People v. Tzul

Filed 4/8/26 (unmodified opn. attached)
                          CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN



 THE PEOPLE,                               B343256

        Plaintiff and Respondent,          (Los Angeles County
                                           Super. Ct. No. BA496514)
        v.
                                           ORDER MODIFYING
 PEDRO THOMAS DELEON                       OPINION AND DENYING
 TZUL,                                     REHEARING
                                           (No change in the appellate
        Defendant and Appellant.           judgment)



      THE COURT:
      The opinion filed on March 23, 2026 is modified as follows:
      On page 21, the first two sentences of the paragraph beginning with
“Like the victim in Ortiz, supra, 38 Cal.App.4th 377, Tzul could have been
mistaken” are deleted and replaced with the following language:

       Like the victim in Ortiz, supra, 38 Cal.App.4th 377, Tzul could have
       been mistaken about what Martha and Antonio were doing. But even if
       he was wrong, his statement was relevant to show what he believed he
       discovered.

       There is no change in the appellate judgment.
     Respondent’s petition for rehearing is denied.



______________________________________________________________________
MARTINEZ, P. J.                SEGAL, J.                    GIZA, J.*




*    Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


                                     2
Filed 3/23/26 (unmodified opinion)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                              DIVISION SEVEN


 THE PEOPLE,                            B343256

        Plaintiff and Respondent,       (Los Angeles County
                                        Super. Ct. No. BA496514)
        v.

 PEDRO THOMAS DELEON
 TZUL,

        Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of
Los Angeles County, Gustavo N. Sztraicher, Judge. Reversed
with directions.
      Judith Kahn, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Rob Bonta, Attorney General, Charles C. Ragland,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Charles S. Lee and
Michael C. Keller, Deputy Attorneys General, for Plaintiff
and Respondent.
                        INTRODUCTION

       Trial courts have broad discretion to exclude evidence
under Evidence Code section 3521 if the evidence’s probative
value is substantially outweighed by the probability the evidence
will create a substantial danger of undue prejudice. Broad, but
not limitless. This appeal tests the limit.
       Pedro Thomas DeLeon Tzul appeals from the judgment
after a jury convicted him of first degree murder for killing his
girlfriend, Martha Garcia, and second degree murder for killing
Martha’s brother, Antonio Garcia. Tzul argues the trial court
erred in excluding a handwritten note found at the crime scene
that included statements by Tzul indirectly admitting he killed
Martha and Antonio, but stating he acted in a rage after
discovering they were having sex. The trial court excluded the
note under section 352 on the prosecutor’s objection during the
People’s case, but ultimately admitted the note when Tzul, to
show he acted with provocation, was forced to testify to get the
note into evidence. He argues the trial court’s error was
prejudicial because, had he not testified, it is reasonably likely
the People would not have presented sufficient evidence of
premeditation and deliberation to convict him of first degree
murder or of malice to convict him of second degree murder.
       We conclude that, though the trial court did not err in
denying Tzul’s motion for a judgment of acquittal under Penal
Code section 1118.1, the court erred in sustaining the
prosecutor’s objection to the admission of the note. We also


1       Undesignated statutory references are to the Evidence
Code.




                                 2
conclude that, had the trial court admitted the note in the
People’s case and not required Tzul to testify to get the note into
evidence, it is reasonably probable Tzul would not have been
convicted of first degree murder or even second degree murder.

      FACTUAL AND PROCEDURAL BACKGROUND

       A.    Tzul Kills His Girlfriend and Her Brother
       Tzul, who was 41 years old, and Martha, who was 35 years
old, lived together for six years. In May or June 2021 Martha’s
21-year-old brother, Antonio, arrived from Mexico and moved into
their apartment. On June 22, 2021 a neighbor whose unit faced
Tzul and Martha’s apartment heard shrieking. Two days later
Tzul sent a text message to his siblings: “Forgive me and don’t
worry about me. I’ll find a way to live a new life after what I
did.” He also wrote: “I did something terrible, and don’t get[ ]
close to the place where I lived because it is a big disaster.”
       Concerned by the text messages and unable to reach Tzul
or Martha by phone, Tzul’s brothers and his mother went to the
apartment, and the building manager unlocked the door. When
the manager entered the apartment, he noticed it was “freezing
cold” and saw two bodies on the floor rolled in carpets.
A paramedic unrolled the rugs, which were tied with cords,
discovered the bodies of Martha and Antonio, and determined
they were dead. Martha had 29 stab wounds, including one to
her neck, one that punctured her lung, and one that caused her
small intestine to protrude. Antonio had 37 stab wounds,
including a sharp force injury across his neck that cut all the way
to the spinal column. There were blood trails and spatter




                                 3
throughout the apartment. Police found a bag with bloody rags
and rubber gloves in a trash can.
        A window air conditioning unit was on a coffee table
blowing cold air toward the two bodies. They had not
decomposed significantly because it was cold and there was very
little blood left in the bodies. Police located Tzul in Mexico, and
he was extradited to Los Angeles.

      B.     The Trial Court Excludes Evidence of a Handwritten
             Note During the People’s Case
       The People charged Tzul with two counts of murder. (Pen.
Code, § 187, subd. (a).) The People alleged as an aggravating
circumstance the crimes involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness, within the meaning
of California Rules of Court, rule 4.421(a)(1).
       The People filed a motion in limine to preclude Tzul from
introducing into evidence a handwritten note the police found at
the scene. The note read: “I found her having sex with her own
brother and that fills me with rage. I’m asking for forgiveness.
I don’t know whether God will do it.” The trial court ruled that
Tzul could not, during the People’s case, introduce the note into
evidence or cross-examine the detective who found the note, but
that Tzul could testify about the note if he chose to testify.

      C.    Tzul Testifies and Introduces the Handwritten Note
      During the defense case Tzul testified on direct
examination he wrote the note, and he read it out loud. He also
introduced the note into evidence.




