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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

People v. Velazquezhuar CA4/3

California Court of Appeal

• Citations: None known
• Docket Number: G063616

• Precedential Status: Non-Precedential

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

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Combined Opinion

Filed 2/26/26 P. v. Velazquezhuar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063616

v. (Super. Ct. No. 21ZF0016)

OMAR VELAZQUEZHUAR, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County,
Richard M. King, Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier and James H. Flaherty III, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant Omar Velazquezhuar was convicted of murdering his
long-time domestic partner, Dora Rosas. On appeal, he contends the trial
court erred by admitting evidence of his prior uncharged crimes,
misinstructing the jury on the law, and coercing the jury into reaching a
verdict. Finding no grounds for reversal, we affirm the judgment.
STATEMENT OF FACTS
Velazquezhuar and Rosas lived together for many years and had
two children. In late 2020, Rosas kicked Velazquezhuar out of the family
apartment because she suspected he was being unfaithful. Unbeknownst to
Velazquezhuar, Rosas then began having a romantic relationship with
another man.
One night in February 2021, while Rosas was not home,
Velazquezhuar went to the family apartment to visit their children, who were
young adults at the time. Upon noticing some new items in the apartment,
Velazquezhuar became suspicious and asked the children if Rosas was seeing
anyone. They said they were not sure and tried to convince Velazquezhuar
they had purchased the new items themselves. Suspecting otherwise,
Velazquezhuar grabbed a hammer from the balcony and smashed many
items in the apartment.
The children were shocked by Velazquezhuar’s violent behavior,
which left the apartment a mess. As it turned out, though, Velazquezhuar
was not finished. Later that night, he used the hammer to smash the
windows of Rosas’s car while it was parked in a retail parking lot.
Velazquezhuar’s actions were concerning to Rosas and the children, but they
did not call the police because Velazquezhuar offered to pay for the damage
and they thought he was just blowing off steam. Four days later, however,
Velazquezhuar attacked Rosas and beat her to death with a metal pipe.

2
The attack occurred on February 26, 2021. That morning, Rosas
drove to Irvine and parked her car in front of the home where she worked as
a nanny. When she opened her door and started to get out, Velazquezhuar
confronted her, pushed her back inside, and began beating her with a two-
foot pipe. Rosas honked her horn and yelled for help, but Velazquezhuar
entered the car and continued beating her with the pipe. Although Rosas was
able to escape momentarily through the passenger door, she fell on the
nearby sidewalk and endured more blows there when Velazquezhuar caught
up to her. Velazquezhuar did not relent until a neighbor drove his car up on
the sidewalk and tried to run him over.
At that point, Velazquezhuar took off running, ditching the pipe
and his sweatshirt in the bushes along the way. However, the police soon
captured him in the area. Despite receiving extensive medical treatment,
Rosas lapsed into a coma and died of blunt force head trauma three weeks
after the attack.
When interviewed by the police, Velazquezhuar said he felt angry
and humiliated by the fact Rosas was seeing another man. After drinking for
three days and using cocaine, he decided to confront Rosas for cheating on
him. Velazquezhuar told the police he did not want to kill Rosas; rather, he
just wanted to hurt her and then kill himself. He also claimed he did not hit
Rosas very hard with the pipe, and if he had really wanted to kill her, he
would have shot her with a gun.
Velazquezhuar was charged with special circumstances murder
for killing Rosas by means of lying in wait. At trial, he testified he did not
know Rosas was seeing another man until the night he trashed the family
apartment and smashed Rosas’s car windows with the hammer. Prior to
then, he had made several attempts to reconcile with Rosas, but she kept

3
telling him she needed more time to think about it. When he confronted her
in her car on the morning of the attack, he only wanted to talk to her. But she
did not want to listen and told him to leave. According to Velazquezhuar, “the
devil took over” at that point, and he started beating her with the pipe. When
asked if he wanted to hurt Rosas, he stated, “I wanted for her to feel what I
was feeling,” which he described as hurt and betrayed.
As relevant here, the jury was instructed on two theories of first
degree murder (lying in wait and premeditation), the lesser included offense
of heat of passion voluntary manslaughter, and the special circumstances
allegation of lying in wait. In addition, the jury was instructed it could
consider any acts of domestic violence Velazquezhuar may have committed
before the killing in deciding whether he was guilty of murder.
During its deliberations, the jury asked the trial court several
questions about these instructions and initially could not decide whether
Velazquezhuar was guilty of murder in the first degree. Ultimately, though,
the jury convicted Velazquezhuar of that offense, but found the special
circumstances allegation not true. The trial court sentenced Velazquezhuar to
25 years to life in prison for his crime.
DISCUSSION
Velazquezhuar contends the jury’s verdict was tainted by
evidentiary and instructional error and the trial court improperly coerced the
jury into reaching a decision. For the reasons explained below, we find no
basis to disturb the judgment.
I.
THE UNCHARGED CRIMES EVIDENCE
Over a defense objection, the trial court allowed the prosecution
to introduce evidence of Velazquezhuar’s hammer rampage on February 22,

