People v. Landaeta

Filed 10/26/26 CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, A169790 v. JOSE SOLANO LANDAETA, (San Mateo County Super. Ct. No. 22SF011294A) Defendant and Appellant. Jose Solano Landaeta appeals a judgment convicting him of first degree murder and sentencing him to prison for a term of 26 years to life. He contends the trial court prejudicially erred by failing to instruct the jury that a person who kills as a result of provocation and in the heat of passion is guilty of voluntary manslaughter (CALCRIM No. 570), or of murder in the second degree (CALCRIM No. 522), rather than first degree murder. In the published portion of the opinion, we address an apparent tension between two decisions of our Supreme Court and explain why the claimed errors— assuming without deciding that the instructions should have been given— must be deemed harmless in light of the jury’s first degree murder verdict. In the unpublished portion of the opinion, we explain why we are unpersuaded by Landaeta’s remaining claims that the trial court made several prejudicial evidentiary errors and also violated his due process rights * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II through V. by failing to suspend the criminal proceedings when presented with substantial evidence that raised a doubt about his competence to stand trial. BACKGROUND Landaeta was charged by amended information with a single count of murder (Pen. Code, 1 § 187, subd. (a)), with a sentence enhancement for his use of a deadly weapon (§12022(b)(1)), for the killing of Karina Castro on September 8, 2022. The amended information also alleged several sentencing factors in aggravation, as well as that Landaeta was ineligible for probation because he personally inflicted great bodily injury during the commission of the crime. (§ 1203.075, subd. (a).) At trial, evidence was presented that Landaeta and Castro began dating in 2019. At the time of the killing, Castro lived with her and Landaeta’s then-20-month-old daughter, as well as Castro’s 7-year-old daughter. Landaeta had lived with them briefly but moved out in July 2021, and was staying with his father at the time of the killing. Landaeta’s mother and brother lived in the same apartment complex with Castro and the children. On the morning of the killing, Landaeta went to work as usual, but at around 11:00 a.m., after his manager observed him texting “quite ferociously” on his cell phone—i.e., he “was focused on his cell phone and he was texting as fast as his little fingers would go on company time”—Landaeta said he was not feeling well and left work early. Messages extracted from Landaeta’s and Castro’s phones and messaging applications were introduced as evidence at trial. 2 1 Undesignated statutory references are to the Penal Code. 2 Exhibits containing photographs of the phones displaying the messages and documents listing the messages were provided to the jury. Prosecution witnesses also read some of the texts aloud as part of their 2  On the night before the killing, Castro and Landaeta engaged in a long text exchange. Castro began by asking Landaeta if he could FaceTime her, and in her initial messages, she tried to reestablish a connection and explained that she cares about him. Among other texts, she wrote: “i was tryna just talk” — “been thinkin bout u,” and later, “u kno damn well how much i do care about yur ass rafa[ 3] after 3–4 years?” Landaeta rebuffed her, although some of the texts are difficult to interpret because they refer to unidentified people and to incidents that are not fully explained on the record. He wrote, for example, “You said if they killed me, you aint gon care, so i already knw how you feel,” to which Castro answered, “i would care i was saying if they came after me it seems that u don’t care.” Castro later wrote, “every times i tell u the truth u don’t wanna hear it,” to which Landaeta responded, “I heard what you said, so now i knw.” Castro then replied, “just like i herd wat you said” — “puttin a target on my back right” — “i already had me lo hit me up tryna check me” 4 — “i got the girls dude.” Landaeta responded, “Nope, you did that to yoself” — “I been tried to tell you.” The conversation eventually turned to the subject of their daughter, with Castro writing, “how am I supposed to work with [her]” — “u ain’t around weekdays.” Landaeta responded, “So im straight, talk to me about my daughter n thas it.” Castro replied, “so this how we gunna end our shit?” testimony and provided opinions as to the meaning of certain words in context. To the extent possible, we retain the original text, including lack of punctuation, used in the messages as reflected in the exhibits. We use em dashes between quotations to reflect the break between sequential messages. 