                                 4
       The prosecutor cross-examined Tzul at length about the
killings.2 Tzul testified that he and Martha had been together for
12 years and that they had been trying without success to have a
child. Tzul stated that, one day after Antonio came to live with
him and Martha, Tzul took his mother home and, as he drove
back to his apartment, he called Martha. While the phone was
ringing, Tzul had a “vision” Martha was “having sex with
someone,” which left him “speechless.” Tzul sent Martha a text
message stating he was going to stop at a gas station, but instead
he went straight home. When he got his keys out to open the
door, he heard someone running inside. He went in and saw
Antonio acting “nervous.” Tzul also noticed Antonio hugged
Martha a lot, and he told detectives that Antonio and Martha
brushed their teeth together and talked for hours in the bedroom.
       Because Tzul felt Antonio and Martha’s behavior was
“incorrect,” he decided to record their interactions. Before Tzul
left for work, he put a cellphone on a shelf in the bathroom and
turned on an audio recorder. When Tzul returned, the phone was
in a different position, but was still recording. A day or two later,
he left another phone to record in the bedroom, and he heard
them “having sex in the living room.”
       On June 22, 2021 Martha and Antonio went for a walk.
Tzul told Martha he was going to his mother’s house, and he
called his brother Julio and asked Julio to say that, if Martha
called, Tzul had gone to see his mother. Tzul moved his car so


2     Tzul testified only briefly on direct examination: He
identified the note, said he wrote it, and read it to the jury.
Counsel for Tzul objected to the prosecutor’s cross-examination as
beyond the scope of direct examination, but the trial court
overruled the objection. Tzul does not challenge that ruling.




                                 5
Martha would think he was not home. He went into the
apartment, hid under the bed, and muted his phone. When Tzul
got close to the bathroom door, he heard Martha making “very
sensual sounds.” Tzul went to the kitchen to clear his mind, but
he “felt a force that [he] had never felt before,” “a lot of pain,” and
“pressure inside” him. He grabbed a knife from the table, put it
in his pocket, and walked into the bedroom. Tzul closed the
bedroom door and “attacked [Martha] like an insane man.”
Martha screamed, and Antonio came to the bedroom. Tzul was
“attacking out of control.” Antonio grabbed Tzul’s hand, but Tzul
“put him under control very quickly, and everything happened
very quickly.” Tzul stabbed Antonio and chased him into the
living room. He “didn’t understand what [he] was doing” and
“had already become . . . a monster.” Tzul dragged Martha’s body
out of the bedroom, wrapped the two dead bodies in rugs, tied
them with cords, and stacked them on top of each other. He
cleaned the knife and put it in a drawer, took a bath, and left for
Mexico.
       Tzul’s mother testified she thought Martha and Antonio’s
interactions were too intimate for siblings. She stated that
Martha caressed Antonio’s head, that Antonio hugged Martha
around the waist, and that they laughed and spoke in a language
Tzul’s mother did not understand.

      D.     The Jury Convicts Tzul, and the Trial Court
             Sentences Him
       The jury found Tzul guilty of first degree murder for the
killing of Martha and guilty of second degree murder for the
killing of Antonio. The jury also found both offenses involved
great violence, great bodily harm, threat of great bodily harm, or




                                   6
other acts disclosing a high degree of cruelty, viciousness, or
callousness, within the meaning of California Rules of Court,
rule 4.421(a)(1). The trial court sentenced Tzul to consecutive
terms of 25 years to life on his conviction for first degree murder
and 15 years to life on his conviction for second degree murder.
Tzul timely appealed.

                          DISCUSSION

      A.     The Trial Court Did Not Err in Denying Tzul’s
             Motion for Judgment of Acquittal Under
             Penal Code Section 1118.1
      After the People presented their case, Tzul moved under
Penal Code section 1118.1 for a judgment of acquittal of first
degree murder on the ground there was insufficient evidence of
premeditation. The trial court denied the motion. The court
stated that Tzul bought the air conditioning unit and placed it in
front of the dead bodies and that the “only reasonable inference
to be drawn” from the evidence was Tzul “had a plan” to use the
air conditioner to prevent the bodies from decomposing and
starting to smell, allowing Tzul to “make his getaway.”

             1.    Applicable Law and Standard of Review
       “Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).)
“‘First degree murder “has the additional elements of willfulness,
premeditation, and deliberation which trigger a heightened
penalty.”’” (People v. Alvarez (2025) 18 Cal.5th 387, 470; see
People v. Gomez (2018) 6 Cal.5th 243, 282.) “‘“‘“In this context,
‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’




                                 7
means ‘formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against
the proposed course of action.’”’ [Citation.] ‘“An intentional
killing is premeditated and deliberate if it occurred as the result
of preexisting thought and reflection rather than unconsidered or
rash impulse.”’ [Citations.] ‘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.’”’” (In re Lopez (2023)
14 Cal.5th 562, 580; see People v. Morales (2020) 10 Cal.5th 76,
88.)
       In People v. Anderson (1968) 70 Cal.2d 15 the Supreme
Court “identified ‘three basic categories’ of evidence that may be
probative of premeditation and deliberation: 1) planning activity,
2) motive, and 3) manner of killing.” (People v. Barrett (2025)
17 Cal.5th 897, 965 (Barrett); see People v. Mendoza (2011)
52 Cal.4th 1056, 1069.) Though the Anderson factors are
“intended as a framework to assist reviewing courts in assessing
whether the evidence supports an inference that the killing
resulted from preexisting reflection and weighing of
considerations,” they “are not exhaustive or exclusive.” (People v.
Boatman (2013) 221 Cal.App.4th 1253, 1270; see People v.
Morales, supra, 10 Cal.5th at p. 89.)
       Penal Code section 1118.1 provides: “In a case tried before
a jury, the court on motion of the defendant or on its own motion,
at the close of the evidence on either side and before the case is
submitted to the jury for decision, shall order the entry of a
judgment of acquittal of one or more of the offenses charged in
the accusatory pleading if the evidence then before the court is
insufficient to sustain a conviction of such offense or offenses on




                                 8
appeal.” We review an order denying a motion for acquittal
under Penal Code section 1118.1 “‘using the same standard
“employed in reviewing the sufficiency of the evidence to support
a conviction.”’” (Barrett, supra, 17 Cal.5th at p. 964; see People v.
Veamatahau (2020) 9 Cal.5th 16, 35.) Where a defendant makes
a motion under Penal Code section 1118.1 “at the close of a
prosecutor’s case-in-chief,” we examine “the state of the evidence
as it stood at that point.” (People v. Houston (2012) 54 Cal.4th
1186, 1215; see People v. Cole (2004) 33 Cal.4th 1158, 1213.) We
“‘review the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’” (People v.
Cardenas (2025) 18 Cal.5th 797, 821; see People v. Hin (2025)
17 Cal.5th 401, 451.) ““Our review ‘‘“‘presume[s] in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence.’” [Citation.] Even where . . . the
evidence of guilt is largely circumstantial, our task is not to
resolve credibility issues or evidentiary conflicts, nor is it to
inquire whether the evidence might ‘“‘be reasonably reconciled
with the defendant’s innocence.’”’” [Citation.] Instead, we ask
whether there is “‘“ substantial evidence of the existence of each
element of the offense charged”’” such that any rational jury may
have convicted defendant.’” (Barrett, at p. 964; see Veamatahau,
at pp. 35-36.)




