P. v. Beltran

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Filed 3/30/11 P. v. Beltran CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
TARE NICHOLAS BELTRAN,
Defendant and Appellant.
A124392
(San Francisco City & County
Super. Ct. Nos. 175503, 203443)
After a two-year relationship marred by repeated incidents of domestic violence,
appellant stabbed his estranged girlfriend to death in front of her children. He fled to
Mexico, but was later located, brought to trial, and convicted of second degree murder.
On appeal, appellant argues that the prosecutor‟s closing argument, the jury
instructions, and the trial court‟s response to a question from the jury all reflected the
same error of law regarding the degree of provocation necessary to negate malice and
reduce the degree of homicide to voluntary manslaughter. Specifically, appellant
contends that this error permitted the jury to reject appellant‟s claim of voluntary
manslaughter, and reach a verdict of second degree murder, if it found that the victim‟s
provocation of appellant would have caused a reasonable person to act rashly, but was
not sufficient to cause such a person to kill. We agree with appellant that the relevant
jury instruction was at least ambiguous, if not misleading, and that under the
circumstances of this case, the error was prejudicial. Accordingly, we must reverse
appellant‟s conviction.

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This conclusion moots many of appellant‟s other contentions. For the guidance of
the trial court in the event of a retrial, however, we will address appellant‟s arguments
that the trial court erred in admitting hearsay statements by the victim to police and to a
lay witness, as well as evidence of appellant‟s prior acts of domestic violence.
FACTS AND PROCEDURAL BACKGROUND
A. Appellant’s Relationship with the Victim
In November 1998, appellant met a woman named Claire Joyce Tempongko at a
bar. About a month later, they began dating. In mid-January 1999, appellant moved into
the apartment that Tempongko shared with her school-age son, J.N.,1 and toddler
daughter. Appellant sometimes referred to Tempongko as his wife, and J.N. addressed
and referred to appellant as “dad,” even though appellant was not his father. According
to appellant, he and Tempongko discussed the possibility of having a child of their own.
She told him she was somewhat hesitant, because she was afraid he would abandon her as
the fathers of her existing children had done, but he denied that she ever told him that she
did not want to have a child with him because he was abusive. Eventually, according to
appellant, they agreed that she would try to become pregnant, but she never told him that
she had succeeded.
Appellant‟s relationship with Tempongko was “off and on again,” had “ups and
down[s],” and was marred by domestic violence almost from the start. In June 1999,
appellant was convicted of felony domestic violence and put on probation. At appellant‟s
trial, over the objection of his counsel, and subject to limiting instructions by the court,
the prosecution introduced evidence of three domestic violence incidents between
appellant and Tempongko, and of appellant‟s subsequent violation of a protective order.
1. The April 28, 1999 Incident. On April 28, 1999, Tempongko called the police
from a pay phone half a block from her apartment. When San Francisco police officer
Laxman Dharmani arrived, Tempongko and J.N. appeared to be frightened. Tempongko
1 To protect the privacy of Tempongko‟s son, an innocent bystander who was a
minor at the time of the crime, we will refer to him by his initials.

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told Dharmani that appellant had come to her apartment demanding to be let in, and that
when she refused, because she was afraid of him, he made a commotion and broke a rear
window.2 Tempongko explained to Dharmani that she had then let appellant into the
apartment, because she was embarrassed by the scene he was making, but once he was
inside, she told him he was no longer welcome there. He began gathering his belongings,
but then suddenly grabbed her and threw her to the ground. When Tempongko got up,
appellant grabbed her by the hair and pulled her along a hallway, but then let her go and
drove away in the couple‟s pickup truck.3 Shortly after that, appellant left Tempongko a
voicemail message saying that he would be back. Tempongko then called the police.
She told Dharmani that she was afraid of appellant, but when Dharmani suggested that
she go to a friend‟s or relative‟s house, she declined to leave home.
2. The May 17, 1999 Incident. About three weeks later, during the late evening
on May 17, 1999, Tempongko and appellant, riding in a limousine they had rented,
picked up a friend of appellant‟s named Teofilo Miranda and took him to a nightclub.
The two men drank alcohol in the limousine, and then had two or three beers at the club.
After they had been at the club for a while, several men at an adjacent table commented
about how Tempongko loved to dance. Appellant appeared to Miranda to become
jealous, and got into an argument with the men. The club‟s security guard then told
appellant, Tempongko, and Miranda to leave. They did so, and headed for Miranda‟s
house. On the way, a truck came close to hitting them as they were crossing the street,
and appellant got angry and threw a beer bottle at it.
After that, according to Miranda, appellant got into a bad mood. After the group
had sat talking for a little while at Miranda‟s apartment, appellant asked Miranda to call a
taxi so that he could go home, and told Tempongko she was to come with him.
2 Appellant testified that the window was already cracked, and that he was only
knocking on it when it broke.
3 In appellant‟s own testimony, he admitted grabbing Tempongko by the arm or
shoulder, but did not recall ever pulling her by the hair. J.N., however, remembered
seeing appellant drag his mother down a hallway by her hair on this occasion.

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Tempongko told Miranda that she did not want to go in the taxi with appellant because
she was afraid he would hit her, and asked him several times not to let appellant take her
away. When the taxi arrived, Tempongko threw herself onto the floor, crying. Appellant
took hold of her and tried to pick her up and remove her from Miranda‟s apartment, but
was not able to do so. Miranda tried to persuade appellant to let Tempongko go, and then
called the police. The tape recording of Miranda‟s 911 call was played for the jury; in the
background, Tempongko could be heard calling out for help. When the police arrived,
Tempongko was “shaking, crying, [and] hysterical,” and told them she did not want to be
left alone with appellant. Appellant was detained.
The following afternoon, the police photographed Tempongko‟s arms and legs,
which were bruised where appellant had grabbed her. At trial, appellant admitted causing
the bruises on Tempongko‟s arm, but did not recall grabbing her by the leg. He
contended he was trying to pick Tempongko up off the floor, even though she did not
want him to do so, because the taxi was waiting for them. He remembered her asking for
help, but did not recall her telling Miranda that she was afraid he would beat her.
3. The November 18, 1999 Incident. On November 18, 1999, the police,
including officer John Tack, were called to Tempongko‟s apartment by Tempongko‟s
mother, who told them that her daughter had gotten into a fight with her boyfriend, and
he had beaten her.4 When they arrived, they found the bedroom door closed, and either
locked or blocked shut. After repeated requests, appellant opened it a few inches,
enabling the police to force it open and pull appellant out of the room. He smelled of
alcohol. Tempongko was inside the bedroom, distraught. The police saw many empty
beer cans or bottles scattered about in the living room.
Tempongko told the police that she and appellant had been drinking to celebrate
their one-year anniversary, and had gotten into an argument, during which appellant
grabbed Tempongko by the hair and held her with her head pulled back for several
4 The jury was instructed that Tempongko‟s mother‟s statement was introduced
only to explain why the police entered the apartment, and not for its truth.

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seconds. After appellant released Tempongko, she left to get her mother and stepfather,
who came back to the apartment with her. Appellant argued with them and yelled at
them, and Tempongko‟s mother left, saying she was going to call the police. Appellant
then forced Tempongko into the bedroom and locked her in along with him for about five
minutes.5 Tempongko did not appear to be injured.
4. The Protective Order Violation. At some point prior to September 7, 2000,
Tempongko obtained an emergency protective order requiring appellant to stay at least
100 yards away from her apartment. However, he still had a key.
On September 7, 2000, the police were dispatched to Tempongko‟s apartment
building. When they arrived, they saw appellant on the street, lurking in the shadows
near the door of the building. The police detained him, and observed that he was slightly
disheveled, had bloodshot eyes and slurred speech, and smelled of alcohol. He was
arrested because he appeared to be so intoxicated as to pose a danger to himself or others.
The police knocked on Tempongko‟s door, and she told them about the emergency
protective order. She appeared to be frightened, and “became almost panic stricken”
when the police told her that they had detained a man outside the building.
According to appellant, he had come to Tempongko‟s apartment, uninvited and
unannounced, because he wanted to see the children, and Tempongko called the police
when he rang the buzzer and called her name. He did not use his key because
Tempongko was not expecting him. He admitted knowing at the time that there was a
protective order prohibiting him from coming within 100 yards of Tempongko‟s
apartment.
B. The Homicide
In early October 2000, appellant started living “off and on” in a room in an
apartment in another neighborhood, which he rented from a man named Oscar Sanchez,
whom he knew through a mutual friend. Sanchez testified that appellant told Sanchez
5 Appellant acknowledged grabbing Tempongko and taking her into the bedroom
with him, but denied locking the door.