3 Landaeta’s middle name is Rafael and it appears from the record that “Rafa” was used by some people to refer to him. 4 The detective who read the text messages into the record was unable to explain what this text meant. 3 — “really” — “????” — “r u fuckin serious,” to which Landaeta responded, “You told me how you feel n im not wid that.” In subsequent texts, Castro again tried to explain that she cared about him, writing, for example, “fucked up if I ever loose u tf” — “I already been goin tbru it not talkin to u” 5 — “I was tryna call u to apologize,” followed by a sad eyes emoji and “if u would let me.” Landaeta responded, “Yeaa well ima start lookin fa anotha girl that actually care,” and Castro answered, “i been care tf” — “u all I care about n our kids” — “please call me rafa” — “I really need to talk to you.” Landaeta wrote, “I don’t deserve to be treated like the scumbags you go for,” and Castro responded with multiple texts to which Landaeta did not reply, including: “please can I apologize” — “I won’t bother u anymore” — “I was hella outa pocket” — “but u acted like u don’t care if I get taken out that shit hurt” — “rafa” — “please can we talk” — “how much do I beg u for ur attention or a day with u?” — “my mental state has been shit” — “since this shit” — “u the only comfort I got,” followed by six sad face emojis. Castro grew angry in her subsequent texts, writing: “never said i wouldn’t care . u didn’t hear me right” — “if i didn’t care, i wouldn’t have you around [our daughter]” — “and if u wana treat me like shit, then good luck tryna see her or take her again cuz i don’t deserve that” — “since the last time we fucked u haven’t givin a shit i deserve someone who cares about my well being too” — “u wana tell ppl to take me out i can tell the homies you let a n***a suck ur dick see who gets taken out then” — “maybe that’s why but he’s got issues with u” — “bitches” — “i kno shit that will get u 6 ft under remember that wen wen u wana put salt on my name for a n***a I’m not 5 The detective testified that he did not know what “tbru” means, although the context suggests it may be a misspelling of “thru.” 4 with[.]” About an hour later, Castro added, “‘damn n u go to you get bitches haha damn i see why u won’t fuck wit me i’m not young enough” — “now I kno wat ur case was for.” The following morning, starting around 9:15 a.m., Castro and Landaeta began exchanging messages again. During the course of the exchange, Castro messaged, “send ur momma my way too lol” — “i’ll handle her ass as well please give me a reason.” When Castro wrote, “u a fuckin rapist to cuz that female was under age,” Landaeta replied with the ninja emoji. When Castro responded, “see if the homies gunna like that,” Landaeta replied with four clapping hands emojis and four more ninja emojis. Castro wrote in one message of Landaeta “lettin n***as suck u up cuz u thought u was goin to jail,” to which Landaeta responded with a series of laughing and clapping emojis. Castro then sent a screenshot of their message followed by more laughing emojis. Landaeta responded with more ninja emojis. Referring to the screenshots, Castro messaged, “thank u for my posts to ig [Instagram],” and then “now i hope u get ur shit shut down” — “n taken out.” She continued, “[daughter] don’t need a gay n***a for a dad,” and “u gunna loose everything” and “u gay.” Landaeta continued to reply with, among other messages, more ninja and laughing emojis. At one point, Castro messaged, “epa [East Palo Alto] gunna kno,” and “west side metro [mateo] gunna kno rafa[] like dick,” and “imma. blast this shit everywhere.” Landaeta responded, “Fuk around n find out.” The messages continued with Castro threatening to out Landaeta as gay and Landaeta responding with insults and more ninja and laughing emojis. During the exchange, Castro threatened that Landaeta would never be around her kids again and messaged him, “u got a target on ur back now too.” Landaeta replied, “Lol, u wish bitch, u wish.” Castro messaged, “i already got 5 a green light” and “show ur face around here i wish u would ur mom gunna have to move too [] after I’m done.” Landaeta replied, “keep pushing it bitch . . . i knw why you fuk d.o.z.” 6 Castro added, “tell yo mom to plan [ur] fuckin service” — “cu i’m done with this shit” — “ur homies kno now” — “u a f****t and a pedo.” When Landaeta responded, “Keep hoping bitch,” Castro replied, “haha” — “it’s