4
2021, four days before he killed Rosas. As explained above, after concluding
Rosas was seeing another man, Velazquezhuar not only smashed things at
the family apartment that night, but also smashed the windows of Rosas’s
car.
The trial court admitted this evidence as domestic violence
evidence pursuant to Evidence Code section 1109 and, consistent with that
statute, instructed the jury it could use the evidence to infer Velazquezhuar
had a propensity for domestic violence and was therefore likely to murder
Rosas.1 The court ruled the hammer rampage evidence also was admissible
under section 1101, subdivision (b), to show Velazquezhuar had a motive—
jealousy—to murder Rosas. In that regard, the court ruled the probative
value of the evidence was substantial, and it was not unduly prejudicial
within the meaning of section 352.
Velazquezhuar argues the trial court’s ruling was erroneous for
three reasons. First, his hammer rampage did not constitute domestic
violence within the meaning of section 1109. Second, the hammer rampage
evidence was not relevant to his motive for killing Rosas. Third, the evidence
was more prejudicial than probative. Velazquezhuar contends that, taken
together, these errors violated both the Evidence Code and his right to a fair
trial. We disagree.
Evidence of a defendant’s uncharged misconduct is generally
inadmissible to prove his conduct on a specific occasion or his propensity for
criminal activity. (§ 1101, subd. (a).) However, such evidence may be
admitted to prove some other material fact in the case, such as motive,

1
Unless noted otherwise, all further statutory references are to
the Evidence Code.

5
intent, or absence of mistake. (Id., subd. (b).) An exception to the propensity
rule also exists in cases involving domestic violence. Under section 1109,
when a defendant is charged with “an offense involving domestic violence,
evidence of the defendant’s commission of other domestic violence is not made
inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to
[s]ection 352.” (Id., subd. (a).)
Section 1109 refers to two definitions of domestic violence, one
from the Penal Code and one from the Family Code. Regarding the former,
section 1109 states “‘[d]omestic violence’ has the meaning set forth in
[s]ection 13700 of the Penal Code.” (Id., subd. (d)(3).) Section 1109 also states
domestic violence “has the further meaning as set forth in [s]ection 6211 of
the Family Code, if the act occurred no more than five years before the
charged offense.” (Id., subd. (d)(3).)
Penal Code section 13700’s definition of domestic violence is
limited to “intentionally or recklessly causing or attempting to cause bodily
injury, or placing another person in reasonable apprehension of imminent
serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700,
subds. (a) & (b).) Because Velazquezhuar did not cause or attempt to cause
bodily injury during his hammer rampage and there is no evidence it caused
Rosa to fear imminent serious bodily injury to herself or others, the hammer
rampage evidence does not fit Penal Code section 13700’s definition of
domestic violence.
However, when, as here, the conduct in question occurred within
five years of the charged offense, Evidence Code section 1109’s definition of
domestic violence also encompasses the definition set forth in Family Code
section 6211, which is broader than the definition in Penal Code section
13700. (Evid. Code, § 1109, subd. (d)(3).) Under Family Code section 6211,

6
domestic violence is defined as “abuse” committed against certain persons,
such as a former cohabitant. (Id., subd. (b).) For purposes of that provision,
“abuse” encompasses any conduct that “could be enjoined pursuant to [Family
Code] [s]ection 6320” (id., § 6203, subd. (a)(4)), including “destroying personal
property” or “disturbing the peace of the other party.” (Id., § 6320, subd. (a).)
Velazquezhuar does not dispute his hammer rampage constitutes
domestic violence under these Family Code provisions. However, he claims
Evidence Code section 1109’s reference to Family Code section 6211 was
simply intended to define the persons against whom domestic violence can be
perpetrated, as opposed to expanding the definition of domestic violence
itself.
Velazquezhuar rests his argument on People v. Zavala (2005) 130
Cal.App.4th 758 (Zavala), which looked solely to the definition of domestic
violence in Penal Code section 13700 in determining whether stalking
constituted domestic violence for purposes of Evidence Code section 1109.
(Zavala, at pp. 770–771.) As pointed out in People v. Mani (2022) 74
Cal.App.5th 343 (Mani), however, the trial in Zavala occurred before
Evidence Code section 1109 was amended to include Family Code section
6211’s definition of domestic violence. (Mani, supra, at pp. 363–364.)
Therefore, Zavala has limited utility in interpreting the current version of
Evidence Code section 1109. (Mani, at pp. 363–364.)
We agree with the Mani court that, as currently written, “the
plain and unambiguous language of section 1109, subdivision (d)(3),
incorporates, in addition to Penal Code section 13700, the Family Code
definition of abuse—including the [enjoinable conduct referenced] in Family
Code section 6203, subdivision (a)(4)—provided that the events occurred
within five years of the charged offense. Thus, encompassed within the