                                 9
            2.      There Was Substantial Evidence Tzul Killed
                    Martha with Premeditation and Deliberation
       Tzul argues the trial court erred in denying his motion
under Penal Code section 1118.1 for acquittal on the first degree
murder charge at the close of the People’s case. He contends that
“there was no solid evidence of planning” and that the “brutal
and frantic” manner of killing was inconsistent with
premeditation or deliberation. The People, however, presented
substantial evidence of premeditation and deliberation.
       First, Tzul’s conduct in purchasing the air conditioner and
positioning it next to the bodies was evidence of planning.
A forensic pathologist testified that a body begins to smell as it
decomposes and that a colder temperature “significantly slows
down the rate of decomposition.” The building manager testified
that, when he entered the apartment and discovered the bodies,
it was “really cold.”
       The location of the air conditioner supported an inference
its purpose was to preserve the bodies, not to cool the room. The
bodies were rolled in rugs and placed on the floor between a
coffee table and an entertainment center with a television. The
air conditioner, which was a window unit rather than a portable
unit, was on the coffee table blowing cold air on the two bodies.
The air conditioner’s power cord ran from the table to the
entertainment center. There was evidence the air conditioner
had been purchased recently: Police found the box for the air
conditioner on top of the refrigerator, a plastic bag containing
installation hardware on a chair in the living room, and the
installation and instruction manual on the dining room table. In
addition, in the weeks before the killings, Tzul called the building
manager two or three times asking him to install a window air




                                10
conditioning unit, with the last call occurring within one week of
the killings. From this evidence the jury could reasonably infer
Tzul formulated a plan to kill Martha and use the air conditioner
to slow the decomposition of her body while he escaped to Mexico.
       Second, the manner of killing supported a finding Tzul
killed Martha deliberately and with premeditation. Tzul stabbed
Martha 29 times. Her throat was “cut from side to side,” through
the left external jugular vein and the larynx. Martha also had
two “slicing wounds” from the corners of her mouth and a three-
and-one-half inch deep stab wound to the left chest that
punctured her lung, and her small intestine protruded from a
wound to the abdomen. (See People v. Morales, supra, 10 Cal.5th
at p. 91 [that the killing was “prolonged . . . supports an inference
of deliberation”]; People v. Potts (2019) 6 Cal.5th 1012, 1028
[“‘plunging a lethal weapon into the chest evidences a deliberate
intention to kill’”]; People v. Elliot (2005) 37 Cal.4th 453, 471
[three lethal knife wounds and almost 80 other stab and slash
wounds supported an inference of “a preconceived design to kill”];
People v. San Nicolas (2004) 34 Cal.4th 614, 658-659 [“sheer
number of wounds on [the victim’s] body, many of which
individually would have been fatal, . . . supports a finding of
deliberation”].)
       Citing People v. Williams (2018) 23 Cal.App.5th 396 at
page 410, Tzul argues “the manner of killing was so brutal and
frantic, it ‘is, at least in a vacuum, associated with someone
losing his mind and going berserk, [and] . . . not a state of mind
we associate with premeditation or deliberation.’” Williams does
not support Tzul’s argument. In Williams the defendant stabbed
his wife twice in the neck and inflicted blunt force injuries on her
head, neck, torso, and extremities. (Id. at p. 401.) The defendant




                                 11
argued the victim’s injuries showed an absence of premeditation
and deliberation. (Id. at p. 410.) The court in Williams
disagreed: “The jury could have reasonably found that the
victim’s injuries reflected an emotional, berserk attack, as
suggested by defendant’s briefing. But it was permitted to find
otherwise.” (Ibid.) The same is true here: The number and
severity of knife wounds supported a finding Tzul killed Martha
deliberately and with premeditation, even if the same evidence
might have supported a contrary inference. (See Barrett, supra,
17 Cal.5th at p. 966 [“that the evidence might also be reconciled
with a contrary conclusion as to premeditation and deliberation
does not render it insufficient to overcome a motion for
acquittal”]; People v. Veamatahau, supra, 9 Cal.5th at p. 36 [in
reviewing an order denying a motion under Penal Code
section 1118.1, we do not “‘inquire whether the evidence might
“‘“be reasonably reconciled with the defendant’s innocence”’”’”].)
       Tzul also argues the “trial court incorrectly denied the
motion for dismissal based on the presence of an air conditioning
unit.” Tzul contends that he asked the manager to install an air
conditioner years earlier and that it was 90 degrees on the day of
the killings. He argues there was no evidence that he brought a
knife into the apartment or that he told anyone he intended to
kill Martha. These arguments, however, ask us to reweigh the
evidence and reach a different conclusion than the one the trial
court reached in denying Tzul’s motion under Penal Code
section 1118.1—tasks not appropriate for appellate review. (See
People v. Houston, supra, 54 Cal.4th at p. 1215 [in reviewing an
order denying a motion under Penal Code section 1118.1, we “do
not reweigh evidence”].) Because the People presented
substantial evidence Tzul killed Martha deliberately and with




                                12
premeditation, the trial court did not err in denying his motion
under Penal Code section 1118.1.

      B.    The Trial Court Prejudicially Erred in Excluding the
            Handwritten Note Under Section 352 During the
            People’s Case

             1.     Relevant Proceedings
       As discussed, the People filed a motion in limine to
preclude Tzul from introducing into evidence the handwritten
note he left at the scene. The People argued the statement
“I found her having sex with her own brother and that fills me
with rage” was inadmissible hearsay.
       The court heard extensive argument on the admissibility of
the note. Counsel for Tzul argued the note was admissible under
section 1250, subdivision (a), which provides an exception to the
hearsay rule for statements of the declarant’s state of mind to
prove that state of mind or to explain acts by the declarant.
Counsel argued Tzul’s subjective belief Martha and Antonio were
sleeping together was relevant to Tzul’s provocation defense,
even if he was objectively incorrect. Counsel stated he would
introduce the note during cross-examination of the detective who
found it. Counsel further argued excluding the note would
violate Tzul’s constitutional rights because there was “no other
way that we can get this evidence [the note] in other than him
forfeiting his Fifth Amendment right.”
       The prosecutor asked the court to exclude the note under
section 1252, which states: “Evidence of a statement is
inadmissible under this article if the statement was made under
circumstances such as to indicate its lack of trustworthiness.”




