Full Opinion

Filed 11/13/26 P. v. Marquez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D085741 Plaintiff and Respondent, (Super. Ct. No. SCD294499) v. RAUL NEVAREZ MARQUEZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Christopher P. Beesley and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent. 1 A jury found Raul Nevarez Marquez guilty of first-degree murder in the killing of Floyd “Todd” Budd. (Pen. Code,1 § 187, subd. (a).) The jury further found that Marquez personally used a deadly and dangerous weapon, a knife, in committing the offense. (§ 12022, subd. (b)(1).) Marquez contends on appeal that: (1) there was insufficient evidence to prove premeditation and deliberation; and (2) he received ineffective assistance of counsel because his trial attorney did not request that the jury be instructed on provocation in deciding the level of homicide (CALCRIM No. 522). We conclude that substantial evidence supports the jury’s finding that Marquez acted with premeditation and deliberation in killing Budd. We further conclude that Marquez has not established ineffective assistance of counsel based on his defense counsel’s failure to request a provocation jury instruction. Accordingly, we affirm the judgment.2 1 Undesignated statutory references are to the Penal Code. 2 By separate order, we also deny Marquez’s petition for writ of habeas corpus in D087887. 2 FACTUAL AND PROCEDURAL BACKGROUND A. The Killing In 2022, Budd was renting his San Diego home to four tenants while also living there himself. Budd was dating Marquez’s mother at the time and Marquez often stayed overnight at Budd’s house. According to one of the renters, L.M., Marquez was not happy about Budd’s relationship with his mother because Budd was much older than her, Marquez thought Budd had partied too much in the past and was always sleeping, and Marquez believed his mother could find a better partner. L.M. recalled that Marquez once said of Budd, “He’s so old. When does he fucking die already?” One evening in May 2022, a couple days after he made those statements to L.M., Marquez went out drinking with B.D., another one of Budd’s renters. P.E., who also lived in Budd’s house, was awoken that night around 2:00 a.m. by Marquez pounding on the front door. She let Marquez inside and then returned to her room, but Marquez followed her inside and sat down on P.E.’s bed. Marquez appeared drunk, began rambling, and “saying he was evil,” which alarmed P.E. Marquez asked P.E. where Budd was, and P.E. said she did not know. P.E. told Marquez that she was going to call Budd, and Marquez said, “Yes. Call [Budd].” P.E. called Budd and told him to tell Marquez’s mother to come get Marquez because he was drunk and would not leave her room. At one point Marquez squeezed the back of P.E.’s neck and asked, “Are you scared?” She said, “Kind of. Now, get the fuck out of my room.” Marquez eventually left the room, and P.E. closed and locked her bedroom door behind him. About 20 minutes passed before Budd arrived at the house. Witnesses heard Budd yell for Marquez to get his belongings because Budd was going to take Marquez to his mother’s house. Budd sounded upset and said he had 3 heard Marquez was bothering Budd’s tenants and refusing to leave P.E.’s room. Then P.E. heard scuffling like a fight was happening, and someone saying, “get off me” multiple times. She also heard Marquez say, “I’m going to kill you, [Budd]” about four times. P.E. called 911, and while she was on the phone, she heard a thud near her bedroom door and Budd saying P.E.’s name. Once the police arrived, P.E. exited her room and saw Budd bleeding on the floor just outside her bedroom door. Other renters who were in the home that night also heard the scuffle. One renter’s girlfriend heard Marquez yell that someone “should check on [Budd]” and call 911 because Budd was “probably bleeding to death.” When the renter opened his bedroom door, Marquez was standing in the living room holding a large knife down by his side. When the renter’s girlfriend asked Marquez to drop the knife, Marquez said he needed to “hold on to it for our protection.” Marquez then backed out of the front door, knife in hand, but with his hands in the air as if expecting police officers’ arrival. When law enforcement arrived at the house, Marquez was sitting in B.D.’s car with the gear in reverse. He exited the car holding the knife, but dropped it when commanded by officers. When one of the responding officers asked whether anyone inside the house was hurt, Marquez said no. After officers detained Marquez in the back of a police car, they noticed he was bleeding from his right hand. Marquez was also