Hernandez

A jury convicted Christopher Prieto Hernandez of first degree murder on a theory of premeditation and deliberation. On appeal, Hernandez asserts the standard jury instruction on provocation (CALCRIM No. 522) was incomplete and misleading as it relates to second degree murder. We reject this contention and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of July 26, 2003, Hernandez had an argument with his girlfriend. After the argument, he left their home on foot. He had a gun with him, and as he left their residence he fired the gun into the ground.

About 10:00 p.m. that same night, Eleazar Verdugo and Mary Quiroz (Mary) were sitting in Verdugo’s car in the parking area of the duplex where Verdugo lived. According to Mary, a short while earlier Hernandez had seen them in the neighborhood and asked Verdugo for a ride to Riverside. Verdugo had agreed, and she and Verdugo were sitting in the car waiting for Hernandez to arrive. While they were waiting in the car, they were joined by three other men, including Mary’s brother, victim Alfonso Quiroz (Alfonso). Alfonso and the two men were standing outside the car talking to Mary and Verdugo. About 10 to…