Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F00103.
SIMS, J.
A jury convicted defendant Jose Guadalupe Barrera-Rodriguez of the first degree murder of Kelly Johnson (count one) and the second degree murder of her mother, Sharon Johnson (count two). (Pen. Code, §§ 187, subd. (a), 189.) The jury found true a multiple-murder special circumstance (§ 190.2, subd. (a)(3)) and found that defendant personally used a deadly or dangerous weapon, a hammer, in the commission of each offense (§ 12022, subd. (b)(1)). On count one, he was sentenced to state prison for a term of life without the possibility of parole plus one year, to be served consecutively, for the enhancement. On count two, he received a consecutive term of 15 years to life; a one-year term for the enhancement was stayed pursuant to section 654.
Further undesignated statutory references are to the Penal Code. For clarity, we shall refer to each victim by her first name; no disrespect is intended. We shall also refer to witnesses by their first names for privacy purposes.
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for murder. (§§ 2933.2, subd. (c), 4019; Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
The abstract of judgment incorrectly states that sentencing took place on September 19, 2008. We shall direct the trial court to correct the abstract to reflect the correct date of sentencing, October 24, 2008.
On appeal, defendant contends the trial court erred by (1) denying his challenges for cause to three prospective jurors, (2) finding no prima facie case of racial discrimination in the prosecutor’s exercise of peremptory challenges, and (3) refusing his request to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter. We shall affirm the judgment.
FACTS
Defendant entered a plea of not guilty and not guilty by reason of insanity.
Guilt Phase
Prosecution Case-in-Chief
On the morning of January 2, 2007, defendant telephoned 911 and reported that he had killed two people--his baby son’s mother, Kelly, and Kelly’s mother, Sharon. Defendant said that he was calling from the victims’ residence and that he had killed them with a lug wrench about an hour earlier.
A Sacramento County Sheriff’s deputy arrived at the house a short time later and talked to defendant by telephone. Defendant said that he had killed his girlfriend and his girlfriend’s mother. He added that he was inside the house with two small children and was concerned about who would take care of them. After being assured that someone would take care of the children, defendant came out of the house without incident.
Sheriff’s officials entered the house and located the bodies of Kelly and Sharon in a rear bedroom. Their heads were bloodied.
Defendant agreed to be interviewed and was transported to the sheriff’s headquarters downtown. He spoke with Detective Jason Cvitanov for several hours. A videotape of the interview was played for the jury.
Defendant told Cvitanov that he and Kelly had been dating for about a year. He said he was the father of Kelly’s seven-month-old son, Isael, and that Kelly had a four-year-old daughter, Layla, from a previous relationship. Kelly had another boyfriend while she was pregnant with Isael, and defendant paid for a paternity test that confirmed he was the father.
Prior to the murders, defendant and Kelly had argued because she no longer wanted to see him. However, she still allowed him to spend time with Isael. He became jealous of her, and “any little thing” would hurt him. Several little things added up and made him mad.
Before going to Kelly’s house in the early morning hours of January 2, defendant thought to himself, “... I’m finished with everything.” He brought along a hammer, planning to hurt her for “all the things she [had done] to” him. He had been drinking beer and using methamphetamine, and he was feeling “kind of” drunk. He entered the house through an attached garage and went to Kelly’s room, where he remained for 10 to 20 minutes while she slept. She woke up and asked him, “‘What are you doing here?’” He told her that he missed her and Isael. When he asked if he could stay with her, she said no, but offered that he could stay in Isael’s room.
Defendant stayed in Isael’s room for only a minute before returning to Kelly’s room and telling her that he was leaving. But instead of leaving, he struck her head more than three times using a metal bar. She began screaming and fell to the floor. Upon hearing Kelly’s screams, Sharon entered the room. Using the same metal bar, defendant struck Sharon’s head more than three times.
After the attack, defendant walked to a mini-mart. At some point he concealed the metal bar in a plastic bag. He telephoned his brother Sergio, who picked him up. As they drove through a residential area, defendant got out of the car and discarded the metal bar in a garbage can. Then he went to the apartment of someone he knew and remained there for about 30 minutes, “[j]ust trippin’.” Afterward, he walked back to the mini-mart, where he telephoned Sergio again and obtained a ride back to the crime scene. When he arrived there he made the 911 call.
When Detective Cvitanov asked defendant why he had killed Kelly, defendant said, “A lot of things. [¶]... [¶]... I don’t know. I am stupid.” Defendant admitted that what he had done was wrong, saying it was “[t]he worst thing that somebody can do.”
