. 415, 556 P.2d 777 ; and People v. Borchers (1958) 50 Cal.2d 321, 325 P.2d 97. The second requested jury instruction was, “[a] defendant may witness potential acts of provocation and/or be informed of them afterwards.” Ramirez supported this instruction with citations to People v. Brooks (1986) 185 Cal.App.3d 687, 230 Cal.Rptr. 86 ( Brooks ) and People v. Berry.

 

The court agreed the requested pinpoint instructions were accurate statements of law, but denied both requests. The court told defendant he could argue these points to the jury, but declined to include the instructions because it felt the case was “just really at the border” of justifying the standard voluntary manslaughter instruction.

 

Ramirez argues this was error. The People do not argue the requested instructions were inaccurate statements of the law; rather, the trial court was not required to give them because they were duplicative and unhelpful to the jury.

 

The requested pinpoint instructions were simple, straightforward statements of law; there was no risk of them confusing the jury. Nor were they argumentative. An instruction is argumentative if it directs the jury to consider specific evidence. ( Ledesma , supra , 39 Cal.4th at p. 720, 47 Cal.Rptr.3d 326, 140 P.3d 657 ; Wharton , supra , 53 Cal.3d at p. 570, 280 Cal.Rptr. 631, 809 P.2d 290.) Ramirez’s requested instructions did not point to specific pieces of evidence in the record, they merely pinpointed the crux of Ramirez’s defense theory: that a series of provocative acts, some of which he witnessed and some of which he heard about, caused him to act in the heat of passion when he shot Zambrano. Interestingly, the trial court found no problem with and sua sponte gave a pinpoint instruction to support the People’s theory of prosecution: “A desire for revenge does not qualify as a passion which would reduce a murder to voluntary manslaughter.” I find Ramirez’s two proposed instructions were just as mildly phrased in explicating his theory of defense.

 

Nor were the instructions duplicative. Nothing in the standard instruction given to the jury addressed the question whether murder could be reduced to voluntary manslaughter if the defendant did not witness the provocation, but learned of it afterwards. Yet, this is the state of the law. (See Brooks , supra , 185 Cal.App.3d at p. 694, 230 Cal.Rptr. 86.)

 

With respect to the accumulation of provocative acts, the standard instruction indicates that provocation may occur over a long period of time, but it also states the provocation may not be remote or slight, and that the defendant must have acted in the direct and immediate influence of provocation. Ramirez’s theory was that a number of provocative acts, each one of which might not be sufficient on its own to cause a reasonable person to act in the heat of passion, can build upon one another to the point where a defendant may act rashly and without due deliberation or reflection. I conclude that instructing the jury in this way does not duplicate the standard instruction that provocation cannot be remote or slight and must have exerted a direct and immediate influence upon the defendant yet can also occur over a long period of time. In light of Ramirez’s theory of the case, it is not unreasonable to conclude it would be potentially difficult for a jury to reconcile these three concepts. Ramirez was therefore entitled to an instruction informing the jury that an accumulation of otherwise “slight” provocations, some of which might be remote and some of which occurred right before or at the time of the crime, could reduce murder to voluntary manslaughter if the jury believed the sequence of provocations would prompt a reasonable person to act in the heat of passion.

 

The requested instructions were supported by substantial evidence. Ramirez was not present when the victim punched Semidey; rather, he heard about this provocative act shortly after it occurred and it was definitely the event that provoked him, based on his statement “Who was the mother fucker who hit my brother, my friend?” Then he saw the victim continuing to be belligerent and disrespectful to the wedding guests when the second confrontation occurred and Zambrano and his group knocked Guzman to the ground. Ramirez also stated during his police interview that he heard some of the women at the reception had been hit by the person who caused the trouble. While these facts may not have been sufficient to provoke a reasonable person to act in the heat of passion without due deliberation and reflection, the weight to be given this evidence was within the province of the jury, not the trial court.”

 

People v. Ramirez (2019) 40 Cal.App.5th 305, 312-16, dis. opn. of Stratton, J.


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