P. v. Pirante

Filed 3/8/07 P. v. Pirante CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Modified and, as modified, affirmed.

Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

Mark Angelo Pirante appeals from the judgment entered following his conviction by jury on count 1 - first degree murder (Pen. Code,  187, 189) with special circumstance findings that he committed the offense by lying in wait (Pen. Code,  190.2, subd. (a)(15)) and while kidnapping (Pen. Code,  190.2, subd. (a)(17)). The court sentenced appellant to prison for life without the possibility of parole.

In this case, we reject appellants argument that his Miranda advisement was deficient because a detective told appellant that anything he said may be used against him, instead of advising him that anything he said can and will be used against him. Either formulation is constitutionally sufficient.

We reject appellants argument that when an interviewing detective asked Do you want to discuss it with us? and appellant replied, [N]ot really, no, the reply was an invocation of his Miranda rights and subsequent questioning was improper. The antecedent of it was ambiguous and could have referred to multiple subjects, and appellants reply incorporated that ambiguity. Moreover, the word really suggested appellant might have talked with appropriate prompting. In short, appellants reply was ambiguous and the subsequent challenged questions were properly designed to clarify whether appellant was waiving or invoking his right to remain silent as to all questioning or merely as to questioning on a particular subject.

We conclude there is no merit to appellants arguments that detectives gave appellant false indications of leniency during the interview, and that the interview was coercively long. As to the former issue, appellant complains about five portions of the interview. However, the five portions indicate the detectives suggested benefits that merely flowed naturally from a truthful and honest course of conduct, but none of the portions, alone or together, demonstrate the detectives gave appellant to understand that he might reasonably expect benefits in the nature of more lenient treatment. The length of appellants interview was largely attributable to the simple fact that, despite noncoercive questioning by detectives, appellant initially chose to deny involvement in the circumstances leading to the murder before appellant later freely admitted involvement.

We reject appellants argument that the trial court erroneously refused to instruct on voluntary manslaughter based on heat of passion. More than a month passed from the time of the alleged provocation to the time appellant killed the decedent, that is, a sufficient cooling period had elapsed. Appellants various planning activities on the day of the instant killing were inconsistent with heat of passion. Moreover, the jury found appellant committed the murder by lying in wait, a finding implying premeditation which, in turn, negated heat of passion and rendered the claimed instructional error harmless.

Similarly, we reject appellants claim that the trial court erroneously failed to instruct that the jury could consider provocation evidence when determining the degree of the murder. Such an instruction was a pinpoint instruction and appellant waived the issue of whether the trial court erroneously failed to give the instruction by failing to request that the court give it. Moreover, the giving of such an instruction was not warranted since, based on the facts, appellants planning activity on the day of the murder negated provocation and appellant did not immediately kill.

We accept respondents concession that the trial court erred by imposing a Penal Code section 1202.45 restitution fine. Such a fine was erroneous because the court sentenced appellant to prison for life without the possibility of parole.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on August 28, 2002, appellants friend, Roy Quintana (Roy) was killed. On September 30, 2002, Vincent Soqui told appellant that Ray, referring to Ray Ruvalcaba, wanted to buy drugs. Appellant asked, Ray who? Appellant later asked, the one that was involved in Roy Quintanas murder? Soqui replies yes.

Appellant later told Soqui that appellant had the drugs and was en route to a house on L Street, later identified as the house of Connie Cantu. Soqui told Ruvalcaba that appellant was en route, and Ruvalcaba indicated he also would go to the house.

Appellant called Fernando Quintana (Fernando) and Sergio Quintana (Sergio),^[1]Roys brothers, and told them to join appellant at Cantus house. Appellant told detectives that he told Fernando and Sergio, [Ruvalcabas] coming, and if you guys want him, I wanted him too, he killed my friend, . . . just dont do nothing in that house. . . . Appellant knew Ruvalcaba probably would be killed. Appellant told police I knew the boy was going to kill him.

Appellant, Fernando, and Sergio arrived at Cantus house before Ruvalcaba. Appellant told police he went there and had thoughts in [his] mind, I was mad [because] they killed Roy. Appellant also told police, I, did not want to kill nobody maybe I did want to kill him [because] he killed Roy, and Roy was my partner . . . .