7
meaning of ‘offense involving domestic violence’ in section 1109 is an offense
involving conduct constituting disturbing the peace of the victim,” or
destroying the victim’s personal property. (Mani, supra, 74 Cal.App.5th at p.
361; accord, People v. Ogle (2010) 185 Cal.App.4th 1138, 1143–1144
[distinguishing Zavala on the same basis]; cf. People v. Dallas (2008) 165
Cal.App.4th 940, 953 [Evidence Code section 1109’s reference to Family Code
section 6211 incorporates other provisions of the Family Code in determining
what constitutes domestic violence for purposes of Evidence Code section
1109].) Accordingly, Velazquezhuar’s hammer rampage constitutes domestic
violence within the meaning of Evidence Code section 1109 and was
admissible under that section, subject to the terms of Evidence Code section
352.
Section 352 empowers trial courts to exclude evidence if its
probative value is substantially outweighed by the probability its admission
would cause undue prejudice, confusion, or delay. For purposes of this
section, prejudice “is not synonymous with ‘damaging,’ but refers instead to
evidence that ‘“uniquely tends to evoke an emotional bias against [a]
defendant’” without regard to its relevance on material issues.” (People v.
Kipp (2001) 26 Cal.4th 1100, 1121.) The trial court has broad discretion in
deciding whether evidence rises to this level, and its decision will not be
disturbed on appeal unless it was arbitrary, capricious, or patently absurd.
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
In addition to being relevant to Velazquezhuar’s propensity for
domestic violence under section 1109, the hammer rampage evidence was
also relevant to show Velazquezhuar was motivated by jealousy-fueled
hatred, as opposed to heat of passion, when he attacked Rosas. (See People v.
Kaihea (2021) 70 Cal.App.5th 257, 265 [motive evidence is relevant to refute

8
a claim of heat of passion].) Yet, in terms of prejudice, the evidence was not
remote, disputed, or confusing; nor was it any more inflammatory than the
evidence regarding the charged offense. Therefore, it was not unduly
prejudicial under section 352, and the trial court did not abuse its discretion
or violate Velazquezhuar’s fair trial rights by allowing the jury to consider it.
(People v. Whisenhunt (2008) 44 Cal.4th 174, 205; People v. Ewoldt (1994) 7
Cal.4th 380, 405.)
In a related argument, Velazquezhuar maintains the trial court
also erred in instructing the jury it could consider the hammer rampage
evidence as proof he had propensity to commit domestic violence and was
thus likely to murder Rosas. The argument is based on Velazquezhuar’s
belief that the hammer rampage does not constitute domestic violence for
purposes of section 1109. As we have explained, however, that belief is
incorrect. We therefore reject Velazquezhuar’s related instructional claim.
II.
THE PROVOCATION THEORY OF SECOND DEGREE MURDER
Velazquezhuar argues that, when considered in conjunction with
the jury instructions on heat of passion voluntary manslaughter, the trial
court’s instructions on the provocation necessary to reduce first degree
murder to second degree murder were deficient. We cannot agree.
On appeal, jury instructions should be interpreted “‘to support
the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.’” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111–1112.)
Instructional error will not be found unless it is reasonably likely the jury
misunderstood or misapplied the instructions in a manner that violated the
defendant’s rights. (People v. Franco (2009) 180 Cal.App.4th 713, 720.) In
making this determination, we consider the record as a whole, including the

9
specific instructions being challenged, the evidence adduced at trial, and the
arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 36–37; People v.
McPeters (1992) 2 Cal.4th 1148, 1191, superseded by statute on another
ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
We also “presume jurors can understand and correlate all instructions given.”
(People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
Velazquezhuar’s instructional claim is based on the different
mental states that are required to reduce the crime of first degree murder to
a lesser offense. As explained in People v. Jones (2014) 223 Cal.App.4th 995,
1000–1001, “a subjective test applies to provocation as a basis to reduce
malice murder from the first to the second degree: it inquires whether the
defendant in fact committed the act because he was provoked. The rationale
is that provocation may negate the elements of premeditation, deliberateness
and willfulness that are required for that degree of the crime. [Citation.] But
more is required to reduce malice murder to voluntary manslaughter. For
that, an objective test also applies: the provocation must be so great
that . . . it ‘would have caused a person of average disposition to act rashly
and without due deliberation, that is, from passion rather than from
judgment.’”
Consistent with these principles, the trial court instructed the
jury pursuant to CALCRIM No. 522, “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 the defendant committed a 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.”