After the interview, defendant led detectives to the garbage can into which he had deposited the murder weapon. Detectives retrieved a claw hammer wrapped in a plastic bag. Defendant’s fingerprint was recovered from the bag. A search of his bedroom yielded a notebook on a nightstand. The notebook was open to a page on which the following was written in Spanish: “I am the only one to blame for all of this. I allowed her to hurt me a lot.” The investigation did not determine when the note was written.
The autopsies confirmed that both Kelly and Sharon had died from blunt force head injuries.
The prosecution presented evidence that defendant had previously assaulted Kelly, including providing a record of his domestic violence conviction in 2006. Defendant told Detective Cvitanov that he had served about five months in jail for striking Kelly with his shoe, and that he had attended domestic violence classes. He added that he once had broken a window of Kelly’s house.
Crystal V., a friend of Kelly from high school, testified that Kelly was afraid of defendant and occasionally asked Crystal to spend the night with her when Kelly’s family was away. On one occasion, Crystal observed that the house’s front window was broken and that the front door appeared to have been kicked open.
Defense
Defendant presented four witnesses in an attempt to show that he lacked the requisite mental state to commit murder.
Doctor Gregory Sokolov, the medical director of psychiatric services at the Sacramento County Jail, testified that six months after the murders (July 2007), defendant was hospitalized in the jail’s psychiatric inpatient unit for 10 days because he said he was having suicidal thoughts. Defendant reported that he had been hearing voices for two to three years; the voices asked him to kill himself and other people. Nine months after the murders (September 2007), defendant was in the psychiatric hospital unit for three additional days at the request of his counsel. Defendant was ultimately diagnosed with “schizoaffective disorder, depressive type.” “Schizo” is short for schizophrenia, a chronic mental illness that can include delusions, hallucinations, and disorganized thoughts. At the time of trial, defendant was taking an antipsychotic medication, as well as an antidepressant.
Defendant’s cousin Marlem M. testified that within the six months preceding the murders (18 to 24 months prior to trial), she heard defendant talking to himself in the garage. He said a man had come to kill him, but no one else was in the garage. Three to six years prior to the trial, Marlem heard defendant say, on a number of occasions, that he would not come to dinner “because the devil was under the table.” Sometimes defendant would accuse Marlem of “talking about [him], ” which was not true. On cross-examination, Marlem testified that defendant once had slammed her up against a wall and had threatened to choke her. He was using drugs during this time.
Maria R., defendant’s aunt and Marlem’s mother, testified that defendant had lived with her for about a month in 2000 or 2001. During that time, she had overheard him talking to people who were not there. He told her that he heard voices telling him to kill himself. He once refused to come to dinner, explaining that he had seen the devil under the table. In September 2006, defendant climbed down from the roof and told Maria that he had heard voices telling him to jump off.
Ramon M., another cousin of defendant, testified that sometimes defendant would not respond when spoken to. Defendant told Ramon that he had seen people in his room whom Ramon had not seen there. Once, when defendant was sitting in the backseat of a car, he hit a friend of Ramon’s for no apparent reason. Another time, defendant claimed to have seen someone in a parked car who had tried to hit him, but the car was unoccupied. Defendant also had a habit of picking up objects from the floor and smelling or eating them.
Sanity Phase
In the sanity phase, defendant called an additional witness regarding his mental state. Erika T. testified that she had dated defendant from 2001 to 2004 when they were students at a local high school. She testified that he had acted unpredictably, and he sometimes had forgotten that they were dating. Once she saw him eating objects from a garbage can. Another time, she saw him behind their school yelling obscenities at a tree. When she later asked him about the incident, he denied that he had been talking to a tree.
On cross-examination, Erika confirmed that defendant had been using crystal methamphetamine during that period. She also confirmed that he once had broken into her house while she was sleeping.
DISCUSSION
I
Defendant contends the trial court erred by denying his challenges for cause to three potential jurors whom he claimed could not be impartial. He claims the error was prejudicial because he exhausted his peremptory challenges and the court refused to grant him any additional peremptory challenges. We disagree.
Background
The three prospective jurors at issue were Mr. H., Ms. R., and Ms. S. We summarize their testimony on voir dire and the trial court’s stated reasons for denying defendant’s requests to excuse each of them for cause.
Mr. H.
In response to questioning by the trial court, Mr. H. stated that he had dealt with law enforcement personnel in the past. He said: “I do, like I said, give them a little higher standard. Whether I can be fair and impartial, I would say I should be able to, but --.” The court asked Mr. H. whether he could evaluate the credibility of law enforcement witnesses based on the evidence at trial. Mr. H. replied, “Yes, I can.”