                                13
The prosecutor argued “statements of a defendant are not
trustworthy because they’re made to escape liability.”
       The court initially determined the portion of the note
stating Tzul was “filled with rage” was admissible under
section 1250 as “a statement written by the defendant that
reflects on his state of mind at an earlier time when his state of
mind is at issue.” The court said that it would admit the note
and that it would instruct the jury the portion of the note about
the victims having sex was “not being offered for the truth of the
matter asserted.”
       The prosecutor asked the court to revisit the ruling. The
prosecutor argued the note lacked foundation unless Tzul
testified that and when he wrote it. The prosecutor also argued
that, without evidence of a provocative act (that Tzul discovered
Martha and Antonio were having sex), which the prosecutor
asserted was inadmissible hearsay, evidence Tzul was filled with
rage was not relevant and should be excluded under section 352.
       The court reconsidered its ruling on the admissibility of the
note and, after a break in the proceedings, ruled the note was
inadmissible under section 352. The court stated Tzul’s
statement he was filled with rage was not relevant without the
reason for his provocation. The court said, however, Tzul’s
statement he found Martha having sex with her brother “would
not be relevant unless it’s true. So it really is being offered for
the truth of the matter asserted in conjunction with corroborating
his state of mind.” The court stated that it considered instructing
the jury not to consider the statement for its truth, but that,
“while there is a presumption that a jury follows the [court’s]
instructions,” admitting the statement would establish
provocation, “an essential component” of the defense, “without




                                14
giving the People the opportunity to cross-examine or challenge
the evidence at all.”
      The court ruled the probative value of the “untested, not
subject to cross-examination statement . . . that the defendant
saw the two victims having sex with each other . . . is outweighed
by the undue prejudice of . . . the jury using it for the improper
purpose of concluding that, in fact, he did see them having sex
with each other, which is hearsay being offered for the truth of
the matter asserted.” The trial court ruled that Tzul could not
introduce the note into evidence during the People’s case or cross-
examine the detective who found the note about it, but that Tzul
could testify about the note if he chose to testify.
      At the close of the People’s case, counsel for Tzul made a
motion for a mistrial “based on the court’s . . . ruling regarding
the note,” stating his “client is only taking the stand because of
that ruling.” In denying the motion the court stated: “There is
no question in this court’s mind that [admitting the note] would
be unduly prejudicial insofar as the jury would have considered it
for the illegitimate purpose of proving the truth of the matter
asserted without being tested.”

            2.     The Note’s Probative Value Was Not
                   Substantially Outweighed by a Probability of
                   Creating a Substantial Danger of Undue
                   Prejudice, Confusing the Issues, or Misleading
                   the Jury
      Under section 352 “[t]he court in its discretion may exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice, of confusing the issues, or of misleading the




                                15
jury.” Evidence “‘“‘should be excluded as unduly prejudicial when
it is of such nature as to inflame the emotions of the jury,
motivating them to use the information, not to logically evaluate
the point upon which it is relevant, but to reward or punish one
side because of the jurors’ emotional reaction. In such a
circumstance, the evidence is unduly prejudicial because of the
substantial likelihood the jury will use it for an illegitimate
purpose.’”’” (People v. Alvarez, supra, 18 Cal.5th at p. 462; see
People v. Johnson (2022) 12 Cal.5th 544, 610.)
        “Typically, the application of . . . section 352 to defense
evidence does not infringe on a defendant’s constitutional rights.”
(People v. Sedillo (2015) 235 Cal.App.4th 1037, 1063; see People v.
Cunningham (2001) 25 Cal.4th 926, 998.) “But the statute ‘must
yield to a defendant’s due process right to a fair trial and to the
right to present all relevant evidence of significant probative
value to his or her defense.’’ (Sedillo, at pp. 1063-1064; see
Cunningham, at pp. 998-999; People v. Tidwell (2008)
163 Cal.App.4th 1447, 1457.) We review the trial court’s
evidentiary rulings under section 352 for abuse of discretion.
(People v. Mataele (2022) 13 Cal.5th 372, 413; People v. Linton
(2013) 56 Cal.4th 1146, 1181.)
        The note had significant probative value on two of the most
important issues at trial: provocation and Tzul’s mental state.
“‘The evidentiary premise of a provocation defense is the
defendant’s emotional reaction to the conduct of another, which
emotion may negate a requisite mental state.’” (People v. Nelson
(2016) 1 Cal.5th 513, 541; see People v. Ward (2005) 36 Cal.4th
186, 215.) Provocation “may reduce murder from first degree to
second degree.” (People v. Thomas (2023) 14 Cal.5th 327, 384;
accord, People v. Rivera (2019) 7 Cal.5th 306, 328; see People v.




                                16
Ocegueda (2023) 92 Cal.App.5th 548, 557 [provocation can
“reduce the murder to second degree if it precluded the defendant
from deliberating or premeditating”].) 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.” (People v. Jones (2014) 223 Cal.App.4th 995, 1000;
see People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.)
        Murder may be further ‘“reduced to voluntary
manslaughter if the victim engaged in provocative conduct that
would cause an ordinary person with an average disposition to
act rashly or without due deliberation and reflection.”’ (People v.
Enraca (2012) 53 Cal.4th 735, 758-759; see People v. Ocegueda,
supra, 92 Cal.App.5th at pp. 557-558 [“If the provocation that
drove the defendant to passion also meets an objective criterion—
if it is sufficient to cause a person of average disposition to act
rashly and without deliberation—the defendant is deemed to
have acted without malice and is guilty only of voluntary
manslaughter.”].) “‘Heat of passion is a mental state that
precludes the formation of malice and reduces an unlawful killing
from murder to manslaughter. . . . A heat of passion killing . . . is
one caused by an unconsidered reaction to provocation rather
than the result of rational thought.” (People v. Vargas (2020)
9 Cal.5th 793, 828; see People v. Thomas, supra, 14 Cal.5th at
p. 386.)
        Tzul’s statement “I found her having sex with her own
brother and that fills me with rage” was relevant to show that he
was provoked by finding Martha and Antonio having sex and that




