Filed 12/6/19 P. v. Leon CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

URIEL LEON,

Defendant and Appellant.

D074651

(Super. Ct. No. SCN367913)

APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed.

Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

A jury convicted Uriel Leon of first degree murder of the mother of his children (Pen. Code, § 187, subd. (a)) and found true an allegation he used a nylon cord as a deadly or dangerous weapon in committing the murder (§ 12022, subd. (b)(1)). The court sentenced Leon to 26 years to life in state prison.

Although the trial court gave the pattern jury instructions for provocation (CALCRIM No. 522) and voluntary manslaughter based on heat of passion (CALCRIM No. 570), Leon contends the court erred in declining his request for a further pinpoint instruction regarding provocative conduct. He also contends the prosecutor committed error by misstating the law regarding provocation in closing statements. Finally, he contends these errors, individually and cumulatively, violated his constitutional rights. We disagree with each of Leon’s contentions and affirm the judgment.

II

BACKGROUND

A

Prosecution Case

1

The victim had two children with Leon. Their relationship was on and off for many years.

In December 2016, their relationship was off and the victim was seeing someone else. The victim met a new romantic companion in early November 2016. The victim saw her new companion three or four times a week. The companion met the victim’s children and the victim’s mother. The victim’s friends felt the victim was moving on from her relationship with Leon.

A few days before December 25, 2016, Leon and the victim attended a Christmas program together at their children’s school. A friend of the victim was “shocked” to see them leave together. The victim’s friend had concerns about the victim being with Leon and wanted the victim to stay away from him.

The victim’s new companion spent the night with the victim on December 24, 2016. He arrived late at night or early in the morning and left around 8:00 a.m. on December 25, 2016. The victim seemed worried when he left.

The victim was asked to work on December 26, 2016, because her workplace was short-staffed. She arrived to work shortly after 8:00 a.m. Leon brought the victim coffee and a donut between 8:00 and 9:00 a.m. The victim told a coworker that Leon brought the food to check to see if she was really at work. The victim left work early because it was slow. She went to see her new companion. Her coworker started receiving texts from the victim around 3:00 p.m. When the coworker spoke to the victim by phone around 4:00 p.m., the victim sounded worried.

The victim went to her new companion’s workplace around 2:00 p.m. They had lunch and talked. The companion had been upset about seeing a photo of the victim with Leon. The victim said Leon sent the picture. The companion planned to meet the victim later. The victim received a lot of phone calls while they were talking. She laughed because she thought Leon’s threats were a joke. The victim left to pick up her children. The companion asked her to let him know she got home safely. After a brief exchange of text messages, he never heard from her again.

2

Paramedics arrived at Leon’s home about 8:45 p.m. The victim was positioned across the front passenger seat of her car with her lower body in the foot well and her back to the driver’s seat. She was ashen, her jaw was rigid, and there appeared to be blood on the seat below her mouth. It appeared the victim had been dead for some time.

The victim had linear ligature markings on her neck that included bruising and tearing of the skin. The victim’s head above the neck had a bluish, purple color. Her eyes, nose, ears, and lips were swollen. She had petechiae around her cheeks and eyes, which are characteristic of strangulation.

The markings on her neck were consistent with a cord moving or being reapplied during the strangulation. A detective found cording consistent with the marks on the victim’s neck on a workbench in the garage to Leon’s home.

The medical examiner opined the victim died from ligature strangulation. The medical examiner stated a person can lose consciousness from compression of the carotid artery within 10 to 15 seconds. If pressure is continually applied for three to five minutes, death will occur.

The autopsy also showed six bruises on the back of the victim’s head. The medical examiner opined the bruises were inflicted with blunt force from a flat object like a cell phone around the time of death. A clump of hair was found on the driver’s floorboard and a partial shoe print was found on the center console of the vehicle.

The victim’s cell phone was found in a car seat in the backseat. The screen on the phone was cracked.

3

Leon’s brother and mother were on scene when police and paramedics arrived. They were crying and shaken. Leon appeared calm compared to the others, but it looked as though he had been crying. He was relaxed and cooperative in his contact with officers. Leon told his father he was sorry for letting him down and asked his father to take care of his children. Leon and his family members cried at that point, although the family members were more distraught than Leon.