When asked by defense counsel whether he would “identify with” police officers who might testify for the prosecution, Mr. H. replied, “With my past experience, yes, a little bit, yeah.” Asked if he would favor those officers, Mr. H. replied, “Yeah, just, you know, as they come in, and, yeah.” If a member of Mr. H.’s family were on trial, he probably would be concerned that a juror with feelings similar to his own might not be fair. In light of that, Mr. H. would feel better if he were not sitting as a juror. However, when asked by the prosecutor whether he could abide by the judge’s instructions to treat law enforcement witnesses the same as other witnesses, Mr. H. said, “Yes.”
Outside the presence of the jury, defense counsel challenged Mr. H. for cause. In denying the motion, the trial court contrasted Mr. H with another prospective juror, Mr. R., who had been excused by stipulation of the parties. The court stated: “Actually I listened very carefully to Mr. [H.] because he is an individual who has -- he favors law enforcement in a general concept. He says he has friends that are law enforcement officers, he has relationships with them. That certainly if [those particular officers] would testify, he would have a bias, which would interfere with his ability to be fair. [¶] To the contrast of Mr. [R.], who openly discussed in a very affirmative manner his favoritism of law enforcement and his belief that law enforcement would be believable just merely by the fact of their occupation. I do not find the same as to Mr. [H.]. He appeared very thoughtful and deliberate in his consideration of his -- I will term it in quote -- bias, but he was also very thoughtful in considering whether it would impact him in making a decision on credibility with regard to just the mere fact of their occupation. [¶] My recollection of his statements to both counsel was that he would follow my instructions, would evaluate all witnesses by the same standard. And while he has a tendency to believe [that] law enforcement[] has certain training, education and experience, which makes them perhaps more credible[, ] that he would follow my instructions nonetheless. I’m considering not only his tone while he testified but his apparent level of confidence in the responses he gave and his demeanor in answering the questions. And I do not find that he is subject to a cause challenge based on the totality of his answers.”
Defense counsel later exercised a peremptory challenge to remove Mr. H.
Ms. R.
Ms. R. told the court that she had a degree in psychology and was interested in a career in forensic psychology. She said that, based on her study and research on the insanity defense, she believed it frequently had been misused. Thus she had a “really huge bias” as to whether insanity was a “legitimate legal defense.” While she would “obviously listen to professionals on the stand and try to keep an open mind, ” she knew it “would be difficult for” her. Ms. R. believed that she could put aside her personal feelings and follow the law. She said that she could evaluate the credibility of all witnesses under the same standard.
Upon questioning by defense counsel, Ms. R. stated that she believed the insanity defense discredits the mental health profession because the vast majority of people with mental illness are not legally insane. She said she was “very concerned” that she might not be able to be fair to the defense because of her views. But when the trial court recited a part of the insanity jury instruction, Ms. R. replied that she could follow the instruction.
Upon questioning by the prosecutor, Ms. R. agreed that some people can be legally insane. When the prosecutor cited the case of a woman who had thrown her three children off of a pier in San Francisco and claimed that God had instructed her to do so, Ms. R. agreed that such facts raised the possibility of insanity. She agreed that she would be “comfortable” applying the insanity law to the facts of this case.
At a sidebar conference, defense counsel challenged Ms. R. for cause, and the trial court denied the challenge. Counsel then exercised a peremptory challenge to Ms. R.
Thereafter, the trial court explained the reasons for its ruling by comparing Ms. R.’s responses to those of another prospective juror, Dr. S., who stated that he did not think he could follow the insanity instructions because of his opinions of mental health experts: “Dr. [S.] demonstrated, in my opinion, a bias which was personally held because of personal experiences and was much, much stronger than hers. Hers was an educational bias that she also indicated on several occasions that while she recognized she held that bias, it was something she could address; that she could still apply the standards that I gave her; that she would then still listen to what the doctors had to say, evaluate their testimony, and apply the standard that I gave her. [¶] I indicated to both counsel that I would have granted a challenge to the art doctor [sic] and nobody wanted to use one, which is fine. But I also indicated I thought there was a distinction between him and her, and I still find that to be the case.
Following the sidebar but before the on-record discussion, the prosecutor exercised a peremptory challenge to Dr. S.
Ms. S.
Ms. S. stated that she worked as a community service officer in Sacramento and that she planned to attend the police academy. She understood that law enforcement and civilian witnesses all had to be judged by the same standard, and she hoped that she could do so. Her boyfriend was a police officer and she had a lot of friends in law enforcement.