good i’m on the phone now makin ahit[ 7] happen.” Two minutes later, she added, “i got everyone on my page lookin at these messages [laughing emoji] it’s bad on u.” She added “i got someone out there right now haha” — “lookin for u” — “remember I kno ur dad addy.” During the course of this exchange, Landaeta responded “lol” several times, and inserted at least 20 laughing-while-crying emojis and a dozen clapping-hands emojis. As the exchange continued, Castro repeatedly threatened Landaeta, and in response, Landaeta continued to insult her and send ninja emojis. Castro messaged, “don’t show ur face around here lol i should find ur paperwork n print it out so ppl can hide there teenagers” and “lol i think imma print all this out n cover ur moms door.” Landaeta replied, “Bitch, i jus know you be lying bout everything so im quite amused,” “Lol . . . you run your mouth soo much itz annoying,” and “Lol i think u need a hug.” She added, “wait till i find out where u work” and “imma have someone on u all times.” Around 10:30 a.m., Castro messaged “I got my n***a on his way.” Landaeta replied, “Itz alright D.O. Rydah keep telling yourself you was a good mom.” A minute later Castro messaged, “i’ll take ur mom out too” — “see if i’m playin” 6 The detective testified that D.O. stands for dropouts. 7 The detective opined that “ahit” was “shit” misspelled because “shit” was more appropriate in context, the letters “a” and “s” are next to each other on a keyboard, and in connection with a prior message Castro corrected “ahit” to “shit.” 6 — “fuck u n ur family.” That was followed by two more messages from Castro, the first saying that their daughter “will have my last name” and the second saying that “u will have no right to my kid.” Also that morning, Landaeta received a message from a mutual acquaintance that read, “say its not true what your bm [baby momma] posted on her Ig blooood.” When Landaeta asked what Castro posted, the acquaintance responded, “She posted a video saying you got sucked up by a n***a bloooood.” Landaeta replied, “Wooww blood that bitch is fkn psycho” and “Im not gon lie broo, she lookin ta get smoked blood.” Landaeta followed up with, “Bitch is all bad blood, she needa get 86ed.” In response to the acquaintance’s message, “imagine everyone who she got as a friend on Ig seen that shit,” Landaeta replied, “I knw blood but theres nothin i can do, unless i handle the bitch.” Landaeta immediately followed up this message with “but honestly . . . I aint even trippin, she be lyin like fukk soo I mean whatever bro big whoop” and “[i]t aint gon faze me.” After exchanging several more messages, Landaeta added, “Ima have ta do what i gotta do broo,” followed by the 100 and four blood emojis. In response to a message that read, “Its not worth it my n***,” Landaeta replied, “Itz bad broo, ima West Mataz . . . If nobody gon do then ill do it thas been our creed for ages,” followed by another 100 and a blood emoji. At 9:38 a.m., Landaeta changed his Instagram profile to state, among other things, “Believe what you want- the streetz dnt lie, or sleep” followed by four blood emojis. At 11:46 a.m., shortly before the killing, he posted an Instagram story showing the entrance to Castro’s apartment complex. Three witnesses testified that around noon, they were on a walk when they came across two people, later identified as Landaeta and Castro, arguing in the street. The witnesses watched as Landaeta retrieved a sword 7 from his car, “stomp[ed]” towards Castro, and hit her twice with the sword— once in the right shoulder and again in the neck area. Castro attempted to flee but Landaeta caught up to her and hit her six to eight more times with the sword. One of the witnesses described Castro after the attack as having had her neck “nearly severed.” Crime scene photos shown to the jury, and testimony by the prosecution’s criminalist, confirmed that Castro’s head had been almost severed from her neck. As the police were investigating at the scene of the crime, Landaeta and his mother approached an officer and Landaeta said, “ ‘She was trying to kill me. I’m sorry.’ ” The officer described Landaeta as sweating and breathing heavily with “a thousand-yard stare.” After determining that Landaeta had a “slight” fever, he was transported to the hospital before being taken to jail. Landaeta testified that he was diagnosed with schizophrenia at age 14 or 15 but was “very high functioning” when he took medication. In the past, extreme stress and high anxiety triggered his psychotic episodes. When he had episodes, he became “paranoid,” believed he was being chased or persecuted, and felt “unsafe.” He would “space out” and “start shutting down.” At the time of the killing, his personal life was “extreme[ly] stress[ful].” As a result, he took his medication “just once” in the five days before the killing. Landaeta testified that at the time of the killing he believed that Castro “was living a double life” but he could not “figure out what the second life was.” Castro did not want him to know about that life; it was “kind of illegal.” “A lot of things” he discovered about Castro made him concerned for his safety. For example, the Saturday before the killing, Castro showed him a bag containing “about a pound of crystal methamphetamine[],” and asked 8 him to protect her because “someone was causing her problems.” The next day, Castro sent him an address so that he could talk to the person or “kick his ass and tell him to leave her alone.” On September 6 or 7, he and Castro argued. He believed Castro was seeing someone new who was “abusive” and he had heard that the man “dropped out of whatever gang he was [in].” Landaeta did not want the individual around his child. During the disagreement Castro said she “wouldn’t care” if Landaeta was killed, which made him “paranoid” that “something [was] going to happen.” On the morning of the killing, he woke up “very disorientated” and “smelled [his] food” at breakfast thinking his father was trying to poison him. He went to work and read Castro’s text messages from the night before, which were “negative and aggressive,” and he began texting her on Snapchat. He learned from the acquaintance what Castro had posted on Instagram, that she was “shaming me and telling everybody on social media going kind of global and telling everybody I was gay, I was pedo, I didn’t take care of my daughter, I’m never there for my daughter, I’m not a good dad. Just kind of just shaming me as best she can. Just kind of I guess getting everybody ready to go ahead and approve that I needed to be killed.” He “believed there w[ere] going to be people coming after” him. When asked whether he feared for his safety, Landaeta responded, “I felt like something was getting insinuated,” but acknowledged that since he was in a “crisis” he “was probably exaggerating things a little bit.” Castro’s messages mentioning his mother caused him to believe her life was in danger. Landaeta explained that during the text exchanges, he felt “[v]ery distressed,” like his “blood was boiling,” “[v]ery disorientated,” “kind of light-headed,” and “sick to [his] stomach.” He experienced “electrifying” “anxiety” and “started feeling very 9 sick.” He believed there was a hit already underway at his mother’s apartment. He testified that he “thought that there was going to be multiple gang members . . . that were going to show up at my mother’s house. I don’t know how many. Maybe five or six, or maybe like ten. I wasn’t sure.” He left work in Berkeley, traveled home to Hayward and “got ready for war” by retrieving the sword. He explained that he did not own a gun, so the only weapon he had was the decorative sword. He changed into a shirt depicting Kakashi—a character from the anime Naruto—believing the shirt would make him braver. He donned a “very thick” sweater for “added armor,” believing he was “going to have to go to war against guns.” He drove across the Bay to San Carlos, where Castro lived. Landaeta testified that a final text message from Castro, which is not in evidence, “popped up” on his phone screen as he was leaving Hayward that said: “I’m going to take out your mom. I have an N-word on the way.” He added that he did not open it and Castro deleted it on her phone. Once he arrived at Castro’s home, he posted the photograph of the apartment complex on Instagram so that if anyone saw it, they could come to his aid. A psychiatrist who testified later during the trial reported that Landaeta had told him that the drive from Berkeley to Hayward and then to San Carlos had taken an hour. Seeing Castro in her car, Landaeta testified that he “swerved in” and parked in front of her. He got out of his vehicle, stood by the door without holding any weapons, and waited for Castro to get out, intending to “talk [Castro] down” and “deescalate the whole situation.” While in her car, Castro made a phone call, and Landaeta thought she was trying to determine whether “the hit men were coming.” When Castro finally exited her car, she “started marching at [him] like a soldier initiating an attack” with a knife in her left hand. 10  Landaeta initially “froze,” but when Castro got “really close” to him, she looked at his heart, and