yelling “just shoot me already,” banging his head against the center divider, and kicking the doors of the police vehicle. B. The Investigation and Autopsy Photographs of the scene showed that the living room was orderly and appeared undisturbed. Surveillance footage recorded across the street from the house showed that after P.E. called Budd around 2:00 a.m., Marquez 4 drove away from the house in B.D.’s car and came back a couple minutes later. Budd pulled into the driveway at 2:16 a.m., about 10 minutes after Marquez returned to the house, and parked behind Marquez’s car. When Marquez left the house after the incident at 2:26 a.m. and attempted to drive away, he backed into the car Budd had parked. Police arrived soon afterwards around 2:30 a.m. An officer found a bloody seven-inch foldable Kershaw knife in the driveway that was in a fixed open position. When officers took Marquez to the hospital to be treated for his injury, Marquez asked them where his Kershaw knife was. Marquez’s blood was drawn at the hospital at 4:13 a.m. and his blood-alcohol level at the time was about 0.20. Budd was 67 years old at the time of his death and had medical conditions that sometimes made it difficult for him to breathe or walk. An autopsy revealed that Budd suffered 45 stab and slash wounds in his neck, upper torso, and head. Budd’s left lung was punctured and a major artery in his left armpit had been severed, causing significant blood loss. Budd also had methamphetamine in his system at the time of his death, and a pathologist’s notes indicated he had chronic obstructive pulmonary disease, emphysema, and an enlarged heart. Medical examiners determined Budd’s cause of death was homicide. C. Jury Instructions and Verdict The People charged Marquez in an amended information with first- degree murder (§ 187, subd. (a)) and alleged enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)), a prior strike (§ 667, subds. (b)-(i)), a prior serious felony (§ 667, subd. (a)), and being out on bail (§ 12022.1, subd. (b)). 5 The trial court instructed the jury on, among other things, self-defense (CALCRIM Nos. 505 & 3471) and the imperfect self-defense theory of voluntary manslaughter (CALCRIM No. 571). The court also gave the jury an instruction on voluntary intoxication, which stated in relevant part that the jury may consider evidence of the defendant’s voluntary intoxication “only in deciding whether the defendant acted with an intent to kill, or . . . with deliberation and premeditation.” (CALCRIM No. 625.) The defense did not request a provocation instruction. Specifically, the defense did not request and the court did not give CALCRIM No. 522, which reads as follows: “Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. 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. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.] “[Provocation does not apply to a prosecution under a theory of felony murder.]” The jury reached a verdict after deliberating for a few hours and found Marquez guilty of first-degree murder, with a true finding that he personally used a deadly and dangerous weapon. DISCUSSION I Marquez first contends there was insufficient evidence for the jury to find that he killed Budd with premeditation and deliberation, which is required to support a first-degree murder conviction. We disagree. On review for sufficiency of the evidence supporting a conviction, we must “ ‘examine the entire record in the light most favorable to the judgment 6 to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.’ [Citations.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 657–658.) We will not reverse unless there is no hypothesis upon which sufficient substantial evidence exists to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “Given this deferential standard of review, a ‘defendant bears an enormous burden in claiming there is insufficient evidence’ to support a conviction.” (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.) The unjust killing of a human being is presumed to be murder in the second, rather than first, degree. (People v. Anderson (1968) 70 Cal.2d 15, 25.) “First degree murder ‘has the additional elements of willfulness, premeditation, and deliberation which trigger a heightened penalty.’ [Citation.] These elements require ‘more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death.’ [Citation.] ‘ “ ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ ” ’ ” (People v. Gomez (2018) 6 Cal.5th 243, 282 (Gomez).) “[E]vidence of planning, 7 motive, and manner of killing is often relevant to this inquiry.” (Ibid.) However, these categories of evidence “are descriptive and neither normative nor exhaustive, and . . . reviewing courts need not accord them any particular weight.” (People v. Halvorsen (2007) 42 Cal.4th 379, 420.) Here, there was substantial evidence at trial from which the jury could reasonably determine Marquez killed Budd with premeditation and deliberation. L.M. testified that Marquez had negative feelings about Budd and made statements that could be construed as a threat mere days before the killing. The night of the incident, Marquez seemed to be looking for Budd and expressly asked P.E. to call Budd over to the house. Before Budd arrived, Marquez left the house in B.D.’s car and came back, which indicates some level of decision-making and planning. Then after Budd got there and the scuffle started, a witness overheard Marquez saying he was going to kill Budd multiple times. The evidence showed that Marquez stabbed Budd 45 times in the head and torso over the course of mere minutes, which supports an inference that he was trying to inflict deadly injury. There were also few signs of a struggle in the living room, and Budd was not only older than Marquez, but also had medical conditions that made him physically weak. This suggests that Marquez was able to incapacitate Budd quickly, but deliberately continued to stab him. Viewing the record in the light most favorable to the judgment, we conclude there was substantial evidence regarding planning, motive, and the manner of killing to support the finding that Marquez acted with premeditation and deliberation. (See Gomez, supra, 6 Cal.5th at p. 282.) II We turn next to Marquez’s claim that his trial counsel’s assistance was ineffective because he did not ask the court to instruct the jury on 8 provocation in deciding the level of homicide (CALCRIM No. 522). Specifically, Marquez contends that Budd’s death stemmed from “nothing more than a personal dispute” and there was evidence Marquez may have acted “impulsively and rashly and within seconds after anger consumed him.” To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Scott (1997) 15 Cal.4th 1188, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687–688.) Marquez has not established any deficient performance based on his counsel’s decision not to request CALCRIM No. 522 because substantial evidence did not support giving the instruction. (People v. Middleton (1997) 52 Cal.App.4th 19, 33 [court only needs to instruct when substantial evidence exists to support giving the instruction, and when the evidence is not “minimal and insubstantial”].) “The evidentiary premise of a provocation defense is the defendant’s emotional reaction to the [provocative] conduct of another, which emotion may negate a requisite mental state.” (People v. Ward (2005) 36 Cal.4th 186, 215.) While the record shows Budd was upset when he arrived at the house and yelled for Marquez to get his belongings, such acts are not sufficient provocation “to negate premeditation and deliberation, thus reducing the crime to second degree murder” (People v. Rogers (2006) 39 Cal.4th 826, 877–878), or “to arouse feelings of homicidal rage or passion in an ordinarily reasonable person.” (People v. Pride (1992) 3 Cal.4th 195, 250.) There is no evidence of any provocation by the victim that would have supported this instruction. Nor does the record contain evidence 9 of what, if any, response Marquez had to Budd confronting him and how that spurred Marquez’s actions. Indeed, according to P.E., Marquez was already exhibiting erratic and threatening behavior before Budd even arrived. Requested instructions need not be given to the jury “absent substantial evidence to support them.” (People v. Stitely (2005) 35 Cal.4th 514, 551; accord, People v. Nguyen (2015) 61 Cal.4th 1015, 1049.) Indeed, “[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Because there was no substantial evidence of provocation, defense counsel’s performance was not deficient because of his decision not to request a provocation instruction. (See People v. Price (1991) 1 Cal.4th 324, 387 [defense counsel “does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile”].) For the same reason, Marquez also cannot demonstrate a reasonable probability the trial court would have given the instruction if it had been requested. Moreover, even if a provocation instruction had been given, there is no reasonable probability it would have caused the jury to reach a more favorable verdict without any evidence to support it. For these reasons, Marquez has failed to establish either deficient performance or prejudice under the Strickland standard. 10 DISPOSITION The judgment is affirmed. BUCHANAN, Acting P. J. WE CONCUR: BERMÚDEZ, J. AMIN, J. 11