                                 17
he killed them in the heat of passion. If the jury found Tzul’s
emotional reaction precluded him from deliberating or
premeditating, the jury could have convicted him of second
degree murder rather than first degree murder in the killing of
Martha. And if the jury found the provocation was reasonable—
i.e., sufficient to cause a person of average disposition to act
rashly and without deliberation—the jury could have convicted
Tzul of voluntary manslaughter. (See People v. Berry (1976)
18 Cal.3d 509, 515 [evidence showed a “two-week period of
provocatory conduct by [the defendant’s] wife . . . that could
arouse a passion of jealousy, pain and sexual rage in an ordinary
man of average disposition such as to cause him to act rashly
from this passion”]; People v. Le (2007) 158 Cal.App.4th 516, 525
[“infidelity of a lover” is sufficient provocation for voluntary
manslaughter]; see also People v. Dominguez (2021)
66 Cal.App.5th 163, 179-180 [“‘anger or rage’” or “any intense
emotion except revenge” can satisfy the subjective component of
provocation].) Indeed, CALCRIM No. 570, which the trial court
gave, lists as an example of heat-of-passion provocation “the
infidelity of a lover.”
        Tzul did not deny he killed Martha and Antonio. The goal
of Tzul’s defense was to convince the jury he was guilty of
voluntary manslaughter (or at worst second degree murder), not
first degree murder. In closing argument counsel for Tzul argued
that Tzul was provoked by the discovery Martha was cheating on
him with her brother and that he killed Martha and Antonio in
the heat of passion. Counsel told the jurors they were “here to
determine the degree of the homicide” and asked them to return
verdicts of “two voluntary manslaughters committed in the heat
of passion.” And aside from Tzul’s testimony (which the court’s




                               18
ruling forced him to give), his written statement—that he
believed Martha and Antonio were having sex and that this filled
him with rage—was the only evidence of provocation, the only
real issue in the case. (Cf. People v. Wright (1985) 39 Cal.3d 576,
583 [evidence the victim was under the influence of a narcotic
had significant probative value, where the defendant’s sole theory
was “that he acted in self-defense in response to the victim’s
irrational behavior,” and no other evidence “was presented to
corroborate defendant’s version of the incident”].)
       The trial court recognized the note was probative on the
issue of provocation, but expressed concern that, if the court
admitted the note, the jury would “hear evidence of provocation
without being subject to cross-examination, without being tested,
without being in any way questioned. And that would be all the
evidence they would have on that issue.” The court concluded
that, even if it instructed the jury not to consider Tzul’s
statement as evidence Martha and Antonio had sex, the jury
would consider it for that improper purpose.
       The trial court did not explain why the jury could not have
followed an instruction the note was relevant to whether Tzul
believed Martha and Antonio had sex, not to whether they in fact
had sex. “Jurors are generally presumed to follow instructions.”
(People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719,
752; see People v. Ortiz (1998) 38 Cal.App.4th 377, 395-396
(Ortiz) [the “jury is presumed to have followed the court’s
instructions” to consider the victim’s statements only to show her
state of mind, “not to prove whether the acts attributed to the
[defendant] in the statement really happened”].) As the Supreme
Court stated in People v. McCurdy (2014) 59 Cal.4th 1063, “There
is no possibility the jury considered evidence of defendant’s




                                19
incestuous conduct as mere proof of propensity or bad character
under Evidence Code section 1108: Although the court initially
ruled some evidence of defendant’s incestuous conduct was
admissible under this provision, it ultimately instructed the jury
that evidence of other crimes was relevant only to prove motive or
intent. The court specifically instructed the jury the evidence of
defendant’s other crimes could not be considered as evidence of
his bad character or propensity to commit the charged crimes.
We presume the jurors understood and followed the court’s
instruction.” (McCurdy, at p. 1096.) There is no reason not to
presume the jury would have been able to follow an instruction to
consider Tzul’s statement he found Martha and Antonio having
sex (and became enraged) as evidence only of Tzul’s state of
mind.
       There are some circumstances where a statement is not
circumstantial evidence of the declarant’s state of mind unless
the statement is true. But this is not one of those circumstances.
As the court in Ortiz, supra, 38 Cal.App.4th 377 explained: “For
instance, if a declarant says: ‘John has beaten me many times,’”
the “jury can only legitimately conclude the declarant feared
John if the statement is truthful.” (Id. at p. 390.) In contrast, if
the statement “reflects a conclusion by the declarant which is
manifestly unsupported by personal knowledge,” for example,
“‘John keeps calling my house and hanging up when
I answer,’ . . . a jury could find the declarant honestly believed
John had engaged in the conduct without necessarily finding that
John had, in fact, done so.” (Ibid.)3 The court in Ortiz concluded

3   Of course, Caller ID will now display the caller’s “telephone
number and other personal information, including the name” of




                                20
the victim’s statement the defendant “had been breathing heavily
outside her bathroom door while she was taking a shower but
that when she opened the door to confront him he was gone” was
“the type of statement that would be easiest for the jury to
consider properly with a limiting instruction. No personal
knowledge was asserted in the statement, and what the declarant
believed is the critical feature of the statement as opposed to the
accuracy of the information.” (Id. at pp. 391, fn. 18 & 395.)
      Like the victim in Ortiz, supra, 38 Cal.App.4th 377, Tzul
could have been mistaken about what was happening on the
other side of the bathroom door. But even if he was wrong, his
statement was relevant to show what he believed he heard. (See
People v. Brooks (1986) 185 Cal.App.3d 687, 694 [“hearing from
bystanders that [the victim] murdered [the defendant’s] brother”
was adequate provocation for voluntary manslaughter because a
“sudden disclosure” of a provocative event “may be the equivalent



the caller, on the recipient’s phone. (People ex rel. Orloff v.
Pacific Bell (2003) 31 Cal.4th 1132, 1139.) But before Caller ID,
you could call a telephone number, wait for an answer, and hang
up, without the person you called knowing who had called. (See
Rinaldo, Caller ID and Fair Credit Reporting: Technology and
Traditional Notions of Privacy Clash (1992) 16 Seton Hall
Legis.J. 403, 413, fn. 42 [“before the advent of Caller ID
. . . callers would identify themselves to the calling party when
making a call”]; Felkowski, Caller Identification Technology and
the Challenges in Adapting to Telecommunications Innovations
(1991) 38 Wayne L.Rev. 415 [“the introduction of a telephone
service named ‘Caller Identification’ (Caller ID) has brought
about a vast change in the way the telephone is used, and
abused,” and “Caller ID has been hailed as the answer to, among
other things, harassing and obscene telephone calls”].)