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only he had been “thrown out” of his prior residence; appellant did not explain further.
According to appellant, Tempongko never told him that she wanted to end their
relationship; rather, he moved out because he and Tempongko “mutually decided to take
a timeout to kind of reevaluate our relationship.” In an employment application that
appellant filled out on October 13 or 15, 2000, he gave Tempongko‟s address and
telephone number as his own.
Around the same time that appellant moved out of Tempongko‟s apartment, she
started dating a man named Michael Houtz, whom she had known as a friend since
January 2000. Shortly before they started dating, Tempongko told Houtz that she had
finally gotten appellant to break up with her, as she had wanted to do since January 2000.
Tempongko told Houtz that appellant had told her the relationship would end only “over
his dead body [or] over her dead body.”
During the morning of October 22, 2000, which was a Sunday, Houtz picked up
Tempongko and her children (then aged 10 and 5) for a planned excursion to Sacramento
to get Halloween costumes for the children. Meanwhile, according to Sanchez,
appellant‟s roommate, appellant spent most of that morning drinking; he and Sanchez
consumed 24 to 36 cans of beer between the two of them. Appellant testified that he
thought he drank nine cans of beer, but he was not positive.
As both Sanchez and appellant recalled, Tempongko called around noon on
October 22, 2000, and when Sanchez answered the telephone, she asked for appellant.
Sanchez gave appellant the phone, and a 10-minute conversation ensued, during which
Sanchez testified that appellant was calm and did not use any profanity. According to
appellant, Tempongko called him that day because they were supposed to have lunch.
Instead, she told him that some female friends were taking her and the children to buy
Halloween costumes, but she said she would still see him later in the day, and asked him
to call her in the afternoon to find out when she would be home. After the call, appellant
showered, dressed, and left the apartment.
After stopping at Houtz‟s house in Vallejo, Houtz, Tempongko, and her children
arrived in Sacramento at about 2:45 p.m. As they were getting out of the car,

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Tempongko‟s cell phone rang. According to Houtz, Tempongko‟s son, J.N., took the
phone out of her purse, answered it, and then handed it to Tempongko, saying, “Dad is
mad.” Houtz could hear a male voice on the other end of the call, speaking extremely
loudly to Tempongko. Houtz could not understand what Tempongko was saying to the
caller, because she was not speaking in English. After a minute or two, she yelled into
the phone and hung up. J.N. remembered his mother getting what he considered an
unusual number of calls on her cell phone during the Sacramento outing. However, he
did not recall answering the phone himself, or knowing the identity of any of the callers.
Both Houtz and J.N. recalled that after receiving the telephone call, Tempongko‟s
mood changed; she had been acting happy and carefree earlier, but after the call, she
appeared to J.N. to be nervous, and to Houtz to be apprehensive and upset, or at least
embarrassed. Nonetheless, Houtz, Tempongko, and the children went on with their
excursion. Shortly after the call, Tempongko told Houtz that the call had come from
“him,” which Houtz understood to mean Tempongko‟s boyfriend or former boyfriend.
Tempongko complained that he was “bothering” her.
Appellant testified that he called Tempongko around 3:00 p.m. that day from a pay
phone. His recollection was that it was not J.N., but Tempongko herself, who answered
the call. Appellant acknowledged that he might have spoken loudly, due to the
background noise near the pay phone, but averred that he was not upset and did not yell,
nor was he angry or upset at Tempongko for changing their plans. She told him she
would call him later. Appellant testified that he did not tell her to be home by 7:00 p.m.,
and that they did not agree she would be home by any specific time. He also denied
knowing anything about her having met a new male friend, or started dating another man.
When Tempongko and Houtz planned their shopping excursion, she had told
Houtz that she would need to be home by 7:00 p.m. During the trip back, Tempongko
received a few more calls on her cell phone, during which she spoke to the caller or
callers in Tagalog, and sent at least one other call directly to voicemail. She appeared to
Houtz to be “fidgety” and concerned about the time, but she told him not to worry. When
they neared her apartment at about 6:45 p.m., Tempongko appeared to Houtz to become

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alarmed by the sight of a green Honda parked near the door of her building, with a man
who looked Caucasian or Hispanic sitting slumped down in the driver‟s seat.6
Tempongko told Houtz not to stop, and to drive around the block. As they did so,
Tempongko scanned the area carefully. When they returned to her street, the car was still
there, and Tempongko became very frightened, and told Houtz to drive around again, this
time in a larger circle.
After they circled the block a third time, the green Honda was gone, but
Tempongko remained tense, and asked Houtz to circle around one more time. At the end
of this fourth circuit, Houtz pulled into a driveway next to Tempongko‟s building.
Tempongko and the children got out of the car quickly, without saying goodbye; ran into
the building, and shut the door. Shortly after that, Houtz tried to call Tempongko from
his cell phone, both at her home telephone number and on her cell phone. According to
Houtz, J.N. answered the home phone, said his mother was not home, and hung up. The
cell phone rang straight through to voicemail. Houtz then drove by the apartment to
check on them, and noticed a man sprinting away from the side of the street on which
Tempongko lived.7 Everything appeared all right when Houtz checked the front door,
however, so he headed home. While driving home, and soon after he arrived, Houtz tried
several more times to reach Tempongko on her cell phone, but was only able to reach her
voicemail.
6 The prosecution argued that the man in the car was appellant. Appellant denied
having a car at that time, and testified that he traveled to Tempongko‟s that evening by
bus, and had not been in a car waiting for Temponko to arrive. Christina Maldonado,
who lived on the top floor of the three-unit building in which Tempongko had the
basement apartment, recalled that appellant had a car, but was not certain of the make or
model. In an interview with the police on October 24, 2000, Houtz told the police that
the car was a green four-door Honda Civic, and that Tempongko said she had also seen
the same car in front of her house a month earlier.
7 According to the notes the police took of their interview with Houtz on
October 24, 2000, he did not mention that Tempongko told him to circle the block several
times when they came back to her apartment, nor did he mention seeing a man run away
from the vicinity. He merely told them that he had dropped her off at 6:45 p.m.

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In contrast to Houtz‟s testimony, appellant introduced the testimony of Flor Yee.
Yee lived a block away from Tempongko, and her daughter was a school friend of
Tempongko‟s daughter. Yee testified that Tempongko and her children stopped by to see
her for about 10 minutes between 4:00 p.m. and 6:00 p.m. on October 22, 2000. Yee said
that Tempongko and the children seemed happy at the time, and said they had been to
Vallejo that day. Later the same evening, around 8:00 or 9:00 p.m., J.N. came over to
Yee‟s house terrified and crying because his mother had just been killed. He was there
for about 20 minutes, and then the police came.
J.N., who was 18 years old by the time of appellant‟s trial, testified about what
happened inside Tempongko‟s apartment that evening. He said that his mother‟s cell
phone rang several times, but he did not hear the conversations, except that at around
8:15 or 8:30 p.m., he heard his mother arguing with the caller, sounding frantic or at least
upset, and urging the caller not to come to the house.8
Some 30 to 45 minutes later, appellant opened the apartment door with a bang,
entered the apartment without being let in by Tempongko or her children, and began
yelling loudly at Tempongko, angrily asking her where she had been, and with whom.
Tempongko did not answer him. According to J.N., she did not push or strike appellant,
and J.N. did not remember her swearing at him. After appellant yelled at Tempongko
and they argued for about five or ten minutes, something appeared to J.N. to “trigger”
appellant. Appellant walked very quickly into the kitchen area and grabbed a large
kitchen knife with a six-inch blade. When appellant came back to the living room, he
angrily approached Tempongko and began stabbing her repeatedly. She retreated, fell
back onto the couch, put up her arms to try to push appellant away, and tried to grab the
knife, but appellant kept stabbing her. After Tempongko slid to the floor, appellant
stabbed her a few more times, and then ran out of the apartment, still carrying the knife.
8 In an interview recorded in 2007, J.N. said he was not sure whether his mother
told the caller to come to the house, or not to do so.