When asked by defense counsel whether she felt an allegiance or loyalty toward the prosecution, Ms. S. replied, “Not necessarily.” She added: “I personally feel that an officer’s testimony may be a little more credible because they are an impartial third party to the incident.” Ms. S. stated that she had testified in court on behalf of law enforcement and would not perjure herself just to help get a conviction. She gave an example: If a law enforcement officer testified that the sky is blue and another witness said that it is green, she would probably believe the officer because of his or her training, experience, and impartiality.
At a sidebar conference, defense counsel challenged Ms. S. for cause and the trial court denied the challenge. Counsel then used a peremptory challenge to excuse Ms. S.
The trial court later explained its reason for the denial of the challenge for cause as follows: “Although [Ms. S.] indicated what I would call an involvement with people in law enforcement, and even said she would have a tendency to believe a law enforcement officer over a civilian, she qualified the answer each time by stating the following: I would tend to believe them because of their training and experience. And in the other circumstances she said because they are unbiased. [¶] So essentially what she was doing, she was saying I have involvement with law enforcement people, and I would take those things that the law allows me to consider in determining whether somebody has an interest in the outcome or has additional factors which were appropriate to consider in evaluating their credibility in making a determination. [¶] So she was essentially using the jury instruction or those factors permitted by the jury instruction to come to the conclusion as to why law enforcement might, in some circumstances, be the person she would tend to favor. [¶] So it was a qualified answer and it was also taken in connection with the questions I asked her. I was satisfied it was not a cause challenge but one more appropriately addressed through use of a peremptory challenge.”
After exercising all 20 of his peremptory challenges, defendant requested additional peremptory challenges based on the trial court’s denial of his challenges to Mr. H., Ms. R., and Ms. S for cause. The trial court denied the request. The court stated that, although it had the authority to grant additional challenges, “it would be unwarranted under the circumstances.”
Analysis
“A party may challenge a prospective juror for actual bias, defined as a state of mind that would prevent that person from acting impartially and without prejudice to the substantial rights of any party. [Citation.] On review of a trial court’s ruling, if the prospective juror’s statements are equivocal or conflicting, that court’s determination of the person’s state of mind is binding. If there is no inconsistency, the reviewing court will uphold the court’s ruling if substantial evidence supports it. [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 488.) When a prospective juror expresses views about the defendant or the case that would suggest a bias, but the voir dire suggests that the person can put aside that bias, impartially determine the facts, and apply the law to reach a just verdict, the trial court can reasonably deduce that the person would do so. (See People v. Kipp (1998) 18 Cal.4th 349, 366; People v. Carter (1961) 56 Cal.2d 549, 573-574; United States v. Quintero-Barraza (9th Cir. 1995) 78 F.3d 1344, 1349-1350.)
Defendant contends Mr. H. and Ms. S. could not be impartial in light of their stated bias in favor of law enforcement. But as the trial court explained, both of these prospective jurors provided assurances that they could set aside their biases and evaluate all witnesses under the same standards. Regarding Mr. H., the court explained it had carefully observed his responses, tone, and demeanor during voir dire and found that he would be capable of setting aside any bias in favor of law enforcement while evaluating witness testimony. Regarding Ms. S., the court noted that she had explained her tendency to believe law enforcement officers by stating that she did not think they had a personal interest in the case, which is a permissible factor in judging the credibility of witness testimony.
Ms. S.’s tendency is not at all like the bias at issue in People v. Riggins (1910) 159 Cal. 113 (Riggins), a 100-year-old case on which defendant relies. In Riggins, a trial juror believed that the defendant was guilty of a prior murder even though a jury had duly acquitted him. (Id. at p. 119.) Upon a trial of the present case the juror would have considered the defendant’s perceived guilt and would have given it some weight in determining his guilt or innocence of the present charge. (Ibid.) The Supreme Court remarked: “The fact that [the juror] proposed to consider a belief formed wholly upon newspaper accounts, without any knowledge of the facts of that case, a belief persisted in notwithstanding an acquittal by a jury after hearing all the evidence from the lips of the witnesses, shows a considerable degree of prejudice; and the fact that he was still willing to say, in all sincerity, that he could and would lay aside this prejudice and act fairly and impartially in the case, shows the wisdom of the common-law rule that where bias appears, the juror’s opinion of his own fairness will not be considered. One of the striking instances of the frailty of human nature is the fact that a prejudiced person usually believes himself fair-minded and impartial. The guilt of the defendant of the [prior murder] was no part of the matter to be submitted upon the charge of assault with intent to murder [the present victim]. Upon the trial of the latter charge no evidence in regard to the former charge could be allowed. The prejudice clearly arose from facts extraneous to the case and it was not upon the matter to be submitted. The challenge should have been allowed.” (Id. at pp. 119-120.)