Soqui and Cantu were also present at Cantus house, and appellant privately told Soqui that Cantu would have to leave for awhile. Cantu saw appellant in her bedroom. Appellant was removing duct tape from a bag, and appellant told Cantu it was better if she left. Appellant told police he gave Cantu money so she could go to the store and not be involved. Appellant tore off several one-foot-long strips of duct tape. Appellant left the house.

Shortly thereafter, Ruvalcaba entered the house. Fernando, Sergio, and Soqui were inside. Ruvalcaba acknowledged he knew appellant and Sergio. Sergio indicated he was Roys brother. Fernando, using a metal pipe, struck Ruvalcaba on the head and he fell. Fernando or Sergio dragged Ruvalcaba to the middle of the living room. Fernando and Sergio asked Ruvalcaba why he killed Roy, and Fernando repeatedly beat Ruvalcaba with a metal pipe. Sergio put a shotgun in Ruvalcabas mouth.

Appellant later returned to the house. Ruvalcaba was on the floor and Fernando was hitting him with the pipe. Appellant entered and said to Fernando, Sergio, and Soqui, Wait, wait, wait. What are you doing? What are you doing? Appellant also said to them it wasnt supposed to be happening there. Appellant told Soqui to wait outside and he complied.

Soqui later reentered the house and saw Ruvalcaba lying face down. His hands were taped behind his back, and a strip of duct tape covered his mouth. Fernando or Sergio was wrapping Ruvalcabas feet in duct tape. Appellant gave Soqui money and told him to get cigarettes. Soqui complied, returned, and later saw Fernando drive a car to the back of the house. Appellant and Sergio carried Ruvalcaba and put him in the back seat of the car. Fernando and Sergio then entered the car and drove away with Ruvalcaba.

Soqui asked appellant what had happened, and appellant replied, Dont worry about nothing. He was alive when he left. While appellant and Soqui were in the living room, appellant told Soqui to clean up the mess. Soqui replied he would not clean it up because he did not do it. Appellant told Soqui to clean it up and Soqui was in the big leagues now. Appellant also told Soqui to keep his mouth shut because there was nowhere to run in jail. Soqui refused to clean up the mess, but appellant told him to clean it up and left.

Ruvalcabas dead and brutally beaten body was discovered in an alley the next day. A bandana was stuffed in the back of his throat. Ruvalcaba died of asphyxiation. A few days after September 30, 2002, appellant tried to conceal blood in the house. We will present additional facts below where pertinent.

CONTENTIONS

Appellant contends (1) the trial court erroneously denied his motion to suppress statements he made to police, (2) the trial court erroneously refused to instruct on voluntary manslaughter, (3) the trial court erroneously failed to instruct that the jury could consider provocation evidence when determining the degree of murder, (4) the above errors were cumulatively prejudicial, and (5) the trial court erroneously imposed a Penal Code section 1202.45 restitution fine.

DISCUSSION

1. The Trial Court Properly Denied Appellants Suppression Motion.

a. The Miranda Admonition Was Proper and Appellant Did Not Invoke His Right to Remain Silent.

Appellant moved to suppress statements he made to police on the ground they were obtained in violation of Miranda.^[2] The court conducted an admissibility hearing, the pertinent facts concerning which are set forth below, and at the conclusion of the hearing the court denied the suppression motion.

(1) Pertinent Facts.

Los Angeles Police Detectives Jenks and Winters interviewed appellant following his arrest. During the interview, and after preliminary discussions, the following occurred: [Jenks:] . . . the reason youre here today is we wanna talk to you about some events that happened in San Pedro and Wilmington . . . [.] [] [Jenks:] [S]pecifically we want to talk with you about something that happened over at a L street back in the end of September, beginning of October of last year- so Im going to read you your rights, okay- you have the right to remain silent- do you understand that? [] . . . [] [Appellant:] [Y]es[.] [] [Jenks:] [A]nything you say may be used against you in a court of law- do you understand that[?] [] [Appellant:] [Y]es[.]