10
Per CALCRIM No. 570, the trial court also instructed the jury, “A
killing that would otherwise be murder is reduced to voluntary manslaughter
if the defendant killed someone . . . in the heat of passion. [¶] The defendant
killed someone . . . in the heat of passion if: [¶] One, the defendant was
provoked. [¶] Two, as a result of the provocation, the defendant acted rashly
and under the influence of intense emotion that obscured his reasoning or
judgment. [¶] And three, 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.”
Regarding the crime of voluntary manslaughter, the trial court
further instructed: “The defendant is not allowed to set up his 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,
in the same situation, and knowing the same facts, would have reacted from
passion rather than from judgment.” (See CALCRIM No. 570.)
Velazquezhuar does not dispute CALCRIM No. 570 properly
conveyed the objective standard of provocation that applies when deciding
whether to reduce a murder to voluntary manslaughter. But he contends
CALCRIM No. 522 was flawed because it failed to inform the jury that a
different standard, turning on the defendant’s subjective state of mind,
controls when deciding whether to reduce a first degree premeditated murder
to second degree murder. He fears the jury may have conflated the two
standards and failed to realize the provocation required to reduce a murder
from first to second degree is judged by a subjective standard, regardless of
whether it would be sufficient to cause the average person to act from passion
under the objective standard.

11
However, the objective standard was not mentioned in CALCRIM
No. 522. Rather, it was only mentioned in CALCRIM No. 570, which
explained provocation in the context of heat of passion voluntary
manslaughter. Although both instructions deal with provocation, it is not
reasonably likely the jury imported the objective standard from CALCRIM
No. 570 in applying the evidence to CALCRIM No. 522.
In fact, it would be “illogical” to do so because then “there would
be no circumstances under which murder could be reduced from first to
second degree based on provocation without being further reduced to
manslaughter. Yet CALCRIM No. 522 instructed that provocation could
reduce the degree of murder. Thus, the jury would not have understood
CALCRIM No. 522 to say that the same standard governed provocation as it
related to both the elements of first degree murder and the heat of passion
theory of voluntary manslaughter.” (People v. Ocegueda (2023) 92
Cal.App.5th 548, 559; see also People v. Jones, supra, 223 Cal.App.4th at pp.
999–1003 [rejecting the argument that CALCRIM Nos. 522 and 570 failed to
adequately explain the objective standard of provocation applies only to
voluntary manslaughter and not to the degree of murder the defendant
committed].)
This conclusion is bolstered by the prosecutor’s closing argument,
during which she repeatedly explained that an objective standard governs
whether provocation or heat of passion is sufficient to reduce a murder to
voluntary manslaughter, whereas a subjective standard governs whether
those mitigating circumstances are sufficient to reduce a premeditated first
degree murder to murder in the second degree. The prosecutor even gave a
hypothetical example to illustrate the distinction between these two
standards. Under these circumstances, it is not reasonably likely the jury

12
misconstrued the trial court’s instructions in a manner that abridged
Velazquezhuar’s rights.
In arguing otherwise, Velazquezhuar points out that, during its
deliberations, the jury asked the trial court questions about second degree
murder and heat of passion. Specifically, the jury wanted to know, “If all
jurors believe that there is malice, either implied or express, this seems to
indicate murder. Is this second-degree murder unless one of the two theories
of first-degree murder [is] also satisfied?” The trial court told the jury that is
correct.
The jury also asked, “If the jury agrees to first-degree murder,
but a juror or jurors also believe there was . . . heat of passion as well, does
this automatically downgrade the verdict to voluntary manslaughter? The
instructions on voluntary manslaughter . . . appear to imply that.”
The trial judge replied, “If the jury is unanimous that the
defendant killed in the heat of passion as defined in CALCRIM 570, . . . then
a murder, whether it is a first degree or second degree, is reduced to the
crime of voluntary manslaughter. I also refer you to [the final paragraph of
CALCRIM No. 570] which states, . . . ‘The People have the burden of proving
beyond a reasonable doubt that the defendant did not kill as a 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.’”
Velazquezhuar asserts the trial court’s responses failed to apprise
the jury that provocation and heat of passion can not only reduce a murder to
voluntary manslaughter, but they can also reduce a first degree murder to
second degree murder. However, CALCRIM No. 522 spelled that out very
clearly. And since the jury’s second question focused on the relationship
between heat of passion and voluntary manslaughter, the court properly