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Appellant‟s version of these events differed in several respects from J.N.‟s.
Appellant testified that he arrived at about 8:40 p.m., and let himself in with the key he
still had. He did not knock, because they were expecting him. He denied being angry
when he arrived, or banging the door. Appellant maintained that Tempongko was upset
with him for coming over so late, but he acknowledged that she never physically
assaulted him during their argument. Appellant said Tempongko also criticized him for
taking a job washing dishes, at which point they began to argue about money and
exchange angry insults. Tempongko called appellant an “illegal” and a “nobody,” and
said she could “do better” than him.
According to appellant, he then said he was leaving, and this only made
Tempongko even more angry. Finally, she yelled, “ „Fuck you. I was right. I knew you
were going to walk away someday. That‟s why I killed your bastard. I got an
abortion.‟ ”9 Appellant testified that he had not known Tempongko was pregnant or that
she had an abortion, and that learning this shocked him so much that he had no
recollection of what happened next, until he found himself holding a bloody knife, with
blood on his hands. Still in shock, he looked at the children, and then ran out of the
apartment, holding the knife, which he threw away.10 He admitted taking Tempongko‟s
9 This aspect of appellant‟s version of the events was corroborated by portions of
Tempongko‟s medical records introduced into evidence by the defense, which established
that she had an abortion on July 13, 2000.
10 Later that evening, the police found a knife, with Tempongko‟s blood on it, on
the sidewalk at a street corner near her apartment building. A passerby had earlier seen a
Hispanic man near that location, running very fast in the middle of the street, cursing and
muttering to himself in English and Spanish, and carrying a knife with a five-inch to
seven-inch blade. The passerby was not able to identify appellant as that man, however.

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cell phone, explaining that she handed to him while they were arguing, urging him to call
her friend if he did not believe her about where she had been.11
Maldonado, Tempongko‟s neighbor on the top floor, testified that during the
evening on October 22, 2000, she heard sounds of a struggle coming from Tempongko‟s
basement apartment, with what sounded like furniture being knocked over or someone
being thrown against a wall. She heard a muffled male voice, but did not hear a female
voice. She also heard the children screaming, and calling frantically to their mother that
they loved her.
After listening for a couple of minutes, Maldonado looked down the inside
stairwell of the building and saw J.N. running out of the apartment toward the sidewalk.
At that point, she left her apartment by the front door with her cordless phone in her
hand. As she did so, she saw the occupant of the apartment on the middle floor of the
building, Frederick Keagy, standing outside the door with J.N. Keagy had just been
driven home by two friends, and encountered J.N. at the street door of the passage
leading to Tempongko‟s apartment. J.N. was crying hysterically, and called to Keagy
that his mother was hurt, their phone was not working because the cord had been cut or
“messed up,” and he needed to call for help. J.N. told Keagy, “He stabbed my mom,”
and “he ran away.” Keagy did not ask J.N. who “he” was, but J.N. told Keagy‟s friend
Gregory Stork that it was J.N.‟s “dad,” his mother‟s boyfriend. Keagy started up the
stairs to get to a phone, but on the way, he encountered Maldonado. He told her to call
911, which she did.
Meanwhile, Keagy and Stork went into Tempongko‟s apartment and saw her
propped up in the corner by the couch, surrounded by blood, and barely breathing.
Furniture had been knocked over, and according to Keagy and Stork, the telephone had
11 The prosecution introduced business records showing that eight calls were
made from Tempongko‟s cell phone starting at 9:13 p.m. on October 22, 2000, which
was several minutes after the police arrived at Tempongko‟s apartment in response to
Maldonado‟s 911 call. Appellant admitted using the phone to make several calls,
including one to his sister in San Rafael. Some of the calls went to the phone number of
appellant‟s acquaintance Chili Bowles.

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been detached from the wall and was on the floor. Keagy recalled the telephone cord
being next to Tempongko; Stork testified that it was “sort of all over” her. Maldonado
also went into Tempongko‟s apartment after placing the 911 call, and saw the phone jack
still on the wall, but with no telephone connected to it. She did not recall seeing the cord
on Tempongko‟s body.
Appellant denied pulling any telephone cord out of the wall, or at least did not
remember doing so, and testified that he did not recall there being any telephone in the
apartment other than the cordless telephone in the bedroom.12 The statements that
Keagy, Stork, and Maldonado wrote out for the police on the night Tempongko was
killed did not include any information regarding the telephone or the telephone cord.
These witnesses testified at trial, however, that their statements were not necessarily a
complete account of everything they saw. J.N. and Maldonado also both testified that the
apartment had a land line telephone, with a cord, mounted on the wall near the front door,
although Maldonado did not recall when she had last seen it. J.N. did not recall appellant
doing anything to the wall-mounted telephone on the night Tempongko was killed, but he
did remember that he tried to use it to call for help after the stabbing, and it was not
working.
The police report and the investigating officers‟ chronology did not mention
anything about a telephone or a telephone cord at the scene of the homicide. However,
crime scene photographs taken at the time showed a telephone cord on the floor, as well
as the telephone jack in the wall. The officer who took the photographs opined that it
looked as though the cord had been pulled out of the wall jack.
Dr. Boyd Stephens, who was the chief medical examiner for San Francisco at the
time of the homicide, performed an autopsy on Tempongko on October 23, 2000.
Stephens died in the spring of 2005, shortly after his retirement. In his stead, the
prosecution called Dr. Amy Hart, Stephens‟s successor. Based on the autopsy report,
12 The crime scene photographs taken after Tempongko was killed showed a
cordless phone base in one of the bedrooms, and a matching telephone handset on the
bed.

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which was admitted into evidence as a business record, and on her review of Stephens‟s
notes, Hart testified that Tempongko received 17 “sharp force injuries” that were
consistent with wounds that could be inflicted by the knife found near Tempongko‟s
apartment, as well as 4 blunt force injuries. Some of the sharp force injuries were
wounds on Tempongko‟s hands that Hart characterized as “defensive,” that is, as injuries
that could have been sustained by someone trying to ward off an assault with a sharp
weapon. Hart testified that in her opinion, based on the records that she reviewed,
Tempongko died of hypovolemic shock, which is the medical term for what happens
when someone bleeds to death.
C. Appellant’s Actions After the Homicide
Sometime after 9:00 p.m. on the night Tempongko was killed, appellant showed
up at a bar in the Tenderloin where he was a regular patron. According to appellant, he
flagged down a taxi in Tempongko‟s neighborhood, and had it take him to the bar so he
could look for his only close friend, Ezequiel Perez. While appellant was in the taxi, he
realized that he had taken Tempongko‟s cell phone with him, because it rang. He turned
it off without answering it,13 though he turned it back on later to make outgoing calls.
When appellant arrived at the bar, both the owner and the bartender noticed that
appellant had blood and scratches on his hand, and blood on his shirt. Appellant
appeared nervous, and told them he had gotten into a fight outside the bar. Appellant
went to the bar‟s restroom, where he cleaned up; he also asked if the bar owner had an
extra shirt he could put on, and after the owner found one, he changed into it. Appellant
told the bar owner that the police were looking for him, and obtained permission to use
the bar‟s phone so he could call a friend.
Shortly thereafter, appellant‟s friend Perez met him at the bar. They went outside
the bar and called Bowles, who was a close friend of Perez‟s, to ask him for a ride; they
then left the immediate area of the bar. Bowles picked up appellant and Perez, and took
13 This testimony was consistent with Houtz‟s statement that he tried to call
Tempongko‟s cell phone some time after he dropped her off, but only reached her
voicemail.

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them to his apartment in San Bruno, where they spent the night. At about 2:00 a.m. on
October 23, 2000, appellant called his roommate, Sanchez, and told Sanchez in Spanish
that he had done something wrong.
The following evening, Bowles drove appellant to a convenience store or
laundromat somewhere north of the Golden Gate Bridge. At the store, appellant met
briefly with his sister, spoke with her for a few minutes, embraced her, and then left with
Bowles. Appellant testified that he met with his sister to say goodbye to her, and to ask
her, when she found out what he had done, to explain it to their mother. Later that
evening, appellant asked Bowles to take him to the Greyhound bus station in
San Francisco, where appellant caught a bus to Los Angeles, telling Bowles that he was
heading for Mexico. According to appellant, he went to Mexico at Perez‟s suggestion,
because he was afraid. Appellant remained in Mexico until he was apprehended in
June 2006, and returned to San Francisco in 2007.
D. Procedural History
The San Francisco District Attorney filed an information on November 21, 2007,
charging appellant with the willful, deliberate, premeditated murder of Tempongko (Pen.
Code, § 187, subd. (a)14), and alleging that he used a deadly weapon, a knife, in the
commission of the crime (§ 12022, subd. (b)(1)). The presentation of evidence at
appellant‟s trial began on September 8, 2008. On September 30, 2008, the jury acquitted
him of first degree murder, but found him guilty of second degree murder, and found the
weapon use allegation true. On December 12, 2008, the trial court sentenced appellant to
15 years to life in prison, with an added one-year term for the use of the knife.
Appellant‟s notice of appeal was filed the same day.
DISCUSSION
A. Jury Instruction on Provocation and Voluntary Manslaughter
At appellant‟s trial, he did not deny that he killed Tempongko. The only real issue
presented for the jury was the type and degree of homicide of which appellant was guilty.
14 All further statutory references are to the Penal Code unless otherwise noted.