4

Cell phone analysis showed Leon made numerous phone calls and sent texts to the victim between December 25 and December 26. The victim responded two or three times. Around 3:00 p.m. on December 26, Leon’s phone was pinging off a cell phone tower near the victim’s workplace, suggesting he was in the area.

The victim exchanged her last messages with her new companion on December 26, 2016, around 5:20 p.m. He asked if she could hang out with him after work. She responded at 5:26 p.m. saying she had to pick up her children. The companion sent a frowning face emoji at 5:39 p.m.

5

Surveillance footage from cameras on Leon’s property showed the victim’s car pull into the driveway at approximately 5:38 p.m. Leon came out of the house carrying two car seats as a small child followed him. Leon opened the rear passenger door on the driver’s side, threw the car seats in the car without securing them, and put the child in the car. Leon closed the rear door and opened the driver’s door. Leon stood between the door and the driver’s seat. He appeared to talk to the person in the driver’s seat.

At approximately 5:47 p.m., Leon reached into the vehicle, turned, and ran to a nearby corner. He looked at a device for five to 10 seconds and then turned around and walked back to the vehicle. When he returned to the vehicle, he gestured toward the driver’s door, opened the rear passenger door behind the driver, and got into the vehicle. The driver’s door closed about the same time. Within approximately 30 seconds, the driver’s door opened.

Leon’s father came out of the house at 5:49 p.m., got some firewood, and returned to the house. At 6:03 p.m., the dome light inside the vehicle illuminated for approximately 20 seconds and something could be seen leaning from the driver’s seat toward the center of the vehicle. The dome light illuminated briefly again and a figure could be seen moving in the backseat. The figure in the front seat remained in the same position. At 6:09 p.m. the dome light illuminated again and Leon could be seen sitting in the driver’s seat. The victim’s body appeared to be in the passenger seat.

The vehicle backed out of the driveway with the lights off. It drove down the street and around the corner where it parked. At 6:45 p.m., approximately 34 minutes after driving around the corner, Leon exited the vehicle holding a small child. They entered Leon’s house.

Leon left the house and returned to the victim’s vehicle at 7:22 p.m. The vehicle dome light illuminated again as he entered the vehicle. He was inside the vehicle for a minute or two before getting out and returning to the house.

Approximately 20 minutes later, Leon left the house and drove away in another vehicle. He returned within a half an hour, parked in the driveway, and entered the house carrying a paper bag with fast food.

Leon’s brother and girlfriend arrived with their children and carried presents into the house. Around 8:40 p.m., Leon’s brother exited the house and jogged around the property as though he was looking for something. He returned to the house and then came out again with Leon’s mother. They went to the street where the victim’s car was parked. Police officers arrived on scene shortly thereafter.

B

Defense Case

1

The defense presented testimony from a woman who also dated the victim’s new companion. The woman testified the companion was physically violent with her and she obtained a restraining order against him.

2

Leon and his mother also testified. Leon admitted on cross-examination his relationship with the victim was on and off. He hung out with other girls and had a child with another woman. Leon admitted he was controlling with the victim and would not let her go out with friends without him being present.

Leon lived with the victim at her parents’ home for some time, but returned to his parents’ home in November 2016 when he suspected the victim was talking to another man. He took her phone away when he left because he suspected she was texting with other men.

Leon and the victim spent a night together during the first week of December 2016 and he said they started to see each other regularly again. They spent time together with the children like a family. Leon said he believed they were back together and he hoped they would get married.

Leon was not with the victim on December 24, 2016, but they planned to spend Christmas Day together. He arrived at her house around 7:00 a.m. on December 25, 2016. He saw a car he had never seen before in her driveway. Leon called the victim, but she did not answer the first couple of times. It bothered Leon when he saw a man leave her house and drive away in the car. The victim told Leon he must have seen a roommate.

Leon, the victim, and the children spent the day together at Leon’s home. The victim went home that night with the children. They planned to go to the snow the following day. Later that night, however, the victim said she had to work the next day. She invited Leon to spend the night with the family at her home.

Leon returned with the children to his parents’ home the morning of December 26, 2016. Leon took one of the children to get a haircut.

On the way to the haircut, Leon took the victim a donut and coffee at her workplace. Leon then took the child to a barber near the victim’s workplace.

Leon texted with the victim as he waited for the barber. He told her he was beginning to get a bad feeling. She responded by saying, “hmm.” After leaving the barber shop, he went to the victim’s workplace around 3:00 p.m. and noticed her car was not there. Leon began texting with the victim again saying her car was not in the parking lot. She said it was. He asked her to come out and see the child’s haircut. He began to get angry because he thought the victim was lying to him.