13
limited its response to CALCRIM No. 570, the central instruction on those
topics. Having been instructed to consider all the instructions together, it is
not reasonably likely the jury failed to realize CALCRIM Nos. 522 and 570
set forth different standards for reducing the crime of first degree murder to
a lesser offense. We thus reject Velazquezhuar’s challenge to those
instructions.
III.
THE INSTRUCTIONS ON LYING-IN-WAIT FIRST DEGREE MURDER
Velazquezhuar also challenges how the trial court defined the
first degree murder theory of lying in wait. In his view, the court’s
instructions failed to explain the heightened mental state that theory
requires, and the court’s answer to one of the jury’s questions during
deliberations compounded the error. Again, we disagree.
As noted above, Velazquezhuar was charged with two theories of
first degree murder, premeditation and lying in wait. (Pen. Code, § 189, subd.
(a).) Prior to instructing on those theories, the trial court explained to the
jury that murder requires malice, either express or implied, and all murders
are deemed to be second degree unless the prosecution proves beyond a
reasonable doubt the defendant committed murder in the first degree.
Following its instructions on first degree premeditated murder,
the trial court turned to the lying-in-wait theory and instructed the jury as
follows: “The defendant is guilty of first-degree murder if the People have
proved that the defendant murdered by lying in wait or immediately
thereafter. [¶] The defendant committed murder by lying in wait if: [¶] One,
he concealed his purpose from the person killed. [¶] Two, he waited and
watched for an opportunity to act. [¶] And three, then from a position of
advantage, he intended to and did make a surprise attack on the person

14
killed. [¶] The lying in wait does not need to continue for any particular
period of time, but its duration must be substantial enough to show a state of
mind equivalent to premeditation and deliberation.”
During its deliberations, the jurors sent the trial judge a note
asking, “If we satisfy the lying-in-wait aspect of first-degree murder, do we
need to find the defendant had express or implied malice to satisfy first-
degree murder or is lying in wait sufficient alone?” The judge answered, “To
find the defendant guilty of murder, you must find that at the time of the act
or acts that caused death, . . . the defendant had either express or implied
malice.”
Velazquezhuar concedes these instructions were correct, as far as
they went. As he did in the trial court, however, he contends the court should
have provided the jury further instruction on the mental state required for
lying-in-wait murder. Relying on People v. Brown (2023) 14 Cal.5th 453
(Brown), Velazquezhuar argues the court should have instructed the jury
that lying-in-wait murder required proof he possessed a wanton and reckless
intent to inflict injury that was likely to cause death while he was lying in
wait to kill Rosas.
Although the facts in Brown involved the first degree murder
theory of murder by poison, the California Supreme Court spoke broadly in
that case to the intent required for murder perpetrated by means of poison,
lying in wait, and torture. From an historical perspective, the court noted
that, “In designating murders carried out by these means as first degree
murder, the Legislature intended to require ‘something more’ than the
showing of a malicious or intentional killing required for second degree
murder—something equivalent in turpitude to willfulness, deliberation, and
premeditation.” (Brown, supra, 14 Cal.5th at p. 463.)

15
With respect to the lying-in-wait theory, the Brown court stated
“‘it is not sufficient to merely show the elements of waiting, watching and
concealment. It must also be shown that the defendant did those physical
acts with the intent to take [the] victim unawares and for the purpose of
facilitating [the] attack.’ [Citations.] We have also established that the
defendant must act with a ‘“wanton and reckless intent to inflict injury likely
to cause death”’ [citation], and the period of lying in wait must be sufficient to
show that the defendant had ‘“‘a state of mind equivalent to premeditation or
deliberation’”’ [citation].” (Brown, supra, 14 Cal.5th at p. 465.) If these
requirements are satisfied, “separate proof of premeditated intent to kill is
not required.” (Ibid.)
In support of these principles, the Brown court cited People v.
Laws (1993) 12 Cal.App.4th 786 (Laws), which ruled that “nothing in section
189 requires the lying in wait to have been done with the intent to kill [or]
with the intent to injure.” (Id. at p. 794.) Indeed, Laws held: “The act of lying
in wait with secret purpose in order to gain advantage and take a victim
unawares is particularly repugnant and of aggravated character so as to
justify harsher punishment when the lying in wait results in murder, even if
the waiting and watching were not done with the intent to kill or injure.” (Id.
at p. 793.)
Our Supreme Court echoed that point in Brown. Although the
Brown court described wanton and reckless intent to inflict injury likely to
cause death as a prerequisite for lying-in-wait first degree murder, it
recognized a murder committed by means of lying in wait necessarily
“involves, by its nature, a mental state more ‘cruel and aggravated,’” which
puts it on par with premeditated murder. (Brown, supra, 14 Cal.5th at pp.
465–466, citing Laws, supra, 12 Cal.App.4th at p. 795, among other cases.)