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The prosecution argued that the killing was intentional, premeditated, and deliberate, and
that appellant should therefore be convicted of first degree murder. Appellant argued that
because of provocation by Tempongko, appellant was guilty only of voluntary
manslaughter. As already noted, the jury opted for a middle ground, finding appellant
guilty of second degree murder. Appellant contends that this verdict must be reversed,
because the jury was improperly instructed on the law regarding voluntary manslaughter.
Voluntary manslaughter is an unlawful killing, committed either with the intent to
kill or with conscious disregard for life, but without malice. (See People v. Breverman
(1998) 19 Cal.4th 142, 153.) Malice may be negated either by imperfect self-defense
(not an issue in this case) or by provocation resulting in a “sudden quarrel or heat of
passion.” (§ 192, subd. (a).) The provocation must meet both a subjective test—that is,
the defendant must actually have been provoked (not an issue for purposes of the present
appeal)—and an objective test of sufficiency; that is, it must be of such a nature as to
induce a reasonable person of average disposition and self-control to act out of strong
emotion, rather than rationally. (See generally 1 Witkin & Epstein, Cal. Criminal Law
(3d ed. 2000) Crimes Against the Person, § 217, pp. 828-829.)
The foregoing legal principles have long been settled. The question appellant
raises on this appeal, however, has not yet been addressed by the California Supreme
Court. Appellant argues that in order for a homicide to constitute voluntary
manslaughter, the provocation need not be such as to induce a reasonable person to kill;
rather, all that is required is that the provocation be sufficient to induce a reasonable
person to act from emotion rather than reason. Appellant further contends that his
conviction must be reversed because the jury instructions given in this case did not make
this clear, and the trial judge denied his trial counsel‟s request for clarification on this
point.
As support for this argument, appellant relies on People v. Najera (2006) 138
Cal.App.4th 212 (Najera). In Najera, the prosecutor argued that the defendant‟s offense
would be voluntary manslaughter only if “ „a reasonable person [would] do what the
defendant did‟ ” in response to the particular provocation shown. (Id. at p. 223, italics

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omitted.) The defendant‟s trial counsel failed to object to this, and on appeal, the
defendant argued that this omission constituted ineffective assistance of counsel. The
Najera court agreed that the prosecutor‟s argument was improper. As the court
explained, “The focus is on the provocation—the surrounding circumstances—and
whether it was sufficient to cause a reasonable person to act rashly. How the killer
responded to the provocation and the reasonableness of the response is not relevant.” (Id.
at p. 223, italics added.)
The jury instruction on provocation given in this case was as follows: “In
deciding whether the provocation was sufficient, consider whether a person of average
disposition would have been provoked and how such a person would react in the same
situation knowing the same facts.” (Italics added.) On the authority of Najera, supra,
138 Cal.App.4th 212, appellant argues that this instruction was incorrect. Appellant
contends that the instruction permitted the jury to reject his voluntary manslaughter
theory if it did not believe that a reasonable person would have been provoked to kill by
Tempongko‟s remarks, even if it found that those remarks would have caused a
reasonable person to act rashly rather than rationally.
Concededly, the aspect of Najera, supra, 138 Cal.App.4th 212 on which appellant
relies was dictum. The asserted provocation in that case was that the victim called the
defendant a “faggot” and pushed him. The court concluded that this was not sufficient
provocation to entitle the defendant to a voluntary manslaughter instruction. Thus, the
defendant‟s trial counsel‟s failure to object to the prosecutor‟s incorrect statement of the
law on voluntary manslaughter was not ineffective assistance of counsel, because the
defendant was not prejudiced by it. (Id. at pp. 225-226.) For the same reason, the court
declined to consider whether the voluntary manslaughter instruction given in that case
(i.e., CALJIC No. 8.42) was defective on the same issue, because it was “ambiguous as to
whether the reasonable person test is the standard for becoming aroused or the standard
for acting after becoming aroused.” (Id. at p. 226.)
In the present case, the provocation instruction, which we have quoted ante, was
based on CALCRIM No. 570, as it existed at the time of appellant‟s trial. Significantly,

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this CALCRIM instruction was modified a few months later, in December 2008, on the
precise issue raised by appellant here. The revision made the following changes to the
pertinent paragraph (indicated by underlining for additions and strikeout type for
deletions): “It is not enough that the defendant simply was provoked. The defendant is
not allowed to set up (his/her) 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
would have been provoked and how such a person would react, in the same situation and
knowing the same facts, would have reacted from passion rather than from judgment.”
(Cal. Official Reports, Advance Sheet No. 5 (Feb. 19, 2009), Amendments to Criminal
Jury Instructions, pt. 8, pp. 12-17.) A report to the Judicial Council of California from
the Advisory Committee on Criminal Jury Instructions dated October 10, 2008,
recommended this change “because of concern that the original draft [of CALCRIM
No. 570] could raise doubt in a juror‟s mind about whether the state of mind required for
voluntary manslaughter was that an average person similarly situated would have been
provoked to kill, or whether provocation resulting in passion rather than judgment was
sufficient.” The revision “clarified that the latter is required.” The December 2008
revision of CALCRIM No. 570 also added a citation to Najera, supra, 138 Cal.App.4th
212, to the commentary accompanying the instruction.
(<http://www.courtinfo.ca.gov/jc/documents/reports/120908item5.pdf> [as of Mar. 29,
2011].)
Notwithstanding the revision of CALCRIM No. 570, respondent argues that the
dictum in Najera, supra, 138 Cal.App.4th 212 was wrong, and conflicts with two other
cases, People v. Fenenbock (1996) 46 Cal.App.4th 1688 (Fenenbock), and People v.
Superior Court (Henderson) (1986) 178 Cal.App.3d 516 (Henderson). In our view,
neither of these cases supports such a proposition. The defendant in Fenenbock killed his
victim allegedly in response to a report that the victim had molested a child, but the
defendant and the child had no personal bond. The court concluded that “there [was] no
evidence here from which the jury could have found provocation so serious that it would

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produce a lethal response in a reasonable person.” (Fenenbock, at p. 1705.) Similarly,
the Henderson court stated in a footnote that “[t]he concept of „heat of passion‟ allows a
defendant to reduce a killing from murder to manslaughter only in those situations where
the provocation would trigger a homicidal reaction in the mind of an ordinarily
reasonable person under the given facts and circumstances. [Citation.]” (Henderson, at
p. 524, fn. 4.) Neither decision considered whether it is necessary for the response or
reaction to be lethal or homicidal, or purported to add a “reasonable conduct”
requirement to the law of voluntary manslaughter.
Respondent also relies on language in other cases referring to the mental state
needed for voluntary manslaughter as “homicidal rage,” or using similar terms.15 This
language, however, addresses the necessary degree of arousal in the defendant‟s mental
state, not the nature of his conduct. None of these cases holds provocation is sufficient
only if it would cause an ordinary person of average disposition to react with deadly
force. To the extent their language suggests otherwise, it was not the result of the court‟s
consideration and analysis of an argument actually raised in the case, and thus is not a
precedential holding. (See People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 [“cases
are not authority for propositions not considered”].)
On the other hand, the analysis in Najera, supra, 138 Cal.App.4th 212, though
dictum due to the court‟s ultimate conclusion that the defendant was not prejudiced, was
arrived at after consideration of an issue actually raised in the case. Moreover, it is
consistent with the longstanding qualitative standard for provocation; i.e., that it be
15 (See, e.g., People v. Avila (2009) 46 Cal.4th 680, 706 [“[r]easonable people do
not become homicidally enraged”]; People v. Carasi (2008) 44 Cal.4th 1263, 1307
[“ „homicidal rage or passion‟ ”]; People v. Koontz (2002) 27 Cal.4th 1041, 1086 [same];
People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1236 [same]; People v. Lee (1999) 20
Cal.4th 47, 59 [“deadly passion”]; People v. Dixon (1995) 32 Cal.App.4th 1547, 1556,
disapproved on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 90-91
[“homicidal rage”]; People v. Pride (1992) 3 Cal.4th 195, 250 [“homicidal rage or
passion”]; see also People v. Golsh (1923) 63 Cal.App. 609, 614 [to be adequate,
provocation must be “such as would have a like effect upon the mind and emotions of the
average man”].)