Leon went home and parked his car in the garage. He saw a rope and put it in his back pocket. He thought he would use the rope to scare the victim and to choke the truth out of her. He said he was angry and felt he was zoning out. Leon said he paced back and forth and became more upset, angry, and jealous that she was with another man. When he texted the victim and told her to come get the children, she said she was on her way.

Leon continued pacing until he saw the victim pull into the driveway. He picked up the car seats and walked to the car. When he noticed the child behind him, he hurried to put the child into the backseat of the car before the child wandered off. He intended to go back inside to get the other child.

However, Leon opened the victim’s door to question her about where she had been. He felt angry. When he asked why she was not at work, she said she was. He felt she was lying and they argued. When he saw her phone light up, he grabbed the phone to see who was texting or calling her. Leon ran to the corner to look at the phone. He saw a text with an angry emoji face from a man. Leon said he became jealous, mad, and angry because it confirmed she was with someone else.

Leon walked back to the car and tossed the phone onto her lap. He opened the back door of the car and got in the backseat. He said they continued to argue. He accused her of lying. She called him “fucking stupid.” Leon said he became even more angry because she was calling him names.

Leon remembered the rope in his pocket, threw it over her neck, and choked her. Leon said his mind was racing and he was not thinking. He claimed he went into a blindness and everything went black. He said he tried to let go, but could not do so. He tried to yell for help, but words would not come out. He felt his forearms get tighter and tighter. When he eventually opened his eyes and let go, the victim had fluid coming out of her mouth. Leon claimed he could not understand what was happening. He called the victim’s name. She did not respond.

Leon said he thought the victim had passed out, but would regain consciousness. Leon denied he wanted to kill the victim and did not think he had done so.

Leon wanted to move the car out of the driveway because he did not want people to see what was going on. From the backseat he moved the victim to the passenger seat. He then jumped over the center console to get into the driver’s seat. Once in the driver’s seat, Leon said he turned the light on in the car to find the car keys. He said he sat in the car for a while confused and dazed. Leon did not notice what the child in the car was doing.

Leon moved the car around the corner and continued sitting in the car. When he heard the child say “Dad,” Leon got the child out of the car. They returned to the house and Leon sat on the couch with his children. He said he was not thinking. Leon burned the rope in the fireplace.

Leon went back to the victim’s car to check on the victim. He did not think he had killed her and did not think of getting help at that time. He tried to move her and said her name. He could not feel a pulse, noticed blood coming out of her mouth, and saw she was blue. He placed her back on the seat. She appeared dead. He said he felt bad and did not know what to do.

Leon went back into the house and sat on the couch. Because the children were fighting over a toy, he decided to go to a store to buy new toys. He also stopped and got fast food for the children. When he returned, Leon gave his mother money.

After giving the children the toys and food, Leon went back to the car to see the victim. He said he opened the car door, but “couldn’t see her [anymore]” so he closed the door and went back to the house. He said he started crying so he went to the hallway for a towel. Leon’s mother saw him crying and shaking. When his mother asked what was the matter, he said she needed to call an ambulance because he thought the victim was dead. When the children saw him crying, he told them he was sorry. Leon cried when he spoke to his parents. He did not previously cry when he came in after being in the car with the victim.

Leon’s mother and his brother went out to the victim’s car, but could not see anything. Police officers arrived shortly thereafter.

Leon admitted on cross-examination that he found the rope at 3:00 p.m. and planned to put it around the victim’s neck to scare her. Leon thought about the victim being with another man since about 3:00 p.m. After running away with the phone and seeing the emoji text, he said he knew she was seeing someone else.

Leon walked back to the car and got into the backseat rather than confronting the victim at the driver’s door. He said he was mad and realizing the truth made him jealous and a “little bit angry.” He said he reacted by putting the rope around her neck. When asked how she could tell the truth with a rope around her neck, Leon said he reacted because he was jealous.

Leon said he did not recall how much time they spent arguing when he was in the backseat. He said the victim continued lying and denying things. Based on what she said, he threw the cord over her neck and put pressure on her neck with both sides of the cord. He denied regripping the cord. He claimed she could have been moving, but he was not looking because he either closed his eyes or it went black.