16
We do not read Brown as requiring proof the defendant had the wanton and
reckless intent to inflict injury likely to cause death during the period of lying
in wait, as Velazquezhuar maintains. Rather, the defendant need only
possess such intent at the time of the killing.
Nonetheless, the jury here was instructed lying-in-wait first
degree murder required proof Velazquezhuar acted with malice and he
waited a substantial enough period of time before killing Rosas “to show a
state of mind equivalent to premeditation or deliberation.” Consistent with
Brown, this ensured Velazquezhuar could not be convicted of that offense
unless he possessed the wanton and reckless intent to inflict injury likely to
cause death. Therefore, the trial court was not required to modify its
instruction on lying-in-wait first degree murder to include any additional
mental requirements. Nor was it required to mention any such requirements
in its response to the jury’s question about that offense. The instructions
given were sufficient to apprise the jury of the legal elements for that offense.
IV.
JURY COERCION CLAIM
Lastly, Velazquezhuar asserts the trial court improperly coerced
the verdict by giving the jury a so-called “dynamite” instruction after it
signaled it was having difficulty reaching a verdict. We find no error.
Following five days of trial testimony, the jury began its
deliberations at 3:00 p.m. on the afternoon of November 14, 2023. About an
hour later, the jury informed the trial judge the written instructions it had
received pertained to a different case. The judge acknowledged the error and
provided the jury with the correct instructions just before the evening recess.
Deliberations resumed the following morning and continued
throughout the day until 4:15 p.m., at which time the jury recessed and gave

17
the trial judge a note containing six questions. In addition to the three
questions discussed above, the jurors asked several questions about the
concept of malice. They also requested and were permitted to inspect the pipe
Velazquezhuar used to kill Rosas.
The trial judge responded to the jury’s questions the following
morning, November 16. After that, the jury requested and received a
readback of the testimony of the man who tried to run over Velazquezhuar
while he was attacking Rosas on the sidewalk. The jury then resumed its
deliberations, but at 4:15 p.m. that afternoon, it sent the judge a note saying,
“we cannot reach an agreement on if the defendant is guilty of first degree
murder.” At that point, the trial court declared a recess and ordered the
jurors to return on November 27, after the Thanksgiving holiday. The court
and counsel then met to discuss how to respond to the jury’s note.
The trial court posited two options. Under option one, the court
would ask the jury foreperson to reveal the numerical split of the jury, and
then it would decide whether further deliberations would be fruitful, without
giving the jury any further instructions. Under option two, the court would
either give the jury a “Moore instruction,” from the case People v. Moore
(2002) 96 Cal.App.4th 1105 (Moore), or it would read the jury CALCRIM No.
3551, which, like a Moore instruction, contains suggestions for overcoming
difficulty reaching a verdict. The prosecutor requested the Moore instruction
under option two, and defense counsel requested option one. As between the
Moore instruction and CALCRIM No. 3551, defense counsel said he preferred
CALCRIM No. 3551.
The trial court decided to go with the Moore instruction,
indicating it believed it was the best option in light of the jury’s questions and
the fact the jury had only been deliberating for about two days. Accordingly,

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on the morning of November 27, 2023, the court instructed the jury as
follows:
“Sometimes jurors that have had difficulty reaching a verdict are
able to resume deliberations and successfully reach a verdict on one or more
of the counts. Please consider the following suggestions.”
“Your goal as jurors should be to reach a fair and impartial
verdict if [you are] able to do so based solely on the evidence presented and
without regard for the consequences of your verdict, regardless of how long it
takes to do so. It is your duty as jurors to carefully consider, weigh, and
evaluate all of the evidence presented at the trial, to discuss your views
regarding the evidence, and to listen to and consider the views of your fellow
jurors.
“In the course of your further deliberation, you should not
hesitate to reexamine your own views or to request your fellow jurors to
reexamine theirs. You should not hesitate to change a view you once held if
[you are] convinced it is wrong or to suggest other jurors change their views if
you are convinced they are wrong. Fair and effective jury deliberations
require a frank and forthright exchange of views.
“As I previously instructed you, each of you must decide the case
for yourself, and you should do so only after a full and complete consideration
of all of the evidence with your fellow jurors. It is your duty as jurors to
deliberate with the goal of arriving at a verdict on the charge if you can do so
without violence to your individual judgment.
“Both the People and the defendant are entitled to the individual
judgment of each juror. As I previously instructed you, you have the absolute
discretion to conduct your deliberations in any way you deem appropriate.