he believed she would stab him there. She “lunged” at him, and he “went into shock” and a “full episode.” He was not “too sure what happened” after that. When asked by defense counsel whether he recalled retrieving the sword from his car, he said he did not know. He recalled trying to dodge Castro’s knife and “jumping in the car.” When asked, “Do you recall coming out of the car and fighting back or attacking her or anything,” he answered, “I think so, but I just don’t know how.” He explained, “I felt like I did get out of the car, but, like, I just don’t remember how I got out of the car.” His first memory after seeing Castro with the knife was “[r]unning back to the scene and hearing the sirens.” He thought the police would shoot him, so he took a “detour,” called his mother, and told her to pick him up from “down the street.” Then he turned himself in. He was still having “an episode” and felt “[d]isorientated” when he spoke to the police. He “forgot how to talk” and felt “paranoid because there w[ere] supposed to be like ten hit men after” him. While in the hospital and later in jail, he was “all blank” and could not speak. The episode lasted for two months before he “snapped back into reality.” Near the beginning of cross-examination, Landaeta denied that he killed Castro. When the prosecutor then moved to introduce three audio files into evidence, Landaeta asked to take a bathroom break. Once outside the courtroom, he briefly refused to return for cross-examination. Back in the courtroom, the court advised Landaeta to speak with counsel about the possible consequences of failing to complete cross-examination, and after a brief discussion he agreed to continue his testimony. Once cross-examination recommenced, however—with the prosecutor asking Landaeta whether he recognized his voice on the audio recording—Landaeta looked down and 11 refused to answer any questions. The trial was adjourned for the day and Landaeta was returned to jail. Landaeta’s mother confirmed that schizophrenia ran in her family and that Landaeta was diagnosed after an episode when he was 15 years old. When she saw Landaeta the weekend before the killing, she thought “[s]omething [was] going on with him” and became worried he would have an episode. When he called her after the killing, he spoke in the “very strange voice” that she associated with him having an episode, and he “breath[ed] heavily” over the phone. When she found him about a block away, he was “kind of shaky,” “drooling,” and his eyes were “a little bit dilated.” Landaeta’s father also testified about his son’s mental health struggles beginning when Landaeta was around seven or eight, including several later hospitalizations. He described an interaction with him a few days before the killing in which Landaeta was “really agitated” and “too overacting” about a birthday gift Landaeta was planning for him. When he saw Landaeta in jail two weeks after the killing, Landaeta was uncommunicative and “spaced out.” He went to see Landaeta regularly in jail and he remained uncommunicative until November 2022. On cross-examination, Landaeta’s father was asked about a recorded jail visit that occurred in October 2023 during which he asked Landaeta if he knew what he did and Landaeta replied, “Yeah, I know what I did. . . . I fucking killed a bitch because she was going to kill my family. That’s allowed. That—you can actually do that. It’s in the law. Like you are allowed to kill somebody because they’re threatening your family.” In another visit the same month, Landaeta told his father that he had “a way for myself to get out and dismissed, you know? There’s a law in the penal code that will dismiss me, I just gotta file the right motion.” Landaeta added 12 that he had “like two or three ways I can get out,” and when his father told him to explain them to his lawyer, he complained that the lawyer was not listening to him and “still wants to do this Kakashi thing, he’s been studying it all year, I don’t know.” On redirect, his father testified that Landaeta appeared “really strange” during these visits, that “he was erratically talking, talking, talking things that was not—it was really—I didn’t recognize him.” In rebuttal, the prosecution presented testimony by numerous mental health professionals regarding Landaeta’s mental condition shortly after the crime and at the time of trial. The clinical social worker who supervised the jail throughout Landaeta’s time there testified that in the days after the killing, Landaeta was “selectively” mute but made eye contact and responded to the commands of custody staff