Jenks advised appellant that he had the right to the presence of an attorney before and during any questioning, and if he could not afford an attorney, one would be appointed for him, free of charge, before any questioning if appellant wanted. Appellant indicated he understood.

The following then occurred: [Jenks:] [A]nd do you want to talk to us about what happened? Do you want us to talk to you about what we are investigating? [] [Appellant:] [I] . . . think I know probably what youre talking about, but I dont know[.] [] [Winters:] [D]o you want to discuss it with us? [] [Appellant:] [N]ot really, no. . . .  [] [Jenks:] [A]re there parts you know you want to talk with us about? [] [Appellant:] I mean, you got me here for something, and I dont know what for-okay[.] [] [Jenks:] [W]ell thats why we want to talk with you[.] [] [Appellant:] I can tell you . . . I mean . . . I dont know what you want to talk about first[.] [] [Jenks:] [W]ell do you want us to tell you[?] [] [Appellant:] Sure[.]

The colloquy continued: [Jenks:] [O]kay- well, what we want to discuss with you is, over on L, the street . . . that general area- over in Wilmington- do you know where thats at in Wilmington? [] [Appellant:] [D]o I know where that area is, yes, I believe I do[.] [] [Jenks:] [O]kay- there was a friend of yours that use to stay down there named Vince, right? Im just letting you know okay . . . were not . . . [.] [] [Appellant:] [N]o, no, . . . [I understand,] I understand[.] [] [Jenks:] [O]kay- and there was . . . and something happened at the house, one night- thats what we want to talk with you about- is that what you thought we wanted to talk with you about? [] [Appellant:] [N]o[.] [] [Jenks:] [W]hat did you think we wanted to talk with you about[?] [] [Appellant:] [A]bout my- when someone murdered my friends[.] [] [Jenks:] [O]kay- who murdered your friends[?] [] [Appellant:] [A]h, I dont know, exactly, [because] I was not there[.] [] [Jenks:] [W]hy dont you tell us about that- we are interested in that too- is that Roy your talking about? [] [Appellant:] [Y]ah[.] [] [Jenks:] [O]kay why dont you tell us about that[.] [] [Appellant:] [U]m[.] [] [Jenks:] [W]ere talking about Roy Quintana, right? [] [Appellant:] [Y]ah[.] [] [Jenks:] [W]hat happened that night?

During oral argument on appellants suppression motion, the court commented, Both parties are stipulating [appellant] was Mirandized. The trial court concluded that after appellant said, Not really, no, the following question is clearly clarifying ambiguity. The court noted [t]he confusion of defendants initial understanding of the topic of the conversation the detective wanted to talk to him [about]. The court stated, the line of questioning . . . is clarification of what did defendant mean when he said: I dont really, no. [] What did he really mean when he said right after I dont know, not really, [no?] The court also stated, It was basically clarifying ambiguity, not cornering defendant into [making] a statement. So I am going to find there was ambiguity based on totality of the circumstance.

(2) Analysis.

Appellant claims the Miranda admonition was improper because Jenks advised appellant that anything he said may be used against him, instead of advising him that anything he said can and will be used against him. We reject the claim.^[3]

As the court stated in People v. Valdivia (1986) 180 Cal.App.3d 657, . . . Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. . . .  [] While not a model to be emulated, the warning here was adequate. In the latter part of the Miranda opinion . . . the Court employed the overstatement can and will be used. But at an earlier point the Court described the warning as being that what is said may be used, and this alternative has been consistently approved by the lower courts. The courts have also upheld other formulations, including use of can alone, of might, and of could. (1 LaFave & Israel, Criminal Procedure (1984) 6.8, p. 516, fns. omitted; [citations].) (People v. Valdivia, at p. 664.)

Appellant claims that when he replied, not really, no, he invoked his Miranda right to remain silent; therefore, his subsequent statements were obtained in violation of Miranda. We disagree.