                                21
of the event itself, even if the disclosure is untrue”]; see also
People v. Lee (1999) 20 Cal.4th 47, 59 [provocation sufficient to
reduce murder to voluntary manslaughter must be “caused by the
victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim”]; People v. Le,
supra, 158 Cal.App.4th at p. 528 [same].) Thus, there was no
logical inconsistency in instructing the jury to consider Tzul’s
statement “I found her having sex with her own brother” as
evidence of his state of mind, but not as evidence of whether the
statement was true.
       The People argue the note had minimal probative value
because, without Tzul’s testimony, there were “significant
foundational questions,” including who wrote the note and when.
The People argue that, because “the note did not specify when the
author found the victims having sex with each other in relation to
the killings, it provided no basis for assessing how much time the
author had in which to ‘cool off’ following the alleged discovery.”
(See People v. Moye (2009) 47 Cal.4th 537, 550 [“‘“if sufficient
time has elapsed between the provocation and the fatal blow for
passion to subside and reason to return, the killing is not
voluntary manslaughter”’”].) The note certainly did not
conclusively establish Tzul killed in the heat of passion, and the
prosecutor could have argued to the jury all the reasons the note
was insufficient evidence of provocation. But because the note
was the only evidence of provocation, the cornerstone of Tzul’s
defense, it was highly probative for purposes of section 352. (See
People v. Minifie (1996) 13 Cal.4th 1055, 1071 [trial court
prejudicially erred in excluding under section 352 evidence third
parties had threatened the defendant where, though the
defendant’s “claim of self-defense was not compelling,” the




                                22
“excluded evidence was central to the defense”]; People v. Wright,
supra, 39 Cal.3d at pp. 583-584 [“that the evidence was not
conclusive” on whether the victim was under the influence of a
narcotic did not “negate its probative value to defendant’s self-
defense claim”]; People v. Basuta (2001) 94 Cal.App.4th 370, 387-
388 [in the trial of a daycare operator accused of assaulting a
child who died from a rebleed of an earlier brain injury, the trial
court prejudicially erred in excluding under section 352 testimony
the child’s “mother, when angry or frustrated, had jerked and
shaken the child,” to support the defendant’s “core defense” that
the child’s mother, not the defendant, caused the earlier injury].)
       The People also argue evidence “the victims were involved
in an incestuous relationship was likely to mislead and inflame
the jury.” True, “‘incest has [ ] a rare power to disgust.’” (United
States v. Thornhill (9th Cir. 2019) 940 F.3d 1114, 1122.) But
even extremely disturbing and inflammatory evidence is
admissible if it is sufficiently probative. Indeed, courts admit
highly prejudicial evidence defendants charged with sex crimes
engaged in incest or viewed pornography. (See, e.g., People v.
McCurdy, supra, 59 Cal.4th at p. 1096 [trial court did not abuse
its discretion in admitting evidence of the defendant’s incestuous
conduct with his sister and instructing the jury to consider the
evidence only to prove motive or intent and not as bad character
or propensity to commit the charged crimes]; People v. Memro
(1995) 11 Cal.4th 786, 864-865 [trial court did not abuse its
discretion in admitting material showing young boys in sexually
graphic poses that “would undoubtedly be disturbing to most
people” and instructing the jury “not to consider the items as
evidence that defendant was evil or was disposed to commit
certain types of crimes”]; People v. Byers (2021) 61 Cal.App.5th




                                23
447, 453-454 [trial court did not abuse its discretion in admitting
evidence the defendant watched pornography before assaulting
the victim, where the material was relevant to the defendant’s
motive and intent, the court admitted only the topics and not the
titles, and the court gave a limiting instruction].) The risk the
jury will ignore a limiting instruction and use the evidence as
proof of bad character or propensity to commit a crime is
significantly less where the evidence impugns the character of a
homicide victim, rather than a defendant whose guilt the jury
must decide.
       The People rely on People v. Fontana (2010) 49 Cal.4th 351,
a case involving the rape shield law, which is not relevant here.
In Fontana the defendant argued the trial court erred in
excluding evidence the rape victim had engaged in sexual
intercourse earlier that day. (Id. at p. 368.) The Supreme Court
stated that the evidence had only slight probative value, but that
the potential prejudice was substantial. (Id. at pp. 369-370.)
“For some jurors, the fact that the victim has engaged in sexual
conduct outside of marriage automatically suggests a receptivity
to the activity or is proof that the victim got what she deserved—
neither of which is a rational or permissible inference.” (Id. at
p. 370; see § 1103, subd. (c)(1) [“evidence of specific instances of
the complaining witness’s sexual conduct . . . is not admissible by
the defendant in order to prove consent by the complaining
witness” in a prosecution for specified sex offenses].) That
impermissible inference—that a sexually promiscuous victim
must have consented to sexual activity with the defendant—is
not relevant in this case.




                                24
              3.    The Error Was Not Harmless
       The People argue any error in excluding the note during
the People’s case was harmless because the trial court admitted
the note during the defense case. Tzul argues the error was
prejudicial because it “compelled [him] to give up his
constitutional right not to testify” and because “his compelled
testimony pushed jurors to convict him of murder.” The People
respond Tzul planned to testify even before the trial court ruled
the note was not admissible during the People’s case.
       The record does reflect that, on the first day of trial, before
jury selection, the trial court asked counsel for Tzul whether his
client was going to testify, and counsel responded: “At this time
I believe he will testify.” But Tzul may well have changed his
mind (as defendants are entitled to do) and decided not to testify
had the court admitted the note into evidence during the People’s
case. Indeed, counsel for Tzul later stated that was the case:
After the close of the People’s case, counsel moved for a mistrial,
stating Tzul was going to have to testify because the court
excluded the note during the People’s case.
       Therefore, we consider whether, under the standard in
People v. Watson (1956) 46 Cal.2d 818, it is reasonably probable
Tzul would have obtained a more favorable result had the court
admitted the note during the People’s case and not required Tzul
to testify to introduce the note into evidence. (See People v.
Brooks (2017) 3 Cal.5th 1, 47 [applying Watson standard to
evidentiary error]; People v. Trujeque (2015) 61 Cal.4th 227, 280
[section 352 error “is reviewed under the reasonable probability
standard for prejudice” of Watson].) “A ‘reasonable probability’
‘does not mean more likely than not, but merely a reasonable