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sufficient to cause an ordinarily reasonable person to act from passion rather than
judgment. (See People v. Logan (1917) 175 Cal. 45, 49 [provocation sufficient to arouse
the passions of the ordinarily reasonable man]; People v. Manriquez (2005) 37 Cal.4th
547, 583-584 [conduct sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and reflection].) More
importantly, the Najera analysis protects the qualitative standard from being distorted by
the quantitative notion that provocation must reasonably trigger a certain heightened level
of reactive conduct, specifically lethal force, in order to reduce murder to manslaughter.
Such a notion is erroneous. What negates malice is simply a state of mind obscured by
passion. (People v. Carasi, supra, 44 Cal.4th at p. 1306.) That state of mind can be
induced by any violent, intense, or enthusiastic emotion, except revenge, including anger,
rage, and fear of death or bodily harm. (People v. Lasko (2000) 23 Cal.4th 101, 108.)
Thus, in the context of voluntary manslaughter, provocation is sufficient if it would
trigger such a state of mind in a reasonable person. It need not further cause a particular
level of conduct, let alone cause a reasonable person to react with lethal violence.
We agree with appellant that the provocation instruction given in this case did not
expressly limit the jurors‟ focus to whether the provocation would have caused an
average person to act out of passion rather than judgment. Instead, the challenged
language invited the jurors to consider what would and would not be a reasonable
response to the provocation. More specifically, it allowed, and perhaps even encouraged,
jurors to consider whether the provocation would cause an average person to do what the
defendant did; i.e., commit a homicide. As we have explained, however, whether an
average person would be provoked to kill is not a proper consideration in determining
whether provocation was sufficient. Thus, insofar as the instructional language permits a
jury to decide a crucial issue based on proper and improper considerations, it is
ambiguous.
As appellant points out, the existence of the ambiguity, and its effect on this case,
is highlighted by the fact that the jury asked a question during deliberations on precisely
the relevant issue—i.e., whether the provocation must be sufficient to induce a reasonable

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person to commit homicide, or other, less severe rash acts. The trial judge‟s response
was that the provocation “must be such as to cause a person of average disposition in the
same situation and knowing the same facts to do an act rashly and under the influence of
such intense emotion that his judgment or reasoning process was obscured.” As
appellant‟s trial counsel unsuccessfully argued below, this answer did not really focus on
the jury‟s question, and did not really clarify the aspect of the instruction at issue.
In a related argument, appellant contends that the prosecutor committed
misconduct during closing argument by misstating the law regarding the standard for
determining whether Tempongko‟s conduct was sufficiently provocative to negate the
malice element for murder. Specifically, appellant points to a passage from the closing
argument in which the prosecutor used the examples of stubbing a toe, getting cut off in
traffic, or being jealous to argue that minor provocation is not sufficient to cause a
reasonable person to kill someone. This argument may not have risen to the level of
misconduct, but it did serve to reinforce the problem with the jury instruction on
provocation, because it encouraged the jury to resolve any ambiguity in the instruction‟s
language in the manner rejected by Najera, supra, 138 Cal.App.4th 212. (See People v.
Dieguez (2001) 89 Cal.App.4th 266, 276 [when defendant contends jury instruction was
unclear, issue is whether there is reasonable likelihood jury misconstrued or misapplied
law in light of instructions, trial record, and arguments of counsel].)
Respondent argues, and the dissent here concludes, that even if there was error in
this regard, it was harmless. In assessing whether the error was prejudicial, we apply the
Watson test (People v. Watson (1956) 46 Cal.2d 818, 836), and consider whether it is
reasonably probable that appellant would have obtained a more favorable result in the
absence of the error. (See People v. Breverman, supra, 19 Cal.4th at pp. 164-179 [error
in instructions on lesser included offense is assessed under Watson test].) Here, the jury
acquitted appellant of first degree murder, thus rejecting the prosecution‟s argument that
his killing of Tempongko was premeditated. Moreover, the jury‟s question to the court,
discussed ante, shows that the jury was confused by CALCRIM No. 5.70, and that it
actively considered whether the provocation evidence was sufficient to negate malice.

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That confusion was certainly exacerbated by the prosecutor‟s closing argument, as we
note above. Therefore, we agree with appellant that under all of these circumstances, the
error in the jury instructions cannot be characterized as harmless. As a result, appellant‟s
conviction must be reversed. Having reached this conclusion, we consider appellant‟s
other arguments only to the extent that it is appropriate to do so in order to assist the trial
court in the event of a retrial.
B. Admission of Hearsay re Tempongko’s Statements to Police
While appellant was still at large after Tempongko‟s killing, the United States
Supreme Court held in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) that the
admission of testimonial out-of-court statements, even if authorized by an exception to
the hearsay rule, violates the confrontation clause. In ruling on the prosecution‟s proffer
of Tempongko‟s out-of-court statements to police in the wake of appellant‟s acts of
domestic violence, the trial court correctly understood that it was bound by Crawford‟s
holding. Nonetheless, appellant now argues that the trial court erred in applying that
holding to the present case. We address these arguments for the benefit of the trial court
in the event appellant is retried on remand.
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the court clarified the term
“testimonial,” as used in this context, as follows: “Statements are nontestimonial when
made in the course of police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.” (Id. at
p. 822, fn. omitted.) At the same time, the court noted that it was not “attempting to
produce an exhaustive classification of all conceivable statements” as testimonial or
nontestimonial. (Ibid.)
Davis, supra, 547 U.S. 813, was decided together with a consolidated companion
case, Hammon v. Indiana (2006) 547 U.S. 813 (Hammon). In Davis, the Supreme Court
held nontestimonial, and therefore admissible, tape recorded statements made by a

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domestic violence victim during a 911 call, in which the victim responded to the 911
operator‟s questions by identifying her assailant as the defendant, and describing what he
was doing to her as the call progressed. (Davis, supra, 547 U.S. at pp. 817, 828-829.) In
Hammon, police officers responding to a domestic violence call encountered the victim
alone on the front porch of her home, appearing frightened, but denying that anything
was wrong. After the officers entered the home, one of them questioned the victim
outside the defendant‟s presence, asking her what had happened. She responded that the
defendant had thrown her down onto broken glass and punched her in the chest. The
Supreme Court held that because there was no ongoing emergency at the time, and no
continuing immediate threat to the victim, the statements were obtained for the purpose
of investigating a past crime, rather than to guide police who were intervening in an
ongoing emergency. Thus, the statements were testimonial, and their admission was
barred by the confrontation clause. (Hammon, supra, 547 U.S. at pp. 820-821, 830.)
In analyzing application of Davis, supra, 547 U.S. 813, and Hammon, supra, 547
U.S. 813, to the facts of the present case, we must be guided by our own Supreme Court‟s
interpretation of Davis in People v. Cage (2007) 40 Cal.4th 965. In that case, the court
noted that in order for an unsworn statement to be testimonial, “it must have occurred
under circumstances that imparted, to some degree, the formality and solemnity
characteristic of testimony.” (Id. at p. 984, fn. omitted.) The statement also “must have
been given and taken primarily for the purpose . . . [of] establish[ing] or prov[ing] some
past fact for possible use in a criminal trial,” an issue that is “to be determined
„objectively,‟ considering all the circumstances that might reasonably bear on the intent
of the participants.” (Ibid., original italics.) Consistent with these principles, responding
to questions from police “in a nonemergency situation, . . . where deliberate falsehoods
might be criminal offenses,” is testimonial; however, “statements elicited by law
enforcement officials are not testimonial if the primary purpose in giving and receiving
them is to deal with a contemporaneous emergency, rather than to produce evidence
about past events for possible use at a criminal trial.” (Ibid.)