Once a suspect receives Miranda warnings, he is free to exercise his own volition in deciding whether or not to make a statement to the authorities. [Citation.] If

he thereafter requests counsel, the interrogation must cease until an attorney is present. [Citations.] If a suspects request for counsel or invocation of the right to remain silent is ambiguous, the police may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. (People v. Johnson (1993) 6 Cal.4th 1, 27 . . . ; see Davis v. United States (1994) 512 U.S. 452, 461 . . . [police may seek to clarify suspects ambiguous reference to counsel].) (People v. Box (2000) 23 Cal.4th 1153, 1194.) Moreover, our Supreme Court has stated, Several California cases have indicated that if a defendant expresses ambiguous remarks falling short of a clear waiver or invocation of his Miranda rights, the officers may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. [Citations.] We approve the rule of these cases . . . . (People v. Johnson, supra, 6 Cal.4th at p. 27.) Further, a defendant may choose not to answer some police questions without thereby invoking the right to remain silent to prevent all questioning. (People v. Michaels (2002) 28 Cal.4th 486, 510.)

Finally, In evaluating a claim of whether a defendant invoked his or her right to remain silent under Miranda we accept the trial courts factual findings and evaluations of credibility if supported by substantial evidence. [Fn. omitted.] While we must undertake an independent review of the record to determine whether the right to remain silent was invoked, [fn. omitted] we also give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence. [Fn. omitted.] Whether a suspect has invoked his right to silence is a question of fact to be determined in light of all of the circumstances, and the words used must be considered in context. [Fn. omitted.] We apply federal standards in reviewing appellants claim that his statements were elicited in violation of Miranda. [Fn. omitted.] (People v. Peracchi (2001) 86 Cal.App.4th 353, 359-360.)

In the present case, Jenks initially indicated he wanted to discuss events that occurred in two different locations: San Pedro and Wilmington. He then indicated he specifically wanted to talk about something that happened at one location: L Street. Jenks thus gave mixed signals as to what he wanted to talk aboutevents in San Pedro and Wilmington, or merely what happened on L Street.

Jenks exacerbated the problem by asking the compound question, [D]o you want to talk to us about what happened? Do you want us to talk to you about what we are

investigating? The first question asked if appellant wanted to talk, but the second question asked if appellant wanted detectives to talk. Moreover, the second question asked if appellant wanted detectives to talk about what they were investigating. The second question did not make clear whether the detectives were proposing to talk with appellant about what they were investigating and get an immediate response from him, or whether they were proposing to talk about what they were investigating simply to provide background information before detectives interrogated him.

Against the backdrop of these ambiguities, appellant indicated he thought he probably knew what Jenks was talking about, but appellant did not know. Without further clarification as to which of three distinguishable matters (events in San Pedro, Wilmington, and L Street) Winters was concerned with, Winters then asked if appellant wanted to discuss it (singular) with detectives. It was in this context that appellant replied, [N]ot really, no[.]

We note, first, that Jenkss ambiguities were incorporated into appellants reply. As a result, appellants reply was ambiguous and did not clearly indicate to what subject appellant was referring by his reply. Second, appellants reply was not an unqualified no. Appellant replied, [N]ot really, no[.] (Italics added.) Appellants reply suggested he was merely reluctant to talk but might have been willing to discuss it with further appropriate prompting from the detectives.

The above is confirmed by the subsequent interview, during which Jenks asked if there were parts appellant knew he wanted to talk to detectives about, appellant indicated he did not know for what he was in custody or what Jenks wanted to talk about first, and appellant indicated a willingness to have detectives tell [appellant]. Moreover, Jenks later indicated he wanted to talk about what happened in Wilmington, and appellant revealed he erroneously had thought that Jenks had wanted to talk about the murder of Roy Quintana.

In light of the above, we conclude appellants reply, [N]ot really, no was not an invocation of his Miranda right to remain silent. Moreover, Jenkss subsequent challenged questions were properly designed to clarify whether appellant was waiving or invoking his right to remain silent as to all questioning or merely as to questioning on a particular subject.

b. The Detectives Gave No False Indications of Leniency, and the Interrogation Was Not Coercively Lengthy.

(1) Pertinent Facts.

Appellants complaint pertains to five portions of the interview. We set them forth below and underline portions which appellant has emphasized in his brief.