and took his psychiatric medication. By November 2022, Landaeta was speaking to staff and had developed a normal routine. In September 2023, shortly before trial, Landaeta stopped taking his medication and began displaying signs of mental deterioration, including becoming “malodorous” and having a disorganized cell. A jail counselor who saw Landaeta on September 24 after he had been off his medication for 10 days testified that, as she approached the cell door, Landaeta punched the cell window or door, then stared blankly past her, smiled, and stopped smiling. When she asked about the punching, Landaeta stated he was “becoming Takashi. That’s our only strategy for me to go to the hospital.” When asked why he stopped taking medication, he stated he would not take it until he could go home. With respect to his case, Landaeta told the counselor that “his ex-girlfriend threatened to kill his mom so he took care of it.” He said he was feeling anxious and had “racing thoughts” about the case 13 and the trial, but “did not endorse any other further mental health symptoms or psych acuity” at that time. A jail psychologist contacted Landaeta in his cell on September 25. Landaeta said he was hearing voices but they were “too soft” to tell what they were saying. He spoke “appropriately” and denied “command auditory hallucinations.” He did not appear to her to be “internally preoccupied” as someone with auditory hallucinations would. Landaeta explained to her that he had stopped taking his medication because he thought it would “make [him] better for court” and “help [his] defense better.” On September 28, Landaeta was transferred to the Acute Stabilization Unit (ASU) at the jail because he stopped taking his medication and was deemed “gravely disabled”—i.e., not showering, eating, or maintaining his housing, and being “disorganized and dysphoric.” A nurse testified that when Landaeta arrived, he “smil[ed], check[ed] out” his surroundings, made “good eye contact” with everyone greeting him, and greeted people in return. Landaeta was “very excited” and said in a “very high-pitched voice,” “ ‘I’m happy to be on ASU.’ ” When the nurse spoke with Landaeta “a couple hours later,” his cell “was very organized” and “neat.” He wanted to shower “immediately,” denied experiencing auditory hallucinations, and appeared not “internally preoccupied.” The psychiatrist who met with Landaeta in the ASU testified that Landaeta told her that he “stopped taking his medication two weeks ago believing his case would be thrown out once he is found incompetent to stand trial.” During their interaction, he was “very cooperative,” made eye contact, and answered her questions in a “very linear and appropriate manner.” She did not believe he suffered from a mental health condition at that time, but was instead trying to have his case dismissed. She opined that suffering 14 from schizophrenia at age 15 is “very, very rare” and would have involved multiple hospitalizations and “a lot of care.” She explained that schizophrenia is a progressive, degenerative disease where the individual becomes “more neurocognitively impaired.” Twenty years of symptoms “would be quite debilitating,” and even if symptoms could be controlled, the disease would progress. She noted that agitation was “very atypical” for psychosis or schizophrenia and that Landaeta’s behavior was more impulsive, which is not a part of schizophrenia. Finally, the psychiatrist testified that Landaeta’s presentation at ASU was inconsistent with schizophrenia. She noted that when Landaeta felt his needs were accommodated, he was “amicable” and cooperative, but “act[ed] up” when his needs were not met fast enough. She believed his issues were “behavioral and to a point where he was very aware what was going on.” In her opinion, Landaeta stopped taking medication to appear unstable. He said he felt “good” and was “more stabilized” as soon as he took medication in the ASU, which was impossible and inconsistent with genuine psychotic disorder because medication takes “a few days” to work. She noted that he changed his behavior around authority figures and doctors when he knew he was being observed. He did not speak to people he believed would not meet his needs. Rather, he “direct[ed] his attention to someone who was more agreeable to” him and engaged in conversation with that person until that person presented him with an obstacle. Then he would tell the person “that they were fired” and stop talking. Landaeta was released from the ASU on September 30, after spending “a very short time” there. A second psychiatrist who met