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In the present case, appellant contends that the trial court erred in concluding that
some of the statements Tempongko made to the police who came in response to her calls
about appellant‟s domestic violence were not testimonial as that term was clarified in
Davis, supra, 547 U.S. 813. Specifically, appellant argues that the following evidence
should have been excluded: (1) police officer Dharmani‟s testimony that after he
responded to Tempongko‟s 911 call on April 28, 1999, she told him that appellant had
broken a window in her apartment after she refused to let him in; that when she finally let
him in, he threw her to the ground, pulled her by her hair, and then left; and that he later
left a telephone message threatening to return; and (2) police officer Tack‟s testimony
that when he responded to Tempongko‟s mother‟s call to the police on November 18,
1999, and forced open the door to Tempongko‟s bedroom, Tempongko told him that
appellant had grabbed her by the hair and pulled her head back, causing her to leave the
apartment to get her mother and stepfather, and that when she returned with them,
appellant forced her into the bedroom and locked the door. Appellant argues that because
there was no ongoing emergency at the time these statements were made, and the
statements concerned past events rather than a currently developing situation, the
statements were testimonial in nature.
Respondent counters by arguing that the facts of this case are more similar to those
in Davis, supra, 547 U.S. 813, than to those in Hammon, supra, 547 U.S. 813, and by
citing two post-Davis California Court of Appeal cases involving similar facts. In one,
People v. Saracoglu (2007) 152 Cal.App.4th 1584 (Saracoglu), a woman and her child
came to a police station and spoke to two officers there. The woman was nervous,
crying, upset, and scared, and had visible cuts and bruises. She told the police that about
30 minutes earlier, the defendant had choked, pushed, hit, and threatened her, and told
her he would shoot her if she went to the police. She explained that she had come to the
police station because she was afraid of the defendant, and accepted the officers‟ offer to
get her an emergency protective order. The officers then went to her home and arrested
the defendant.

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The woman failed to appear to testify at the defendant‟s trial, so the trial court
permitted one of the police officers to testify at trial about what the woman told him at
the police station. (Saracoglu, supra, 152 Cal.App.4th at p. 1587.) The Court of Appeal
upheld the trial court‟s ruling. In so doing, the court rejected not only the defendant‟s
contention, but also the Attorney General‟s concession that the woman‟s statements were
testimonial because they described events that had already occurred. (Id. at pp. 1596,
1598.) Rather, the court concluded that “[o]bjectively viewed, the primary purpose of
[the woman]‟s initial interrogation by [the officer] was „to deal with a contemporaneous
emergency, rather than to produce evidence about past events . . . .‟ [Citation.]” (Id. at
p. 1597.) The court noted that the woman told the police that the defendant had
threatened to kill her if she went to them. This implied that she could not return home
without facing that threat; thus, her visit to the police station constituted part of an
ongoing emergency situation. (Ibid.) In short, the woman‟s “primary purpose for
making her initial statements to [the officer] was to gain police protection,” rather than to
report a past crime. (Id. at p. 1598.)
The second case on which respondent relies, People v. Banos (2009) 178
Cal.App.4th 483 (Banos), involved a defendant who was accused of killing his ex-
girlfriend after a history of domestic violence. The prosecution offered evidence of
statements that the victim made to police on five occasions: (1) during a meeting with a
police officer in the victim‟s apartment, in which she related that the defendant had
punched and threatened her earlier that day, and then called while she was waiting for the
police to arrive and threatened to kill her; (2) during another meeting with the same
police officer later the same day, in which the victim told the officer that the defendant
had come back to her apartment after the officer left, and had hit her and threatened her
again; (4) during a 911 call in March 2004, in which the victim told the dispatcher that
the defendant was inside the victim‟s apartment, in violation of a restraining order, and
that she was afraid he would attack her; and (5) during a conversation with the officer
who responded to the same 911 call, in which the victim reiterated what she had told the
dispatcher. (Id. at pp. 491-492.)

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The Banos court held that the victim‟s statements during the March 2004 call to
911, and her statements to the officer who responded to the call, were admissible as non-
testimonial because the victim‟s “primary purpose for making the statements to the 911
dispatch officer was to gain police protection” in the context of an “ongoing emergency.”
(Banos, supra, 178 Cal.App.4th at p. 497.) The court held that the other three statements
were testimonial for confrontation clause purposes, however, because on each occasion,
the victim was reporting past events at a time when there was no ongoing emergency. On
the first occasion, the victim was home, the defendant was not present, and the victim
was upset, but not distraught. On the other two occasions, the defendant had already
been detained by the police when the victim gave them her version of the events. (Id. at
pp. 497-498.)16
Applying the principles set forth in the cases discussed above to the facts of the
present case, we conclude that Tempongko‟s statements to Tack on November 18, 1999,
were properly admitted. The police arrived to intervene in what they were told was an
ongoing episode of domestic violence, and had to force open the door to Tempongko‟s
bedroom. Tempongko‟s statements to them were made moments after the police arrived,
and while appellant was still present in Tempongko‟s apartment. When the police spoke
with Tempongko, they were in the process of determining what action they needed to
take in order to protect her from possible harm. Accordingly, objectively viewed,
Tempongko‟s statements were made primarily to inform the police in their efforts to deal
with an ongoing emergency, and thus were not testimonial.
In contrast, Tempongko‟s statements to Dharmani on April 28, 1999, were made
after appellant‟s assault on Tempongko had already concluded, and he had left her
apartment. Tempongko was standing on a public street when she spoke to Dharmani, and
presumably was free to go from there to any place of safety she chose, but told Dharmani
she would be more comfortable going back to her apartment. Thus, Tempongko‟s
16 The court held that the statements were nonetheless admissible under the
forfeiture by wrongdoing exception to the confrontation clause. (Id. at pp. 498-504.)
That issue is not presented in this case.

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statements were not made primarily to obtain police assistance in a present, ongoing
emergency, but rather to report an earlier, already completed assault. Accordingly, the
statements were testimonial in nature, and are not admissible under Crawford, supra, 541
U.S. 36, and its progeny.
C. Admission of Evidence of Prior Domestic Violence
Appellant contends that the trial judge erred in admitting evidence of what
appellant characterizes as “four alleged incidents of domestic violence” between himself
and Tempongko, under the authority of Evidence Code section 1109. The evidence at
issue actually consisted of three incidents of domestic violence and one violation of a
protective order against domestic violence, all of which we will refer to collectively as
the prior domestic violence evidence. Appellant‟s position is that the risk of undue
prejudice from the prior domestic violence evidence outweighed its probative value, so
that it should have been excluded under Evidence Code section 352 (section 352). For
the benefit of the trial court on remand, we consider whether the admission of this
evidence constituted an abuse of the trial court‟s discretion under section 352. (See
People v. Rodrigues (1994) 8 Cal.4th 1060; People v. Rucker (2005) 126 Cal.App.4th
1107, 1119-1120.)
Appellant contends that the prior domestic violence evidence lacked any probative
value because it was irrelevant to how Tempongko died. This argument ignores the
relevance of this evidence to appellant‟s defense, which was that Tempongko asked him
to come to her apartment that night, and provoked him by telling him that she had aborted
her pregnancy in the belief he would eventually leave her. This defense placed at issue
the state of mind of both appellant and Tempongko, and the prior domestic violence
evidence had probative value on both. As respondent points out, by showing that
appellant had a propensity for domestic violence, as permitted by Evidence Code
section 1109, the prior domestic violence evidence tended to undercut appellant‟s
contention that he stabbed Tempongko only because her provocation triggered in him a
mental state negating malice.