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“May I suggest that since you have not been able to arrive at a
verdict using the methods that you have chosen that you consider to change
the methods you have been following, at least temporarily, and try new
methods. For example, you may wish to consider having different jurors lead
the discussions for a period of time or you may wish to experiment with
reverse role playing by having those on one side of an issue present and argue
the other side’s position and vice versa. This might enable you to better
understand the other’s positions.
“By suggesting you should consider changes in your methods of
deliberations, I want to stress I am not dictating or instructing you as to how
to conduct your deliberations. I merely find you may find it productive or do
whatever is necessary to ensure each juror has a full and fair opportunity to
express his or her views and consider and understand the views of the other
jurors.
“I also suggest you read instructions 200 and 3500. [They]
pertain[] to your duties as jurors and make recommendations on how you
should deliberate. The integrity of the trial requires all jurors at all times
during their deliberations conduct themselves as required by the
instructions.
“The decision the jury renders must be based on the facts and the
law. You must determine what the facts [sic] have been proven from the
evidence received in the trial and not from any other source. A fact is
something proved by the evidence or stipulation.
“Second, you must apply the law as I stated it to you to the facts
as you determine them and this way arrive at a verdict. You must accept and
follow the law as I state it to you regardless of whether you agree with the
law. If anything concerning the law said by the attorneys or their arguments

20
or at any other time during the trial conflicts with my instructions on the
law, you must follow my instructions.
“Instruction 3500 defines the jury’s duty to deliberate. The
decisions you make in this case must be based on the evidence received in the
trial and the instructions given by the [c]ourt. . . .
“These are the matters this instruction requires you to discuss for
the purposes of reaching a verdict. You should keep in mind the
recommendations this instruction suggests when considering the additional
instructions, comments, and suggestions I have made in the instructions now
presented to you.
“I hope my comments and suggestions may have some assistance
to you. You’re ordered to continue deliberations at this time. If you have other
questions, concerns, requests or any communications you desire to report to
me, please put these in writing on the form my bailiff has provided you with.
Have them signed and dated by your foreperson, and then please notify the
bailiff.”
The jurors received these instructions at about 9:30 a.m. An hour
later, the trial court granted the jurors’ request to have Velazquezhuar’s
testimony read back to them. The readback was completed at 2:16 p.m., and
at 4:35 p.m. the jury informed the court it had reached a verdict.
It is against this factual backdrop that we assess
Velazquezhuar’s claim the trial court improperly coerced the jury into
reaching a verdict. Our analysis is guided by Penal Code section 1140, which
states, “Except as provided by law, the jury cannot be discharged after the
cause is submitted to them until they have agreed upon their verdict and
rendered it in open court, unless . . . at the expiration of such time as the

21
court may deem proper, it satisfactorily appears that there is no reasonable
probability that the jury can agree.”
For purposes of this provision, “‘The determination whether there
is a reasonable probability of agreement rests in the discretion of the trial
court. [Citations.] The court must exercise its power, however, without
coercion of the jury, so as to avoid displacing the jury’s independent judgment
“in favor of considerations of compromise and expediency.” [Citation.]’
[Citation.] The question of coercion is necessarily dependent on the facts and
circumstances of each case.’” (People v. Sandoval (1992) 4 Cal.4th 155, 195–
196.)
Velazquezhuar likens the instruction given here to the one given
to the jury in Allen v. United States (1896) 164 U.S. 492. That instruction—
known as a “‘dynamite’” instruction (Green v. United States (5th Cir. 1962)
309 F.2d 852, 853)—encouraged the jurors in the minority to consider
whether their views were reasonable in light of those expressed by those in
the majority, and it advised the jury to consider the case must be decided at
some point, whether in the current trial or by retrial. (Allen v. United States,
at pp. 501–502.) Although the United States Supreme Court ruled the
instruction passed federal constitutional muster, the California Supreme
Court disapproved it under state law in People v. Gainer (1977) 19 Cal.3d 835
(Gainer).
Finding the instruction constituted an impermissible means of
blasting a verdict out of a deadlocked jury, Gainer held “it is error for a trial
court to give an instruction which either (1) encourages jurors to consider the
numerical division or preponderance of opinion of the jury in forming or
reexamining their views on the issues before them; or (2) states or implies
that if the jury fails to agree the case will necessarily be retried.” (Gainer,