Leon admitted he lied to the police about what happened when they first arrived. He told detectives the victim tried to hit him because he was trying to not make it look as bad as it did.

Leon told detectives he strangled the witness for five minutes. He moved her body to the passenger seat to move the car because he was afraid someone would see what was going on, but he denied he knew she was dead. Leon denied hitting the victim with the phone.

III

DISCUSSION

A

Leon contends the court violated his constitutional rights by refusing to give a pinpoint instruction regarding provocation in addition to the standard jury instructions the court provided regarding provocation and heat of passion. We disagree.

We independently review claims of instructional error, including the legal adequacy of jury instructions. (People v. Mitchell (2019) 7 Cal.5th 561, 579, citing People v. Cole (2004) 33 Cal.4th 1158, 1210.) “The proper test for judging the adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law ….’ [Citation.] ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole … [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]” ‘ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ ” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111–1112.)

Generally, ” ‘[a] criminal defendant is entitled, on request, to a[n] instruction “pinpointing” the theory of his defense.’ [Citation.] But a request for a particular instruction may be denied if the instruction is argumentative [citation], misstates the law [citation], or duplicates other instructions [citation].” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 851, citing People v. Gutierrez (2002) 28 Cal.4th 1083, 1142, 1144 (Gutierrez).) “[H]owever, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories ‘is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 570 (Wharton).)

Leon requested the following instruction, “The provocative conduct may be physical or verbal, including verbal taunts, and infidelity of a lover, and it may comprise a single incident or numerous incidents over a period of time.” Leon’s counsel argued the proposed instruction would inform the jury verbal taunts and verbal provocation alone may be sufficiently provocative.

After considering the request, the court stated it would give CALCRIM No. 522 regarding provocation and CALCRIM No. 570 regarding voluntary manslaughter based on heat of passion. In rejecting the proposed instruction, the court stated, “[CALCRIM No.] 570 incorporates everything that a jury should consider. The Court does not want to involve itself into telling the jurors specific facts and how they should consider specific facts within this case other than are contained within the instruction. The instruction is neutral and encompassing so that it covers all these issues.” The court stated it would revisit the issue if the jury had a question.

The court’s ruling was consistent with the counsel of the Supreme Court to avoid instructions relating particular facts to a legal issue. (Wharton, supra, 53 Cal.3d at p. 570.) The standard jury instructions given by the court for provocation and voluntary manslaughter fully and fairly instructed the jury regarding the law of voluntary manslaughter and Leon’s defense. It adequately covered the valid points in the proposed pinpoint instruction. (Gutierrez, supra, 28 Cal.4th at p. 1144.) Although CALCRIM No. 570 did not specifically mention verbal taunts, it instructed the jury that “no specific type of provocation is required.” It also informed the jury, “[s]ufficient provocation may occur over a short or long period of time,” which is equivalent to the proposed language regarding a single incident or numerous incidents over a period of time.

Nothing precluded the jury from considering verbal statements or infidelity as legally adequate provocation, whether singular or numerous. (Gutierrez, supra, 28 Cal.4th at p. 1144.) Defense counsel, indeed, argued the victim’s verbal taunts, lies, and infidelity were “crazy-making” and provoked Leon into a blind rage. CALCRIM No. 522 explained it was for the jury to decide the weight and significance of any such provocation.

The record indicates the jury considered the instructions as a whole. The jury asked for additional copies of the instructions regarding murder (CALCRIM No. 520), first degree murder (CALCRIM No. 521), provocation (CALCRIM No. 522), and manslaughter (CALCRIM No. 570) so each juror could have a set to review. Shortly after receiving the copies, the jury asked for a further definition of express malice. The court referred the jury to the murder instruction and provided the following additional instruction: “Deliberate intention to unlawfully take a life.”

After further deliberation, the jury found Leon guilty of first degree murder, indicating they found Leon killed the victim willfully, deliberately, and with premeditation. (See People v. Nelson (2016) 1 Cal.5th 513, 538 [describing differences between murder and manslaughter].) The length of the deliberations suggest the jury undertook their duty seriously and they carefully considered the instructions and the evidence. We conclude the court did not commit prejudicial error in denying the requested pinpoint instruction under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)

B

Leon also contends the prosecutor committed error and violated Leon’s constitutional rights to present a defense, to due process, and to a fair trial by misstating the law regarding provocation in closing statements. We again disagree.