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Similarly, Tempongko‟s state of mind regarding appellant and her relationship
with him was directly relevant to the plausibility of appellant‟s version of the facts. In
this respect, this case is similar to People v. Escobar (2000) 82 Cal.App.4th 1085, 1092,
1102-1104 (Escobar), in which the defendant argued that his killing of his wife was
voluntary manslaughter because she provoked him by revealing her infidelity, insulting
him, and kicking him. In that case, this court concluded that the wife‟s prior statement to
a friend that she wanted to leave the defendant, but was afraid he would kill her, was
admissible to rebut the defendant‟s claim of provocation by showing the wife‟s fear of
him, making it unlikely that she would provoke him in the manner he described. Here,
the prior domestic violence evidence showed that Tempongko wanted to end her
relationship with appellant, and was afraid of him, thereby making it less likely that she
would invite him over to her apartment, much less make highly provocative comments to
him once he arrived. Thus, here as in Escobar, the challenged evidence had probative
value in tending to rebut appellant‟s defense. Assuming the basis for appellant‟s defense
remains the same in future proceedings, the evidence will remain probative for the same
reasons.
Appellant further argues that the prior domestic violence evidence was unduly
prejudicial, because it tended to evoke an emotional bias against him on the part of the
jury. In view of the undisputed fact that appellant stabbed Tempongko to death in front
of her two young children, it is highly unlikely that the jury was unfairly or unduly
influenced by hearing evidence that appellant had previously committed acts against
Tempongko of a non-lethal nature. Accordingly, we find no abuse of discretion in the
trial court‟s decision that the probative value of the prior domestic violence evidence
outweighed its prejudicial effect. (See Escobar, supra, 82 Cal.App.4th at p. 1097 [prior
incident of domestic abuse unlikely to have significant impact on jury in context of
undisputed evidence of defendant‟s “extraordinarily violent conduct” in killing wife];
People v. Jennings (2000) 81 Cal.App.4th 1301, 1315 [no danger of jury confusion where
prior incidents of domestic violence were no more egregious than charged offense];

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People v. Brown (2000) 77 Cal.App.4th 1324, 1338 [evidence of prior domestic violence
properly admitted where not inflammatory, and less serious than charged act].)17
D. Admission of Hearsay re Tempongko’s Statements to Houtz
The trial court permitted Houtz to testify about several statements that Tempongko
made to him regarding appellant, ruling that these statements were admissible to show
Tempongko‟s state of mind, as provided in Evidence Code section 1250 (section 1250).
Appellant now contends that the challenged statements should not have been admitted, on
three grounds: first, Tempongko‟s state of mind was not in issue, and the statements were
not offered to prove or explain her acts or conduct; second, the statements in question
were not “statement[s] of [Tempongko‟s] then existing state of mind, emotion, or
physical sensation” (§ 1250); and third, even if admissible under section 1250, the
evidence should have been excluded under section 352 as more prejudicial than
probative. We review these contentions for the guidance of the trial court in exercising
its discretion in the event of a retrial on remand. (See People v. Ortiz (1995) 38
Cal.App.4th 377, 386 (Ortiz) [“The trial court is vested with broad discretion in
determining the admissibility of evidence. [Citation.] This is particularly true where, as
here, underlying that determination are questions of relevancy, the state of mind
exception to the hearsay rule and undue prejudice. [Citation.] The lower court‟s
determination will be reversed only upon a finding of abuse. [Citations.]”].)
The specific testimony by Houtz to which appellant objects is as follows:
(1) Tempongko told Houtz during the early months of their acquaintance that she had an
ex-boyfriend (evidently referring to appellant); (2) during their outing to Sacramento on
17 Appellant also contends that the admission of the prior domestic violence
evidence rendered his trial fundamentally unfair, in violation of his federal due process
rights. Appellant recognizes that this argument is vitiated by People v. Falsetta (1999)
21 Cal.4th 903, 917 [admission of prior uncharged sex offenses under statute similar to
Evid. Code § 1109 did not violate due process], but explains that he raises it to preserve it
for federal review. In light of our reversal on other grounds, we need only acknowledge
here that this issue has been properly raised and preserved at this stage of the
proceedings.

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the day Tempongko was killed, her demeanor changed after she received a telephone call
from appellant; (3) after getting that call, Tempongko said that appellant kept “bothering
her”; (4) Tempongko told Houtz in early October 2000 that in her mind, her relationship
with appellant had been over since January 2000, but he had not been willing to let her
go; (5) Tempongko told Houtz that appellant had not realized his relationship with her
was over until recently, and had told her before then that the end of their relationship
would occur only over his or her dead body; and (6) when they neared her apartment
building upon their return from the Sacramento trip, Tempongko told Houtz not to stop,
and to drive around the block instead.
Two of the statements at issue (items (2) and (6) in the above list) simply are not
hearsay, and thus were properly admitted over appellant‟s hearsay objection. Houtz‟s
testimony that Tempongko‟s demeanor changed after the telephone call is a description
of his own observations, not a recitation of an out-of-court statement by Tempongko. His
statement that Tempongko told him not to stop, but to drive around the block, is a report
that Tempongko gave a request or command, not a recitation of an out-of-court statement
of fact offered for its truth, and therefore also is not hearsay.18 These two items of
evidence also cannot be characterized as more prejudicial than probative, so even if
appellant‟s objection under section 352 applied to them, the trial court was within its
discretion in overruling it. Accordingly, our analysis of appellant‟s arguments about
18 Hearsay is “evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the matter stated.”
(Evid. Code, § 1200, subd. (a), italics added.) “Requests and words of direction generally
do not constitute hearsay. [Citations.]” (People v. Garcia (2008) 168 Cal.App.4th 261,
289; see People v. Alexander (2010) 49 Cal.4th 846, 908 [defendant‟s girlfriend‟s
statement that he asked her to determine accomplice‟s whereabouts and tell accomplice to
“stay strong” was not hearsay, because offered not for truth, but for fact that defendant
made request]; People v. Jurado (2006) 38 Cal.4th 72, 117 [“Because a request, by itself,
does not assert the truth of any fact, it cannot be offered to prove the truth of the matter
stated.”]; People v. Reyes (1976) 62 Cal.App.3d 53, 67 [declarant‟s “words of direction
or authorization do not constitute hearsay since they are not offered to prove the truth of
any matter asserted by such words”].)

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Houtz‟s testimony is confined to items (1), (3), (4), and (5) on the above list, which we
will refer to collectively as the challenged statements.
Appellant‟s first argument is that the challenged statements were not admissible
under section 1250 because Tempongko‟s state of mind was not at issue. This contention
shares a faulty premise with his argument, discussed ante, that the prior domestic
violence evidence lacked probative value for the purpose of section 352. Like the prior
domestic violence evidence, the challenged statements were relevant to show
Tempongko‟s state of mind, i.e., that she wanted to end her relationship with appellant
and was afraid of him. Appellant argues that Tempongko‟s state of mind did not make
his theory of the case implausible, because she had previously continued to see appellant
after he assaulted her, and had previously gotten back together with him despite her fear
of him. These facts go to the weight of the challenged statements, however, and not to
their admissibility.
We turn now to appellant‟s contention that the challenged statements were not
admissible under section 1250 as statements of Tempongko‟s then existing state of mind,
because they described behavior, attitudes, and words that Tempongko, in speaking to
Houtz, attributed to appellant. Appellant‟s argument clearly does not apply to
Tempongko‟s statements evidencing that in her view, her relationship with appellant was
over (item (1) and part of item (4) on the list). Nor can it reasonably be argued that
evidence of this attitude on Tempongko‟s part was more prejudicial than probative.
Appellant is correct, however, that the remaining statements—item (3) (appellant
kept “bothering” Tempongko); the rest of item (4) (appellant was not willing to let
Tempongko go); and item (5) (appellant did not realize his relationship with Tempongko
was over, and told her it would end only over his or her dead body)—did not expressly
describe Tempongko‟s present state of mind, and therefore were not admissible under the
state of mind exception as codified in section 1250. Respondent urges that these
statements were nonetheless admissible, with an appropriate limiting instruction, as non-
hearsay circumstantial evidence of Tempongko‟s state of mind.

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In making this argument, respondent relies on the analysis set forth in Ortiz, supra,
38 Cal.App.4th at pages 385-395. As the Ortiz court cogently explained, “The statement:
„I am afraid of John,‟ is hearsay if offered to prove that the declarant fears John. If the
declarant‟s state of mind is relevant, the statement is admissible under section 1250. If a
declarant says: „John is dangerous,‟ the analysis becomes more difficult. If offered to
prove John is dangerous, the statement is inadmissible hearsay. If, however, the
statement is offered merely to prove the victim believed John to be dangerous, the
statement is not offered for its truth (thus not hearsay) but merely as circumstantial
evidence of the declarant‟s mental state. A similar result obtains when the statement
describes conduct which the victim believes the appellant has engaged in. Examples
include, „John keeps calling my house and hanging up when I answer,‟ or „John keeps
driving by my house at night, but when I get to the window, he‟s gone.‟ The statement
reflects a conclusion by the declarant which is manifestly unsupported by personal
knowledge. However, if offered to prove the declarant‟s state of mind, the accuracy of
the conclusion is irrelevant. If offered to prove a fearful state of mind of the declarant,
what is important is not whether John actually engaged in the conduct, but that declarant
believes he did. Certainly, there remains the question whether the declarant honestly
believes John engaged in the reported conduct. However, a jury could find the declarant
honestly believed John had engaged in the conduct without necessarily finding that John
had, in fact, done so. A clear limiting instruction can, in large part, dispel prejudicial
misuse of such evidence.” (Id. at p. 390, original italics.)
We agree with respondent that under the analysis set forth in Ortiz, supra, 38
Cal.App.4th at pages 385-390, the portions of the challenged statements in which
Tempongko described appellant‟s attitudes and behavior were admissible, with proper
limiting instructions, as evidence that Tempongko believed the things she said about
appellant, though not as evidence that the underlying facts were true. So construed, these
portions of the challenged statements were relevant to rebut appellant‟s provocation
defense by showing Tempongko believed that appellant was resistant to their breakup
(thus making it less likely that she would invite him over, only to end up berating him for

