Filed 9/26/17 P. .v Siddiqi CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed as modified with directions.

Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Ahmad Rashad Siddiqi of first degree murder (Pen. Code, § 187, subd. (a)) for stabbing Soraya Faroqi to death, found true the special circumstance that he committed the murder by lying in wait (Pen. Code, § 190.2, subd. (a)(15)), and found true that he personally used a weapon during the commission of the murder (Pen. Code, § 12022, subd (b)(1)). The trial court sentenced Siddiqi to life in prison without the possibility of parole for the special circumstance murder, plus a consecutive year for the personal use enhancement.

Siddiqi contends we must reverse his conviction based on instructional error. Specifically, he argues the trial court erred in failing to instruct the jury on subjective provocation as a potential defense to first degree murder and that a pinpoint instruction concerning subjective provocation was necessary. Siddiqi also argues the abstract of judgment must be corrected to accurately reflect the trial court’s award of credit for time served and, as respondent concedes, he further explains the abstract should be corrected to strike the parole revocation fine under Penal Code section 1202.45 because his sentence does not include parole. We modify the judgment to delete the parole revocation fine and direct the trial court to amend the abstract of judgment to strike that fine. As we explain, we affirm the judgment in all other respects.

I

FACTUAL AND PROCEDURAL BACKGROUND

Siddiqi met Faroqi in October 2010 in Baltimore, Maryland, when both applied for positions as civilian interpreters in Afghanistan. Although Faroqi lived in California, they began a long-distance relationship and she visited Siddiqi in Virginia on three occasions between October 2010 and March 2011. But in May 2011, Faroqi moved to Afghanistan to work as an interpreter, while Siddiqi remained in Virginia because he failed the test to qualify as an interpreter.

Siddiqi and Faroqi had a strained relationship while Faroqi was in Afghanistan, compounded by Siddiqi’s financial problems. Faroqi sent him sums totaling $8,000 between July 2011 and October 2011. But Siddiqi apparently knew or suspected Faroqi had begun an intimate relationship with an Army soldier, Angel Rivera, sometime in October 2011. He saw flirtatious messages from Rivera to Faroqi on Faroqi’s Facebook page and, in October 2011, Faroqi changed her relationship status on Facebook from “in a relationship” to “widow,” then removed her relationship status entirely.

Faroqi was scheduled to return to California in December 2011 for one month, and the two initially considered plans for Siddiqi to visit California. But by the time she arrived home on December 13, 2011, she had told him not to make the trip. Siddiqi discussed the relationship with Faroqi’s aunt and with a friend in Virginia, both of whom advised Siddiqi not to go to California. Siddiqi and Faroqi argued in a Skype conversation over the Internet about Faroqi’s decision not to have Siddiqi come to California. When Siddiqi showed Faroqi a ring he had bought her, she acquiesced to Siddiqi’s insistence on visiting, but only if he paid for his own ticket; she did not agree they would get back together as a couple.

She picked him up at the airport when he arrived in California on the evening of December 18, 2011. From there, the two went to pick up Faroqi’s friend, Sarah Abdelmaksoud, at a hospital where Abdelmaksoud was visiting her mother. Before dropping Siddiqi off at his hotel, the three stopped at a pharmacy to purchase a pregnancy test for Faroqi, which she and Abdelmaksoud told Siddiqi was for Abdelmaksoud. Faroqi took the pregnancy test in the pharmacy restroom and learned she was pregnant, which she confided to Abdelmaksoud, but they did not tell Siddiqi that Faroqi had taken the test, nor the result. Instead, they dropped him off at his hotel.

The following day, the day of the murder, Faroqi had a medical appointment. Siddiqi and Abdelmaksoud accompanied her and waited in the parking lot while Faroqi was in the exam room, where the clinic confirmed she was five and a half weeks pregnant. The trio then went to lunch, where Siddiqi tried to hold Faroqi’s hand, but she refused him. They checked Siddiqi out of his hotel and picked up some beer, after which Faroqi dropped Siddiqi and Abdelmaksoud off at Abdelmaksoud’s apartment and Faroqi went home to shower and change. At Abdelmaksoud’s apartment, Siddiqi placed the beers in the refrigerator in the kitchen, passing a knife block on the way.

While waiting for Faroqi to return, Siddiqi drank a beer and discussed with Abdelmaksoud his frustration about his relationship with Faroqi. She told him not to pressure her and to just “move on” if the relationship did not work out. Siddiqi appeared to be upset when he told Abdelmaksoud he knew what the “lifestyle” among contractors was like in Afghanistan and that he was “not stupid.” Abdelmaksoud deflected his inquiries about Rivera, referring Siddiqi to discuss such matters with Faroqi. Faroqi returned to retrieve them to go to the hospital so Abdelmaksoud could visit her mother. Faroqi and Siddiqi accompanied Abdelmaksoud on the visit until Siddiqi cut it short, informing the mother they needed to leave so he could speak with Faroqi; accordingly, the three departed for Abdelmaksoud’s apartment.