with Landaeta while he was in the ASU testified that he too did not observe “any active psychotic symptoms.” He opined that being diagnosed with schizophrenia at age 15 was “rare,” and 15 that claimed symptoms at age seven or eight was “incredibly rare.” He noted that Landaeta exhibited attention-seeking behaviors in front of others but not when he was observed from a location where he could not see others observing him. The psychiatrist also testified that, while Landaeta displayed improvement with one dose of antipsychotic medication, it generally took a week or two for improvement to occur. He opined, “By the time I saw him, he had only had one dose of antipsychotic medication. And if his behaviors of presentation prior to his admission were due to a psychotic illness, it would be highly unlikely after one dose of medication that he would have significantly improved.” He believed that Landaeta displayed antisocial behavior, not schizophrenia. The prosecution also offered opinions by experts regarding Landaeta’s metal health at the time of the killing. Clinical and forensic psychologist Rami Mogannam met with Landaeta in jail on July 26 and August 9, 2023, interviewed him, and reviewed police reports, witness statements, and the messages exchanged between Landaeta and Castro. Based on this information, he opined that Landaeta was not suffering from symptoms of mental illness at the time of the offense. Mogannam testified that he did not observe any symptoms of mental illness during his interviews. When describing the offense, Landaeta told Mogannam that he turned into Kakashi, which gave him “the strength and the power to defend himself and to handle the situation that he believed he needed to handle.” Landaeta claimed to be in a delusional state where “he turned into Kakashi during the actual acts, and then said he snapped out of it soon after or immediately after.” Landaeta said he killed Castro after “she put her neck out and told [him] to kill her” and that he “wanted to give her her honor and didn’t want her to suffer anymore[,] so he used one swing on 16 her neck.” He claimed that immediately after the murder, he told his mother in Spanish that he “took [Castro] out and then said, ‘come get me.’ ” Mogannam opined that Landaeta’s description of the events was inconsistent with a genuine mental health condition because genuine symptoms slowly wax and wane over time but someone does not “just . . . snap out of it.” Mogannam also noted that Landaeta’s trial testimony was inconsistent with the statements he made to him, and with the presence of a mental health condition. The messages exchanged with Castro before the killing strengthened Mogannam’s opinion that Landaeta was not suffering from a mental illness during the murder because they were linear conversations and made sense. Like the psychiatrist who treated Landaeta in the ASU, Mogannam acknowledged that Landaeta suffered from some mental illness but questioned the accuracy of Landaeta’s initial schizophrenia diagnosis. He also opined that Landaeta’s muteness for months in jail was volitional because truly catatonic patients do not respond to instructions, and that his answering questions on direct examination at trial but remaining silent during cross-examination was also inconsistent with catatonia. Psychiatrist Zachary Torry similarly opined, based on his interview with Landaeta in which Landaeta had detailed the events that led up the killing, that there was no “overlap” between the murder and mental illness. Torry opined that Landaeta was “very likely” malingering his mental illness. He testified that Landaeta’s not speaking after his arrest was voluntary, not catatonia, which is “very rare” and characterized by an inability to speak and muscle rigidity that requires immediate treatment. Torry noted that when he asked Landaeta why he regained his ability to speak, Landaeta “said he 17 thought about his lawyer and that his lawyer needs him and that he was the only one that could help.” Finally, the prosecutor offered testimony by a San Mateo County Sheriff’s Deputy as to Landaeta’s conduct after he stopped answering questions on cross-examination. The deputy testified that after the jurors were excused and began exiting the courtroom, Landaeta “lifted his head, opened his eyes,” “looked at [him] and engaged in conversation.” In closing argument, the prosecutor characterized the case as follows: “This is a domestic violence murder. The defendant and the victim, the mother of his child, got into an argument. He got mad. The defendant was angry. The defendant talks to his homie and tells him exactly what he’s gonna do. [¶] . . .