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abandoning her), and believed that he had threatened to harm her or himself if she
insisted on separating from him (thus making it less likely that she would provoke him).
Turning to appellant‟s section 352 argument, as applied to the three portions of the
challenged statements admissible under the theory described above, there is only one—
the representation that appellant told Tempongko their relationship would only end over
his or her dead body—that might qualify as more prejudicial than probative. In the event
this issue arises again on retrial, the factual context may have changed in light of tactical
decisions by counsel, or differences in the other evidence presented by the time the
decision must be made. Accordingly, we leave it to the trial court to exercise its
informed discretion on this question, in light of all the circumstances.
E. Other Issues
1. Admission of Autopsy Evidence
At the time of appellant‟s trial in September 2008, the United States Supreme
Court had decided Crawford, supra, 541 U.S. 36, but had not yet decided Melendez-Diaz
v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz). In Crawford,
the high court held that a criminal defendant‟s Sixth Amendment right to confrontation
precludes the admission of testimonial statements by a witness who is not subject to
cross-examination at trial, even if those statements fall within an exception to the hearsay
rule. In Melendez-Diaz, the court applied this holding to preclude the prosecution from
relying on certificates setting forth the results of scientific tests on suspected controlled
substances, holding that the prosecution was obligated, instead, to produce the lab
analysts who conducted the tests, so that the defense could cross-examine them.
In the present case, appellant relies on Crawford, supra, 541 U.S. 36, and
Melendez-Diaz, supra, 557 U.S. ___, in arguing that the trial court committed reversible
error in admitting into evidence Stephens‟s autopsy report, the related documents, and
Hart‟s expert testimony in reliance on those documents (collectively, the autopsy
evidence). Respondent counters on three grounds: first, that the issue is forfeited due to
appellant‟s counsel‟s failure to object on confrontation clause grounds; second, that the
autopsy evidence was properly admitted under People v. Geier (2007) 41 Cal.4th 555

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(Geier); and finally, that even if the admission of the autopsy evidence was error, it was
harmless beyond a reasonable doubt.
The forfeiture and harmless error issues are mooted by our reversal of appellant‟s
conviction on other grounds. On the merits, we note that the California Supreme Court
has granted review in several cases in order to assess the continued validity of Geier,
supra, 41 Cal.4th 555, in light of Melendez-Diaz, supra, 557 U.S. ___, and to decide how
the confrontation clause affects the admissibility in California courts of evidence
regarding autopsies and other forensic tests performed by scientists who do not testify.
(See, e.g., People v. Anunciation (Dec. 22, 2009) D054988 [nonpub. opn.] [2009 WL
4931884], review granted March 18, 2010, S179423 (Anunciation); People v. Gutierrez
(2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620; People v. Lopez
(2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046; People v. Dungo
(2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886 (Dungo); People v.
Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213.) At
least two of these cases—Dungo and Anunciation—present very similar facts to those in
this case, i.e., the admission of an autopsy report, and expert testimony based on it, when
the medical examiner who performed the autopsy did not testify. Thus, if appellant is
retried on remand, we expect that guidance on this issue from our Supreme Court will be
available to the trial court by the time of the retrial. Accordingly, we need not address it
here.

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2. Jury Instruction Regarding Prior Domestic Violence Evidence
The trial court instructed the jury regarding the relevance and permissible use of
the prior domestic violence evidence by giving CALCRIM No. 852.19 Appellant
contends that this instruction improperly reduces the prosecutor‟s burden of proof, and
misleads the jury. Appellant‟s counsel is commendably forthright in acknowledging that
the same contentions were rejected with reference to an equivalent instruction in People
v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 [upholding CALJIC No. 2.50.01], and
with reference to CALCRIM No. 852 itself in People v. Johnson (2008) 164 Cal.App.4th
731, 739 (Cantil-Sakauye, J.). Respondent points out that CALCRIM No. 852 was also
upheld as against a similar challenge in People v. Reyes (2008) 160 Cal.App.4th 246,
250-253. Appellant has raised these issues solely to preserve them for federal review,
and again, in light of our reversal on other grounds, we need only acknowledge that the
issues were properly raised before us.
3. Prosecutorial Misconduct in Direct Examination
Appellant argues that the prosecutor committed misconduct during the direct
examination of Houtz. This argument is mooted by our reversal of appellant‟s conviction
on other grounds, and the issue is not likely to arise again in the event of a retrial.
Accordingly, we decline to address it.
4. Amount of Custody Credit
Finally, appellant and respondent agree that the abstract of judgment in this case
should be modified to reflect appellant‟s entitlement to 972 rather than 969 days of
custody credits. We rely on the trial court to award the correct number of days of custody
19 The pertinent portion of this instruction, as read to the jury in this case, was as
follows: “If you decide the defendant committed the uncharged domestic violence
described in testimony, you may but are not required to conclude from that evidence that
the defendant is disposed or inclined to commit domestic violence; and, based on that
decision, also conclude the defendant was likely to have committed the homicide charged
in this case. [¶] If you conclude the defendant committed the uncharged domestic
violence, that conclusion is only one factor to consider along with all of the other
evidence. It is not sufficient by itself to prove the defendant is guilty of a homicide. The
People must prove each element of every charge beyond a reasonable doubt.”

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credits to appellant if and when he is resentenced upon the conclusion of the proceedings
on remand.
DISPOSITION
The judgment is reversed, and this case is remanded to the trial court for further
proceedings.
_________________________
RUVOLO, P. J.
I concur:
_________________________
RIVERA, J.

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REARDON, J.
I respectfully dissent. In my view, any alleged ambiguity in the instruction on
provocation and voluntary manslaughter was harmless and the jury‟s verdict of second
degree murder is well supported by the law and the evidence.
As the majority opinion observes, there was a long history of domestic violence
between appellant and the victim. On the night of the murder, appellant entered the
victim‟s apartment. The victim was present with her children. An argument between the
victim and appellant ensued and lasted approximately 10 minutes. Suddenly, appellant
walked very quickly into the kitchen area and grabbed a large kitchen knife. He returned
to the living room, approached the victim, and commenced stabbing her repeatedly. The
victim retreated, fell back onto the couch, and tried unsuccessfully to push appellant
away. As she slid to the floor, appellant continued to stab her. He then fled the
apartment, carrying the knife.
According to appellant, during the course of the verbal argument, appellant stated
that he was leaving. The victim allegedly responded, “ „I knew you were going to walk
away someday. That‟s why I killed your bastard. I got an abortion.‟ ” Appellant
testified that he had not known the victim was pregnant or that she had an abortion. He
testified that he was shocked by this and had no recollection of what happened next, until
he found himself holding a bloody knife with blood on his hands.
The victim had suffered 17 stab wounds and four blunt force injuries. She died
from blood loss caused by the stab wounds.
The jury was instructed on murder and voluntary manslaughter. The jury returned
a verdict of murder in the second degree. The majority would set aside this verdict
because an instruction on provocation was “at least ambiguous, if not misleading . . . .”
(Maj. opn. ante, p. 1.) The instruction, CALCRIM No. 570, as it existed at the time of
trial, informed the jury that in considering whether the provocation was sufficient to
“consider whether a person of average disposition would have been provoked and how
such a person would react, in the same situation knowing the same facts.” Appellant

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contends that his reaction to the provocation is not relevant and sets the bar too high by
requiring a homicidal reaction to establish voluntary manslaughter.
Whether the instruction is a correct statement of the law or “ambiguous, if not
misleading,” the bottom line is that it was not prejudicial. In short, given the
overwhelming evidence of second degree murder, it is not reasonably probable that the
jury would have returned a more favorable verdict in favor of appellant had the above
language been deleted from the instruction.
I would affirm the judgment of conviction.
___________________________
Reardon, J.

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