During the first portion, the following occurred: [Winters:] . . . [W]ere not going to sit here and were not going to give you our whole case . . . what were doing is were giving you an opportunity to let you tell us your side of it- the thing is, is, if you dont take advantage of that opportunity itll be like any other opportunity, the door will close, and the opportunity will [pass] you by[.] (Italics added.)

During the second portion, the following occurred: [Jenks:] We know you were there Mark. We are not going over that route. We just want to get your version of the events. Like we said, I dont think you were heavy on this. I dont even think you know it was gonna happen. But if youre gonna sit there and say dont know about it, wasnt there, didnt know nothing about it then we are out of rope. This is your chance to tell us what did happen, not what you believe happened, what might have happened, but what actually happened. Sometimes, I let people tell me what actually happened and I have been able to go out and verify their stories and it has affected what they were filed on or if they were filed on. I have found witness [sic] that have exculpated people who have been innocent. Like if you know you were somewhere else that night and I can go establish that, I am out there to do it because I dont want to charge the wrong person. The nice thing with you is that you already have a warrant so we dont have to charge you with anything if we dont want to. We can wait on that and let it roll for awhile, but we actually want to know what you have to say happened that day. And you want to tell me, I can tell. (Italics added.)

During the third portion, the following occurred: [Appellant:] I was not there. [] [Winters:] Yes, you were Mark. [] [Jenks:] Ive got to go return a page. [] [Winters:] You need to stay and reconsider this Mark. [] [Appellant:] Consider? Consider what? [] [Winters:] Consider going down for this. [] [Appellant:] You guys are gonna put me down for this anyway, cuz thats what youre saying that I was there[.] [] [Winters:] You were there[.] [] [Appellant:] You guys are saying that other people are saying that I was there. [] [Winters:] You know what I am telling you. I am telling you there is an out for you. [] [Appellant:] There is no out. How do you figure there is an out? [] [Winters:] I am not going to tell you how there is an out, because if the shoe doesnt fit, you cant wear it. I am telling you there is an out for you. (Italics added.)

During the fourth portion, the following occurred: [Jenks:] Lets get this over with[.] [] [Appellant:] You are not listening to me. You want me to tell you everything, I am gonna tell you ok. . . . [A] lot of bullshit. Dammit what about the other people[.] [] [Jenks:] We are not done with the other people. [] [Appellant:] What about what happens to me. You know[.] [] [Jenks:] We are interested to know what we can do about all that. To make sure you are ok. [] [Winters:] . . . We got to know about it though. Weve got to know what it [sic] going on. [] [Jenks:] There are things we dont know about yet. So lets find out what happened and then we will discuss all the other concerns you have. Somebody drops him off. What now? (Italics added.)

During the fifth portion, the following occurred: [Jenks:] [H]ow did they take [Ruvalcaba] away? [] [Appellant:] [S]ee, what the fuck man, what are you guys going to do for me, I mean, I was- I was- [] [Jenks:] I gotta know, I gotta know what, what happened and then well talk about that[.] (Italics added.) The entire interview was contained in three tapes, and the transcript of the interview takes up about 111 pages of the clerks transcript.

At the conclusion of the admissibility hearing, the court stated, [appellants counsel] makes an argument that statement was made through coercion, that basically defendant was being softened up about this case by first talking about Roy Quintana and then talking about this case. [] I have read the transcript, and there is no coercion. I will make a factual finding that based on my review of the transcript there is no coercion.

(2) Analysis.

Under federal and California constitutional law, the prosecution must show voluntariness of a confession by a preponderance of the evidence. [Citations.] . . . [] In reviewing a finding of voluntariness we make an independent examination of the record and determine the ultimate issue independently as well. (In re Aven S. (1991) 1 Cal.App.4th 69, 75-76.) In determining the voluntariness issue, we consider the totality of the facts and circumstances; the issue is whether appellants statements were the product of a free and deliberate choice rather than intimidation, coercion, or deception. (People v. Kelly (1990) 51 Cal.3d 931, 950.)