[¶] . . . He’s angry, and he does it. Brutally murdering the mother of his child in broad daylight in San Carlos in front of four eyewitnesses. That, ladies and gentlemen, is a first degree murder.” Defense counsel argued the killing was self-defense: Landaeta went to Castro’s home that morning to deescalate the situation because he was afraid for himself and his family. “He got over there in a state of panic, and he was confronted by Karina Castro who came at him with a knife” and he defended himself. The jury found Landaeta guilty of first degree murder and found the sentence enhancement allegation true. In a bifurcated trial, the jury also found true the sentencing factors alleged in aggravation, including that the crime “was carried out with planning.” DISCUSSION I. Prior to trial, Landaeta requested that the jury be instructed on heat of passion voluntary manslaughter pursuant to CALCRIM No. 570. It reads in relevant part: “A killing that would otherwise be murder is reduced to 18 voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] . . . The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.” Before closing arguments began, the trial court refused the instruction, which Landaeta contends was error. In a related claim, Landaeta also contends the court should have instructed the jury with CALCRIM No. 522, which reads in relevant part: “Provocation may reduce a murder from first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.” Unlike CALCRIM No. 570, CALCRIM No. 522 “ ‘is a pinpoint instruction to which a defendant is entitled only upon request.’ ” (People v. Thomas (2023) 14 Cal.5th 327, 384.) Although he acknowledges that his trial counsel did not request that the jury be instructed with it, Landaeta contends that any such request would have proved futile in light of the court’s refusal to give CALCRIM No. 570. (See People v. Perez (2020) 19 9 Cal.5th 1, 7–8 [parties are excused for failing to raise an issue at trial when it would have been futile to do so].) We need not decide whether there was substantial evidence warranting these two instructions because, even if we assume error, we conclude that it was harmless. The parties agree that any error in failing to instruct on voluntary manslaughter may be found harmless only if it is clear “beyond a reasonable doubt that [it] did not contribute to the verdict obtained.” (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Schuller (2023) 15 Cal.5th 237, 260 & fn. 7 (Schuller).) Even under that standard, however, the omission of an instruction is not prejudicial if “ ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’ ” (People v. Wright (2006) 40 Cal.4th 81, 98–99.) The Attorney General notes that here the jury found under CALCRIM 521 that Landaeta acted deliberately—he “carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.” The instruction further explained that “[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.” Under CALCRIM No. 570, the jury would have been asked to decide whether Landaeta “acted rashly and under the influence of intense emotion that obscured [his] reasoning or judgment” and whether he was under the influence of an emotion that caused him “to act without due deliberation and reflection.” Thus, according to the Attorney General, by finding Landaeta guilty of first degree murder, the jury 20 necessarily resolved the factual question posed by CALCRIM No. 570 adversely to him. Although not discussed by the Attorney General, we also note that the jury found true the aggravating circumstance that the crime “was carried out with planning pursuant to [section] 1170(b)(2).” (See Cal. Rules of Court, rule 4.421(a)(8).) In his closing argument on the aggravating factors, the prosecutor argued: “Think about all the things that the defendant did to plan to commit this crime. He told his boss he felt sick. He left work. When he got home, he changed his clothes from his work clothes to all black. He found a weapon. He gathered the weapon. He told his friend what he was going to do. He drove an hour to get to the victim to kill her.” The jury was instructed that planning “refers to conduct before the crime, preparing for its commission.” Although no new evidence was presented at this phase of the trial and the prosecutor himself argued that the facts that supported planning were the same facts that supported premeditation and deliberation, the jury was instructed with CALCRIM No. 3230 that it could not find the aggravating factor true unless the People proved “that the defendant’s conduct was distinctively w