There, Siddiqi and Faroqi agreed to have a “civilized talk” in which Abdelmaksoud would act as a mediator, and Faroqi and Siddiqi each would have an opportunity to speak without interruption. Faroqi spoke first, telling Siddiqi he was too controlling, they both needed to focus on their separate, individual lives and getting their finances in order, and that she was pregnant with Rivera’s child. Siddiqi was upset and angry to learn of the pregnancy, but declared he still would accept Faroqi with the baby. Surprised at this statement, Faroqi reiterated she had to speak with Rivera about the baby.

Abdelmaksoud suggested a cigarette break outside, but Faroqi soon returned inside because the smoke nauseated her. When Abdelmaksoud told Siddiqi she was proud of him for his reaction in learning Faroqi was pregnant, he became emotional, began crying, and returned inside within a few minutes. Resuming the mediated discussion when Abdelmaksoud also returned inside, Siddiqi again declared his love for Faroqi. But when she insisted she still had to speak with Rivera because he would be a part of the baby’s life for the next eighteen years, Siddiqi requested that Faroqi accompany him to her car, explaining he wanted to retrieve the ring he had bought her.

Faroqi declined at first, but then acceded to his pleas. But a small knife fell from Siddiqi’s jacket pocket when he stood up. Abdelmaksoud seized it, recognizing it as one of her kitchen knives, which Siddiqi denied, demanding its return. While Abdelmaksoud replaced the knife in the kitchen and tried to usher Siddiqi out of the apartment, Faroqi lamented that she “knew this was going to happen,” Siddiqi was “fucking stupid,” and she never should have told him anything. She asked if Siddiqi intended to hurt himself.

Siddiqi threw Abdelmaksoud across the room when she continued to refuse to return his knife and objected to his claim he needed to get another beer. As Abdelmaksoud turned around, she saw Siddiqi chasing Faroqi from the apartment with a different, larger knife from her kitchen.

Siddiqi chased Faroqi toward the carports, yelling that he was going to kill her. Abdelmaksoud followed, screaming for Siddiqi to stop, only to see him push Faroqi to the ground in some bushes. Ignoring Faroqi’s pleas, Siddiqi clambered on top of her, stabbing her with the knife in her face, neck, and torso, exclaiming, “This bitch cheated on me” and “That’s what you get for cheating on me.”

Siddiqi turned the knife towards Abdelmaksoud when she attempted to approach, and continued stabbing Faroqi until a resident of the apartment building aimed a flashlight beam at him. He pushed Faroqi down, discarded the knife, and threw himself face down on the ground, stating that he was “waiting for the cops.” He called for someone to shoot him, stood up and retrieved the knife, but did not turn it on himself, instead casting it further away. While Faroqi lay dying, Siddiqi continued to yell insults at her. Faroqi bled to death from her wounds.

II
DISCUSSION

A. The Trial Court Adequately Instructed the Jury on Provocation Sufficient to

Reduce Murder from First Degree to Second Degree

Siddiqi contends the trial court failed to adequately explain the concept of subjective provocation sufficient to reduce murder from first degree to second degree. The trial court instructed the jury under Judicial Council of California Criminal Jury Instructions CALCRIM Nos. 521 [First Degree Murder], 522 [Provocation: Effect on Degree of Murder], and 570 [Voluntary Manslaughter: Heat of Passion—Lesser Included Offense].

Focusing on the voluntary manslaughter instruction, Siddiqi argues that “[u]nder the instructions provided, provocation was defined solely in terms of the objective reasonable man standard,” and therefore the jury was not “informed that when evidence of some provocation is presented, but it is insufficient to support a conviction of voluntary manslaughter . . . , a killing may still be reduced from first to second degree murder if the provocation played a role in preventing the defendant from premeditating and deliberating.” Siddiqi asserts the trial court erred in failing to instruct the jury that subjective provocation may be a defense to first degree murder.

The trial court sua sponte must instruct the jury on “‘general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case.’” (People v. Anderson (2011) 51 Cal.4th 989, 996-997.) This duty extends to instructions on the defendant’s theory of the case, including defenses the defendant relies upon so long as there is substantial evidence to support the defense and it is not inconsistent with the defendant’s theory. (Ibid.) On appeal, we must determine “whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We review the jury instructions as a whole to determine if there is a “reasonable likelihood the jury applied the instruction in an impermissible manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229.)