Moreover, it is settled that advice or exhortation by a police officer to an accused to tell the truth or that it would be better to tell the truth unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary. (People v. Hill (1967) 66 Cal.2d 536, 549 (Hill).) Thus, the Supreme Court in Hill observed, [w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. (Ibid.)

We have reviewed the above five portions of the interview cited by appellant, and have reviewed them in light of the entire interview. The five portions indicate the detectives suggested benefits that merely flowed naturally from a truthful and honest course of conduct, but none of the portions, alone or together, demonstrate the detectives gave appellant to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, the prosecution, or the court in consideration of making a statement. The mere fact that an interview is lengthy does not render resulting statements involuntary. (People v. Hill (1992) 3 Cal.4th 959, 981.) In any event, the length of appellants interview was largely attributable to the simple fact that, despite noncoercive questioning by detectives, appellant initially chose to deny involvement in the circumstances leading to the killing of Ruvalcaba before appellant later freely admitted involvement. Appellants statement was voluntary. (Cf. People v. Clark (1993) 5 Cal.4th 950, 987-992; People v. Hill, supra, 66 Cal.2d at pp. 549-550; People v. Spears (1991) 228 Cal.App.3d 1, 27-28.) Appellants suppression motion was properly denied. None of the cases cited by appellant, or his argument, compels a contrary conclusion.

2. The Trial Court Did Not Err By Refusing to Instruct on Voluntary Manslaughter.

a. Pertinent Facts.

During discussions regarding jury instructions, appellant asked the court to instruct on voluntary manslaughter based on heat of passion. The court denied the request. The court later explained, There is no evidence that [appellant] was angry. In fact, the evidence is otherwise. Basically, [appellant] leaves, he comes back in. When he sees the blood and the condition of Ray Ruvalcaba, he says, What is going on here? This was not supposed to happen here. [] There is no anger. There is no heat of passion. Voluntary manslaughter is not applicable in this case.

b. Analysis.

[S]udden quarrel or heat of passion (Pen. Code,  192, subd. (a)) as mitigation negating malice aforethought requires that the perpetrators reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from this passion rather than judgment. No specific type of provocation is required, and the passion aroused need not be anger or rage, but can be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (People v. Lasko (2000) 23 Cal.4th 101, 108.) The defendant must actually both possess and act upon the required state of mind. (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.)

Moreover, a heat of passion instruction is properly given only when the killing is suddenly as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter. (Citation.) (People v. Daniels (1991) 52 Cal.3d 815, 868.)

We assume without deciding that Ruvalcaba was involved in the killing of Roy, appellants friend, on August 28, 2002. We also assume that Ruvalcabas involvement in that killing was legally adequate provocation sufficient to mitigate appellants killing of Ruvalcaba under the heat of passion doctrine,^[4]assuming it is otherwise applicable.

However, in the present case, more than a month passed from the time Roy was killed to the time appellant killed Ruvalcaba. On September 30, 2002, appellant asked Soqui whether the Ray to which Soqui referred was the Ray involved in Roys killing, signaling appellant had been aware of Ruvalcabas involvement. Appellant does not claim that he first learned about Ruvalcabas involvement in Roys killing on September 30, 2002. Appellants killing of Ruvalcaba was not done suddenly as a response to the provocation, instead, a sufficient time had elapsed for the passions of an ordinarily reasonable person to cool. (Cf. People v. Daniels, supra, 52 Cal.3d at p. 868.)

Moreover, after appellant learned Ruvalcaba wanted to buy drugs, appellant told Soqui that appellant had the drugs and was en route to Cantus house. Appellant called Fernando and Sergio, told them to join him, and told them if they wanted Ruvalcaba, appellant wanted him also. However, appellant told Fernando and Sergio not to do anything in the house. After appellant arrived at Cantus house, appellant privately told Soqui that Cantu would have to leave for awhile. While removing duct tape from a bag, appellant told Cantu it was better if she left. He gave Cantu money so she could go to the store and not be involved. Appellant tore off several strips of duct tape. Appellants planning activity on the day Ruvalcaba was killed was inconsistent with heat of passion.