22
supra, 19 Cal.3d at p. 852, disapproved on other grounds in People v. Valdez
(2012) 55 Cal.4th 82, 163.)
Velazquezhuar contends the instruction given here violated the
first Gainer prohibition by telling the jurors they “should not hesitate to
reexamine [their] views.” According to Velazquezhuar, this put undue
pressure on the minority jurors to consider the reasonableness of their
position and acquiesce to the verdict reached by the majority. In fact,
however, the instruction made clear each juror had to decide the case for him-
or herself, without sacrificing their individual judgment. And although the
instruction encouraged debate to help the jurors understand each other’s
positions, it expressly stated it was not intended to dictate the manner of
deliberations. Instead, the instruction encouraged the jury to “do whatever is
necessary to ensure each juror has a full and fair opportunity to express his
or her view and consider and understand the views of the other jurors.” It
also told the jurors their verdict had to be fair, impartial, and based solely on
the evidence and the law.
Taken together, these admonishments were sufficient to guard
against the possibility of undue influence on the minority jurors. The trial
court’s instructions did not improperly imply the minority jurors should
abandon their independent judgment and change their position simply
because it was not shared by the majority of the jurors. Accordingly, the
instructions did not violate the first prohibition against jury coercion
expressed in Gainer.
Nor did they violate the second Gainer prohibition by improperly
suggesting to the jurors a verdict had to be reached at some point, and if they
failed to do so, the case would have to be retried before another jury. Indeed,
the instruction did not mention anything about the potential for a retrial. As

23
Velazquezhuar correctly observes, it did say the jurors’ “goal” was to reach a
verdict. But a goal is different than a mandate. The instruction did not cross
the line between encouraging the jury to reach a verdict, which is proper, and
coercing the jury to do so, which is not. (People v. Peoples (2016) 62 Cal.4th
718, 783.)
In fact, Velazquezhuar concedes the instruction was materially
indistinguishable from the one approved in Moore and other cases. (See
Moore, supra, 96 Cal.App.4th at pp. 1118–1122 [describing the instruction as
“excellent” and finding it was fully compliant with the dictates of Gainer];
People v. Whaley (2007) 152 Cal.App.4th 968, 982–983 [two-to-one decision
rejecting the claim “Moore was wrongly decided and should not be followed”];
People v. Hinton (2004) 121 Cal.App.4th 655, 661 [describing the Moore
instruction as “a model for how to instruct the jury following its initial
deadlock”].) Contrary to what Velazquezhuar would have us conclude, these
cases did not interpret or apply Gainer incorrectly. We join them in approving
the instruction the trial court gave here.
Velazquezhuar further contends the trial court was remiss for
failing to make an appropriate inquiry before giving the challenged
instruction. He claims the court should have polled the jurors to find out how
they were numerically divided, how many ballots they had taken, which
direction the vote was trending, whether they believed further deliberations
would be fruitful, and whether they needed any additional information to
assist them in reaching a verdict.
However, the trial court has broad discretion in determining how
to respond to a jury’s reported impasse. Although the measures suggested by
Velazquezhuar are authorized by California Rules of Court, rule 2.1036, a
trial court does not abuse its discretion merely by failing to utilize them when

24
responding to a jury’s impasse. (People v. Debose (2014) 59 Cal.4th 177, 210
[trial court need not inquire into the jury’s numerical division]; People v.
Peoples, supra, 62 Cal.4th at p. 782 [trial court need not poll jury as to the
likelihood of reaching a unanimous verdict]; People v. Rojas (1975) 15 Cal.3d
540, 547 [trial court need not take a “formal vote” of the jury]; People v.
Salazar (2014) 227 Cal.App.4th 1078, 1088 [trial court has discretion when
deciding which tools to use when facing a jury deadlock].)
Moreover, even if the jurors had been polled and reported
negatively on the prospects for a unanimous verdict at that time, it still
would not have been unreasonable for the trial court to have them continue
deliberating. (See People v. Sandoval, supra, 4 Cal.4th at pp. 194–197; People
v. Rodriguez (1986) 42 Cal.3d 730, 765–770.) After all, the jury had only been
deliberating for about two days when it reported being deadlocked. That is
not a particularly long time for a five-day murder trial that involved two
theories of first degree murder, a special circumstance allegation, and the
heat of passion theory of voluntary manslaughter.
All things considered, the trial court acted reasonably and fairly
under the circumstances presented. The court neither coerced the jury into
reaching a verdict by giving the instruction approved in Moore nor abused its
discretion by failing to take other measures in response to the jury’s impasse.
We reject Velazquezhuar’s claims to the contrary.2

2
Having rejected all of Velazquezhuar’s individual claims of trial
court error, we reject his claim of cumulative error because there is no error
to accumulate. (See People v. Johnson (2015) 60 Cal.4th 966, 996.)

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DISPOSITION
The judgment is affirmed.

GOODING, J.

WE CONCUR:

SANCHEZ, ACTING P. J.

DELANEY, J.

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