Siddiqi asserts that “provocation was defined solely in terms of the objective reasonable man standard.” Viewed as a whole, however, the jury instructions told the jury that subjective provocation alone, while insufficient to reduce murder to manslaughter, could still reduce the degree of murder from first to second. The requirements for objective provocation appeared only in the instructions for voluntary manslaughter (CALCRIM No. 570) as a separate determination from that of subjective provocation. The introductory sentence of the voluntary manslaughter instruction explicitly directed the jury to consider 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.” (Italics added.)

The instruction further told the jury that it “must decide whether the defendant was provoked and whether the provocation was sufficient,” and “n 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.” The instruction also referenced an objective cooling off period in considering whether the provocation was sufficient to reduce murder to manslaughter: “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, [i]then the killing is not reduced to voluntary manslaughter on this basis.” (Italics added.) Thus, CALCRIM No. 570 makes clear that objective provocation applies to reduce murder to voluntary manslaughter.

Contrary to Siddiqi’s claim that the trial court did not instruct the jury on his core defense that provocation may reduce the degree of murder, CALCRIM No. 522 stated that rule of law explicitly. The instruction’s first sentence provides: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter.” The instruction’s final paragraph specifies that the jury must undertake two separate provocation analyses, first in relation to the degree of murder, and second regarding voluntary manslaughter, as follows: “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.”

Most importantly, in requiring the jury to consider the degree of murder, the instructions as a whole made clear that this determination was subjective, namely, whether the defendant personally premeditated and deliberated the slaying. Specifically, CALCRIM No. 522 directed the jury to consider provocation on the degree of murder and, in turn, CALCRIM No. 521 set out this test in terms of the defendant’s individual state of mind. We presume the jury understood and correlated these instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) The latter instruction stated, “The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death.” (CALCRIM No. 521, italics added.)

Nothing in this language suggested an objective standard. Indeed, the instruction explicitly stated, “The amount of time required for deliberation and premeditation may vary from person to person.” (CALCRIM No. 521, italics added.) Similarly, the instruction specified that an individual’s rash, impulsive, or unconsidered decision prevented a first degree verdict: “A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. (Ibid.) Because CALCRIM No. 522 expressly directed the jury to separately consider provocation on the degree of murder and for voluntary manslaughter, and because the trial court’s instructions made clear subjective premeditation and deliberation were necessary for first degree murder, while mentioning objective provocation only in the context of evaluating defendant’s heat of passion voluntary manslaughter defense, the court’s instructions accurately and completely stated the governing law.

Siddiqi contends that because the prosecutor in closing argument discussed the provocation necessary for voluntary manslaughter immediately following his discussion of the degrees of murder, the jurors may have believed objective provocation also applied to determining whether he committed first or second degree murder. But the prosecutor was entitled to address Siddiqi’s bid for a voluntary manslaughter conviction under his heat of passion defense. And the mere sequence of the prosecutor’s closing argument does not support Siddiqi’s claim because it would be natural for the prosecutor to move in his closing from the more serious degrees of murder progressively to voluntary manslaughter.

Moreover, like the trial court’s jury instructions, the prosecutor’s closing argument referred to the concept of objective provocation only in the context of heat of passion voluntary manslaughter. The prosecutor did not suggest that provocation sufficient to reduce murder from first degree to second degree required the objective provocation necessary to reduce murder to voluntary manslaughter. Furthermore, even assuming any untoward inference could be gleaned from the prosecutor’s remarks, “we presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70; People v. Cruz (2001) 93 Cal.App.4th 69, 73 [court must presume the jury “‘meticulously followed the instructions given’”].)

In any event, any error in failing to instruct the jury further on the effect of subjective provocation on the degree of murder is harmless in light of the jury’s special circumstance finding. In finding Siddiqi lay in wait to kill Faroqi, the jury concluded he premeditated and deliberated the crime, definitively rejecting Siddiqi’s provocation defense. There is no mitigated murder offense in which a defendant is provoked to lay in wait to kill; rather, a defendant who lays in wait necessarily premeditates the slaying and therefore is guilty of special circumstance first degree murder. (People v. Boyette (2002) 29 Cal.4th 381, 435 [proof of lying-in-wait acts as functional equivalent of proof of premeditation, deliberation, and intent to kill].) In sum, the jury’s special circumstance finding resolved Siddiqi’s subjective provocation defense against him. (People v. Moon (2005) 37 Cal.4th 1, 32 (Moon) [“by sustaining the lying-in-wait special circumstance allegation, the jury necessarily found defendant did not kill [the victim] in an explosion of unconsidered violence”]; People v. Lewis (2001) 25 Cal.4th 610, 646 [“Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions”].)