It is improper for a prosecutor to misstate the law. (People v. Marshall (1996) 13 Cal.4th 799, 831.) However, prosecutors ” ‘ ” ‘have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide.’ ” ‘ ” (People v. Shazier (2014) 60 Cal.4th 109, 127.)

” ‘ “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” ‘ ” (People v. Jackson (2016) 1 Cal.5th 269, 349.) ” ‘ “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” ‘ ” (People v. Woodruff (2018) 5 Cal.5th 697, 765.) “This is not a low standard to meet, since ‘ “we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s

statements.” ‘ ” (People v. Spencer (2018) 5 Cal.5th 642, 684.)

Here, the prosecutor did not misstate the law and Leon has not shown a reasonable likelihood the jury understood or applied his remarks in an improper or erroneous manner. In his initial argument, without objection, the prosecutor reviewed the law regarding voluntary manslaughter and argued it did not apply to the facts of this case.

Defense counsel then discussed voluntary manslaughter in her closing statement and said, “Classically this crime arose, this manslaughter arose, from a man finding his wife has been unfaithful. Lovers and infidelity. Age immoral. It goes back forever. We distinguished that from the cold calculated killer.” Defense counsel argued manslaughter is an emotional killing. “The law says, if you are provoked by someone’s … behavior; it can be taunting, lying, infidelity, all of those things. If you’ve really been provoked by that, deceit, crazy-making, and you act rashly under the circumstances, your intense emotion is obscuring the judgment. The average person would act rashly.” Defense counsel argued why she believed the jury should find manslaughter based on heat of passion and provocation rather than murder.

In response to the defense arguments, the prosecutor asked the jury to reject the defense theory. He argued the facts could not reasonably be construed as provocation. The prosecutor stated, in part, “We’re supposed to understand and believe that it is reasonable to think that she provoked him to act in such a rash and impassionate and blind rage by what she was doing in 2016. What was she doing? She left him. They were separated. Her friends told you that. Again, he’s saying a different story, but we don’t know what to believe from him. Her friends, her sister, they said she had moved on and she was trying.… Lies and deceit all this she was doing to supposedly provoke him. Well, maybe she knew what we now know about how he reacts when he finds out the truth. Maybe she was scared to tell him what she was doing.… Does he get to use that, her fear of telling him the truth is provocation? No. This is not a manslaughter case.”

Then the prosecutor stated, “[Defense counsel] talked about the classic old tale about infidelity. Well, that was back in the 40’s and 50’s and those cases represent a spouse walking in and seeing and catching their significant other in a moment of infidelity, years ago.” When defense counsel objected to the statement as misstating the law, the prosecutor responded by saying, “It’s still the law.”

The court stated the comment was argumentative, but it would allow it. However, the court immediately admonished the jury to follow the jury instructions and reminded them what the attorneys say is not evidence.

The prosecutor continued his argument by distinguishing the facts of this case from the classic tale. “That’s not this scenario. What did he find out? What did he walk into? Nothing. She came to pick up her kids and he grabbed her phone out of her car and ran off with it to search through it to find out she had text messages from another guy. All those text messages said was, hey, come back inside. I want to spend time. I can’t. I went to pick up boys. And frownie face emoji. Really. That’s provocation? This is not a manslaughter case. Not even close.… This is a murder case.”

We conclude the prosecutor’s comments, taken as a whole, did not misstate the law. He did not state infidelity can no longer constitute provocation. Nor did he say that lies and deceit cannot constitute provocation. He agreed it “is still the law.” Rather, he distinguished the facts of this case from the classic provocation cases and argued the facts—what the victim did and said—did not amount to provocation for manslaughter.

Even if the prosecutor’s comments could be construed as a misstatement, the court admonished the jury to rely on the written jury instructions. The jury, as discussed ante, carefully considered the jury instructions as a whole. They asked for written copies of the pertinent instructions, including voluntary manslaughter, and asked for clarification regarding the definition of express malice before finding Leon guilty of first degree murder. We conclude there is no likelihood the jury considered the prosecutor’s isolated comments in an improper or erroneous manner.

C

Because we find no error and no prejudice as to each of the asserted claims, it follows that any cumulative effect of the claimed errors ” ‘ “does not warrant reversal of the judgment.” ‘ ” (People v. Jablonski (2006) 37 Cal.4th 774, 825.)

IV

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

O’ROURKE, J.