                                  25
chance, more than an abstract possibility.’” (People v. Hardy
(2021) 65 Cal.App.5th 312, 329-330.)
       We conclude there was a reasonable chance the jury would
not have convicted Tzul of first degree murder or even second
degree murder absent the error. First, as discussed, the note was
the only evidence of provocation, which, if believed by the jury,
could negate premeditation and deliberation for first degree
murder or malice for murder. To be sure, the evidence of the air
conditioner supported a finding Tzul acted deliberately and with
premeditation. Had the court admitted the note without Tzul’s
testimony, however, there was a reasonable probability a juror
could have concluded that Tzul asked for the air conditioner, not
as part of a premeditated plan to commit murder, but (as his
lawyer argued) because it was hot and a third person had been
sleeping in the living room and that Tzul did not decide to use the
air conditioner to keep the bodies cool until after he killed
Martha and Antonio and decided to flee to Mexico. And Tzul’s
steps to flee and avoid capture did not, without more, support a
finding of premeditation and deliberation. (See People v.
Anderson, supra, 70 Cal.2d at p. 32 [“Evasive conduct shows fear:
it cannot support the double inference that defendant planned to
hide his crime at the time he committed it and that therefore
defendant committed the crime with premeditation and
deliberation.”]; People v. Wear (2020) 44 Cal.App.5th 1007, 1031
[though evidence the defendant disposed of a gun and attempted
to avoid arrest “may tend to show guilt . . . , we are not aware of
any authority ‘supporting the proposition that defendants tend to
flee [or dispose of evidence] only when they have committed
certain crimes but not others’”].)




                                26
       Second, Tzul’s testimony on cross-examination was quite
damaging. The prosecutor, over counsel for Tzul’s beyond-the-
scope objection, elicited extensive evidence of planning that
undermined Tzul’s claim he killed on rash impulse rather than
after thought and reflection. On cross-examination Tzul
admitted that, prior to killing Martha, he (1) lied to Martha about
going to his mother’s house; (2) asked his brother to cover for him
if Martha called; (3) moved his car so Martha would not see it;
(4) hid under the bed; (5) muted his phone; and (6) took a knife
from the kitchen and put it in his pocket. Tzul also testified that,
after he killed Martha and Antonio, he took a bath, cleaned the
knife, and put it in a drawer.
       The People argue a trial court’s evidentiary ruling may not
“be deemed prejudicial” even “if it influenced a defendant’s
decision to testify.” The People contend Tzul’s argument to the
contrary runs afoul of the rule stated in Luce v. United States
(1984) 469 U.S. 38 and adopted in People v. Collins (1986)
42 Cal.3d 378, but that rule does not apply here. The Luce rule
“requires that if a defendant wishes to preserve for appeal an
objection to a trial court’s in limine ruling permitting
impeachment by a prior conviction, he or she must take the
witness stand and actually suffer such impeachment.” (People v.
Sims (1993) 5 Cal.4th 405, 454; see People v. Ayala (2000)
23 Cal.4th 225, 272.) As the reasons for the Luce rule make
clear, the rule does not apply where a defendant does testify.
Those reasons are: (1) “the trial court, in order to balance the
probative value of a conviction against its prejudicial effect,
‘“must know the precise nature of the defendant’s testimony,
which is unknowable when . . . the defendant does not testify,”’”
and (2) “when the trial court errs in ruling the conviction




                                27
admissible, the reviewing court cannot intelligently weigh the
prejudicial effect of that error unless the defendant has testified.”
(Sims, at pp. 454-455; see Collins, at p. 384.) Those reasons, and
the Luce rule, do not apply here: Tzul testified, we can review his
testimony, and we can evaluate the prejudicial effect of the trial
court’s ruling.

              4.    The Note Was Not Inadmissible Hearsay
       The People argue that, section 352 aside, the trial court
properly excluded the note as hearsay to which the state-of-mind
exception under section 1250 did not apply. The People contend
“the trial court reasonably found that [the] note was not
admissible under Evidence Code section 1250 . . . during the
prosecution case” because “the note did not contain an expression
of [Tzul’s] state of mind at the time he wrote the note.” Though
the trial court did not make that ruling (the court ultimately
excluded the note under section 352), the People made a hearsay
objection in the trial court and argue on appeal their hearsay
objection was valid. (See People v. Smithey (1999) 20 Cal.4th 936,
971-972 [“‘“‘[A] ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If
right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have
moved the trial court to its conclusion.’”’”]; People v. Mani (2022)
74 Cal.App.5th 343, 369, fn. 9 [‘“We will affirm the trial court’s
evidentiary ruling if it is correct on any theory of law applicable
to the case, even if for reasons different than those expressly
stated by the trial court.”’]; see also People v. Zapien (1993)
4 Cal.4th 929, 976 [‘““a ruling or decision, itself correct in law,




                                  28
will not be disturbed on appeal merely because given for a wrong
reason”’”].)
       Tzul’s note included two statements: “I found her having
sex with her own brother” and “that fills me with rage.” The first
statement was not hearsay; the second was hearsay, but
admissible under an exception to the hearsay rule.
       “Hearsay is ‘evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.’ [Citation.]
‘Documents like letters, reports, and memoranda are often
hearsay because they are prepared by a person outside the
courtroom and are usually offered to prove the truth of the
information they contain.’ [Citation.] Hearsay evidence is
generally inadmissible unless it satisfies a statutory exception.”
(People v. Turner (2020) 10 Cal.5th 786, 821.)
       “In contrast, a statement which does not directly declare a
mental state, but is merely circumstantial evidence of that state
of mind, is not hearsay. It is not received for the truth of the
matter stated, but rather whether the statement is true or not,
the fact such statement was made is relevant to a determination
of the declarant’s state of mind.” (Ortiz, supra, 38 Cal.App.4th at
p. 389.) “‘A limiting instruction is required with declarations
used as circumstantial evidence of the declarant’s mental state;
that is, the declaration is not received for the truth of the matter
stated and can only be used for the limited purpose for which it is
offered.’” (People v. Cox (2003) 30 Cal.4th 916, 963, disapproved
on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.)
       Tzul’s statement “I found her having sex with her own
brother” was not hearsay because he did not offer it to prove