B. The Trial Court Did Not Err in Rejecting Siddiqi’s Proposed Instruction

Siddiqi argues the trial court erred by refusing to give a pinpoint instruction he requested regarding provocation. Specifically, Siddiqi asked the court to instruct the jury: “The ‘average person’ need not have been provoked to kill, just to act rashly and without deliberation.” The court properly declined to give the instruction because other instructions covered the issue.

A defendant is generally entitled, on request, to instructions that “pinpoint” the theory of the defense case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) A trial court may properly refuse a requested instruction if it incorrectly states the law, is argumentative, duplicative, or potentially confusing. (Moon, supra, 37 Cal.4th at p. 30.)

Siddiqi contends the trial court should have granted his request because CALCRIM No. 570 did not include his specific formulation, which stated a correct principle of law. The court properly refused the instruction because it duplicated portions of CALCRIM No. 570. CALCRIM No. 570 directed the jury to consider whether 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.” (Italics added.) The instruction further advised the jury that “n deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, [i]would have reacted from passion rather than from judgment.” (CALCRIM No. 570, italics added.)

CALCRIM No. 570 does not state or suggest that the average person must have been provoked to kill; instead, it properly focuses on whether the defendant acted or reacted “from passion rather than judgment.” (See People v. Beltran (2013) 56 Cal.4th 935, 954 & fn.14 [“Telling the jury to consider how a person of average disposition ‘would react’ properly draws the jury’s attention to the objective nature of the standard and the effect the provocation would have on such a person’s state of mind”].) Accordingly, the instruction did not require defendant’s proposed pinpoint clarification.

Moreover, in stating Siddiqi’s proposed addition was unnecessary provided the parties correctly argued the law, the trial court indicated it was open to the proposal if closing argument muddied the issue. But the prosecutor correctly told the jury, “It’s not that the average person would have reacted by killing somebody, but they have to act from passion rather than judgment.” Likewise, defense counsel also emphasized the proper standard “is not whether it would have provoked an average person to kill. . . . The test is simply whether or not it would have provoked a person of average disposition, knowing the facts. To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person of average disposition would act rashly and without due deliberation.”

While Siddiqi is correct that arguments of counsel do not substitute for proper instructions, CALCRIM No. 570 correctly stated the law. Because we presume jurors “are intelligent persons capable of understanding and correlating jury instructions” (People v. Martin (1983) 150 Cal.App.3d 148, 158), not every implication or permutation must be spelled out for them. Consequently, in merely making explicit what was already implicit in the instruction, Siddiqi’s proposal was duplicative. Additionally, as noted, any conceivable error in failing to give the requested instruction was harmless because the jury found Siddiqi lay in wait to kill Faroqi, which resolves the provocation issue against him.

C. The Abstract of Judgment Accurately Reflects Siddiqi’s Time-Served Credits

Siddiqi asserts that abstract of judgment must be corrected to accurately reflect the credits the trial court awarded him for time served. He relies on the fact that the “Credits” section of the abstract of judgment is blank, but he overlooks that the abstract’s “Other” section correctly recites the 1,412 days the court awarded Siddiqi for time served. We see no reason to presume the Department of Corrections and Rehabilitation will suffer the same oversight. (Evid. Code, § 664.) Accordingly, there is no reason to order the trial court to modify the abstract, but because the court must prepare an amended abstract of judgment as discussed below, it may in its discretion move its credits award to the amended abstract’s “Credits” section.

D. Amending the Abstract of Judgment to Strike the Parole Revocation Fine

Siddiqi contends that the trial court erroneously imposed a parole revocation fine of $200 pursuant to Penal Code section 1202.45. That section provides, in relevant part, “In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall . . . assess an additional parole revocation restitution fine.” A parole revocation fine cannot be imposed for a sentence of life without possibility of parole. (People v. McWhorter (2009) 47 Cal.4th 318, 380; People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) A parole revocation fine may be imposed where a defendant receives both a sentence of life without possibility of parole and a determinate sentence under Penal Code section 1170 that includes a period of parole. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)

Siddiqi received a sentence of life without possibility of parole with a one-year deadly weapon enhancement under Penal Code section 12022, subdivision (b)(1). Because he received a single, albeit enhanced sentence rather than a separate determinate sentence under Penal Code section 1170, respondent concedes the trial court could not impose the parole revocation fine. The judgment therefore must be corrected to strike the fine.

III

DISPOSITION

The judgment is modified (§ 1260) to strike the $200 parole revocation fine, and the trial court is directed to prepare a corrected abstract of judgment striking the fine and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. The court in its discretion may move its credits award to the amended abstract’s “Credits” section. The judgment is affirmed in all other respects.

ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.