In sum, the record fails to present substantial evidence that appellants reason was actually obscured as the result of a strong passion aroused by legally adequate provocation, and that appellant acted from his passion rather than judgment. There was no substantial evidence that appellant possessed, or acted upon, the required state of mind for heat of passion.

Finally, voluntary manslaughter based on heat of passion is a lesser included offense of murder. (People v. Barton (1995) 12 Cal.4th 186, 200-201.) In People v. Breverman (1998) 19 Cal.4th 142 (Breverman), our Supreme Court stated we conclude that in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836]. (Breverman, supra, 19 Cal.4th at p. 178.) In the present case, the jury found true that appellant murdered Ruvalcaba by lying in wait. Murder perpetrated by means of lying in wait is premeditated murder. (People v. Rodriguez (1998) 66 Cal.App.4th 157, 163.) The jurys implied finding that appellant committed premeditated murder negated heat of passion; therefore, the trial courts refusal to instruct on voluntary manslaughter was not prejudicial. None of the cases cited by appellant, or his argument, compels a contrary conclusion.

3. The Trial Court Did Not Err by Failing to Instruct that Provocation Might Negate Premeditation and Deliberation.

Appellant claims the trial court erroneously refused to give CALJIC No. 8.73, which states: If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.

We conclude otherwise. CALJIC No. 8.73 is a pinpoint instruction, the trial court was not required to give the instruction sua sponte, and appellant waived the issue by failing to request the instruction. (Cf. People v. Rogers (2006) 39 Cal.4th 826, 877-880; People v. Mayfield (1997) 14 Cal.4th 668, 778-779.)^[5]

On the merits, even when provocation is inadequate to negate the existence of malice so as to reduce the offense to manslaughter, the trial court must nonetheless instruct sua sponte on second degree murder if there is evidence from which the jury could find that the defendants decision to kill was a direct and immediate response to the provocation such that the defendant acted without premeditation and deliberation. [Citations.] (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.) The provocation evidence must justify a jurys determination that the defendant formed an intent to kill as a direct response to the provocation and acted immediately. (Ibid.)

In the present case, appellants planning activity, including his call to Fernando and Sergio, intervened between the alleged provocation and the killing of Ruvalcaba, and appellant did not act immediately. The trial court did not err by failing to instruct that provocation could negate premeditation and deliberation.^[6]

4. Imposition of a Penal Code Section 1202.45 Restitution Fine Was Error.

The trial court imposed a $10,000 Penal Code section 1202.45 restitution fine. As respondent concedes, however, imposition of that fine was error since the trial court imposed a prison term of life without the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186.) We will modify the judgment accordingly.

DISPOSITION

The judgment is modified by striking the Penal Code section 1202.45 restitution fine and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P.J.

CROSKEY, J.

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^[1] Neither Soqui, Fernando, nor Sergio is a party to his appeal.

^[2] (Miranda v. Arizona (1966) 384 U.S 436 [16 L.Ed.2d 694].)

^[3] As mentioned, during oral argument, the court indicated the parties had stipulated that appellant was Mirandized. Respondent does not raise the issue of whether appellant entered into such a stipulation or the issue of the impact, if any, of such a stipulation on appellants present claim.

^[4] Appellant cites no case holding that a third partys killing of a person not a relative of a defendant may mitigate, under the heat of passion doctrine, the defendants killing of the third party. (See 2 La Fave, Substantive Criminal Law ( 2d ed. 2003) 15.2(b), p. 502.)

^[5] We note the information did not charge that appellant committed willful, deliberate, and premeditated killing. (Pen. Code,  189; italics added.)

^[6] In light of the above, we reject appellants argument that he received ineffective assistance of counsel when his trial counsel failed to ask the court to give CALJIC No. 8.73. Appellant suffered no prejudice from any constitutionally deficient representation. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Moreover, on appeal, if the record sheds no light on why counsel failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, an ineffective assistance contention must be rejected. (People v. Slaughter (2002) 27 Cal.4th 1187, 1219.) We reject appellants contention for this reason also. Finally, in light of our discussion to this point, we reject appellants claim of cumulative prejudicial error.