                                 29
Martha and Antonio were having sex (i.e., the truth), but as
circumstantial evidence of Tzul’s state of mind (i.e., Tzul believed
Martha and Antonio were having sex). (See Ortiz, supra,
38 Cal.App.4th at pp. 385, 391 [victim’s statement the defendant
“entered the bathroom when she was showering” was “relevant
circumstantial evidence of [the victim’s] unwillingness to have
consensual sex with” the defendant].) Because it was not
hearsay, the trial court could not have excluded it on that ground.
        Tzul’s statement his discovery “fills me with rage” was
hearsay because Tzul offered it for the truth; i.e., to prove he was
“filled with rage.” This hearsay statement, however, was
admissible under section 1250, subdivision (a), which provides an
exception to the hearsay rule for “out-of-court statements to prove
the declarant’s state of mind,” where the declarant’s state of mind
“‘is itself an issue in the action’ or if the evidence ‘is offered to
prove or explain acts or conduct of the declarant.’” (People v.
Riccardi (2012) 54 Cal.4th 758, 814.)4 This part of the note was a
statement of Tzul’s existing state of mind or emotion (rage)
offered to prove his state of mind at a time when it was an issue
in the action; specifically, whether he acted with premeditation or
deliberation (first degree murder vs. second degree murder) or

4      Section 1250, subdivision (a), provides: “Subject to
[s]ection 1252, evidence of a statement of the declarant’s then
existing state of mind, emotion, or physical sensation (including a
statement of intent, plan, motive, design, mental feeling, pain, or
bodily health) is not made inadmissible by the hearsay rule
when: [¶] (1) The evidence is offered to prove the declarant’s state
of mind, emotion, or physical sensation at that time or at any
other time when it is itself an issue in the action; or [¶] (2) The
evidence is offered to prove or explain acts or conduct of the
declarant.”




                                 30
with malice (murder vs. manslaughter).5 (See People v. Crew
(2003) 31 Cal.4th 822, 840 [murder victim’s statement, “‘If you
don’t hear from me in two weeks, send the police,’” was
admissible under section 1250, subdivision (a), to rebut the
defendant’s claim the victim “disappeared of her own accord”];
Ortiz, supra, 38 Cal.App.4th at pp. 385, 391 [victim’s statements
she “was ‘fed up’ with [the defendant] living in her house were
classic examples of section 1250’s exception to the hearsay rule”
offered to rebut the defendant’s claim the victim “had invited him
to her house on the day of the incident and willingly engaged in
sex”].)
       Thus, both statements were admissible, one as not hearsay
and the other as hearsay but subject to an exception to the
hearsay rule. The trial court could not have excluded the note as
hearsay.
       The People also argue the note was inadmissible during the
People’s case because it was not sufficiently authenticated.
Counsel for Tzul, however, could have authenticated the note by
questioning the detective who found it. (See § 1400 [a writing
may be authenticated by “the introduction of evidence sufficient
to sustain a finding that it is the writing that the proponent of
the evidence claims it is”]; § 1421 [“A writing may be
authenticated by evidence that the writing refers to or states
matters that are unlikely to be known to anyone other than the
person who is claimed by the proponent of the evidence to be the
author of the writing.”]; People v. Wilson (2021) 11 Cal.5th 259,


5     The statement was not, as the People argue, inadmissible
“evidence of a statement of memory or belief to prove the fact
remembered or believed.” (See § 1250, subd. (b).)




                               31
305 [content and location of documents law enforcement found in
the defendant’s residence supported authentication]; People v.
Goldsmith (2014) 59 Cal.4th 258, 268 [authentication “may be
supplied by other witness testimony, circumstantial evidence,
content and location”]; People v. Skiles (2011) 51 Cal.4th 1178,
1187 [“a writing can be authenticated by circumstantial evidence
and by its contents”].) And there was little dispute it was the
note Tzul wrote and left at the scene.
      The People also argue that, because Tzul “wrote the self-
serving note after killing two people as he prepared to flee to
Mexico, the statement was undoubtedly made at a time when he
had a motive to deceive and, therefore, failed to satisfy the
trustworthiness requirement.” A trial court may exclude a
statement otherwise admissible under section 1250 if it was
“made under circumstances such as to indicate its lack of
trustworthiness.” (§ 1252; see People v. Harris (2013) 57 Cal.4th
804, 844 [“statement is trustworthy within the meaning of
section 1252 . . . when it is ‘“made in a natural manner, and not
under circumstances of suspicion”’”]; People v. Jurado (2006)
38 Cal.4th 72, 130 [trial court did not abuse its discretion in
excluding the defendant’s “postarrest police interrogation, when
he had a compelling motive to minimize his culpability for the
murder and to play on the sympathies of his interrogators”].)6

6       The trial court could have excluded under section 1252
Tzul’s statement he was filled with rage, but not his statement he
found the victims having sex, which was admissible as
circumstantial evidence of Tzul’s state of mind, and not under the
hearsay exception in section 1250. (See People v. Wilson (2024)
16 Cal.5th 874, 929 [“trustworthiness inquiry” under section 1252
“is a limitation on hearsay evidence admitted under a state of




                               32
       When Tzul wrote the note, he may have had some motive to
minimize his culpability for killing Martha and Antonio, though
not as strong a motive as a defendant who has been arrested and
accused of a crime. Indeed, the cases cited by the People involved
defendants attempting to minimize their culpability by making
statements “during a postarrest police interrogation” (People v.
Jurado, supra, 38 Cal.4th at p. 130) or in a postarrest police
interview and a notebook written days after the murder (People v.
Edwards (1991) 54 Cal.3d 787, 818- 820). Putting aside the
unlikely possibility Tzul was, moments after killing Martha and
Antonio, manufacturing evidence for a heat-of-passion voluntary
manslaughter case to be used at his trial, the note was
incriminating: It strongly suggested Tzul killed two people. The
People have not shown the trial court should have excluded the
note under section 1252 as untrustworthy; indeed, the court
initially ruled the note was admissible under section 1250 (and
hence sufficiently trustworthy). (Cf. People v. Peoples (2016)
62 Cal.4th 718, 758 [trial court could reasonably conclude the
defendant’s statements of remorse to his family and to pastors
“made after defendant’s attorneys had begun to work on his
defense” were unreliable under section 1252]; People v. Livaditis
(1992) 2 Cal.4th 759, 780 [while the defendant “was in jail
awaiting trial he certainly had a motive to claim remorse,” and
his “sincerity in telling potential defense witnesses he was sorry
was suspect”]; People v. Whitt (1990) 51 Cal.3d 620, 643 [“there
was ample ground to suspect defendant’s motives and sincerity”




mind exception [citations]; it does not apply to evidence that is
not hearsay”].)




                                 33
during a prison interview conducted while his appeal was
pending].)

                         DISPOSITION

      The judgment is reversed. The trial court is directed to
vacate Tzul’s convictions and set the matter for a new trial.




                                          SEGAL, J.

We concur:



             MARTINEZ, P. J.



             GIZA, J.*




*     Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.




                                34