At the time of Riggins, “actual bias” was defined as “‘a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party.’” (Riggins, supra, 159 Cal. at p. 117, quoting former § 1073, repealed by Stats. 1988, ch. 1245, § 33, p. 4155, italics added.) Because the juror in Riggins was biased as to the Riggins defendant, the juror’s belief in his own fairness would not be considered. Here, in contrast, the prospective jurors’ tendencies to favor the opinions of law enforcement officers generally did not constitute opinions about this case or any party to this case. Nothing in Riggins suggests that the trial court’s consideration of the prospective jurors’ assurances of their own fairness was improper.
Defendant contends Ms. R.’s statements regarding her views on the insanity defense indicated that she could not be an impartial juror. Although Ms. R. expressed strong views on that general subject, when the trial court read her the jury instruction on insanity, she stated without hesitation that she could follow the law. When the prosecutor described the facts of a case in San Francisco, Ms. R. agreed that the insanity defense could apply to such a situation. Based on her responses, the trial court could reasonably conclude that Ms. R. could set aside her personal views on the insanity defense and render an impartial verdict. There was no error.
II
Defendant contends the prosecutor’s use of three of his first six peremptory challenges to remove three African-American prospective jurors established a prima facie case of racial discrimination in jury selection. He claims the trial court’s finding to the contrary violated his Fourteenth Amendment equal protection rights and requires reversal. We disagree.
Background
Defendant is a Hispanic male.
Defendant made a Wheeler-Batson motion after the prosecutor exercised six peremptory challenges. The trial court identified those prospective jurors as a white male (Mr. W.), a Samoan male (Mr. S.), an African-American female (Ms. P.), an Asian female (Ms. M-B.), a white female (Ms. D.), and another African-American female (Ms. B-N).
People v. Wheeler (1978) 22 Cal.3d 258, 276–277 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 97 [90 L.Ed.2d 69] (Batson).)
Claiming he was “not attempting to persuade the Court, ” defense counsel stated for the record his belief that the Samoan man, Mr. S., was a “black male adult, ” although “perhaps he has some Tongan or Samoan” ethnicity.
Defense counsel commented that Ms. B-N “was probably a prosecution-oriented juror at least the way I’d look at it. She had one case, where she hadn’t a reach [sic] verdict, but she appeared to be a manager of a -- and somebody that’s generally a favorable prosecution juror.”
The trial court noted that, at the time of the motion, there were three African-American women on the jury. Two of those women ultimately served as jurors. (Juror Nos. 2975916 & 2997389.) The third African-American woman, Ms L., was challenged by defense counsel during the final round of peremptory challenges.
The trial court tersely stated, “... I simply am not going to find the prima facie [case] at this time.”
Analysis
“Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity. [Citations.] When the defense raises such a challenge, these procedures apply: ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citations.]
“To make a prima facie showing of group bias, ‘the defendant must show that under the totality of the circumstances it is reasonable to infer discriminatory intent.’ [Citations.] When, as in this case, it is unclear whether the trial court used the recently disapproved ‘strong likelihood’ standard, rather than the correct ‘reasonable inference’ standard, ‘we review the record independently to determine whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis.’ [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 582-583 (Davis).)
Mr. S.
Defendant construes his trial counsel’s remarks to mean that Mr. S. “had some Samoan or Tongan ancestry mixed with his African-American ancestry.” (Italics added.) He speculates that “[b]oth defense counsel and the trial judge might have been right since Mr. S. could have been of mixed African-American and Samoan ancestry.”
The trial court, which heard, saw, and spoke with Mr. S., was in a far better position than this court to resolve the factual issue of Mr. S.’s ancestry. Although we now review the record independently to determine the legal issue of inference of discriminatory excusal (Davis, supra, 46 Cal.4th at pp. 582-583), we continue to review for substantial evidence the strictly factual question of the excused juror’s ancestry (see, e.g., People v. Jenkins (2000) 22 Cal.4th 900, 993). Here, the court and counsel both conversed with Mr. S., and nothing in the record suggests that counsel’s determination of Mr. S.’s ancestry was entitled to greater weight than that of the court. The court’s finding that Mr. S. was Samoan, as opposed to African-American, is supported by substantial evidence. (Ibid.)
Because the record contains substantial evidence that Mr. S was Samoan, we reject defendant’s argument that the prosecutor challenged three, as opposed to two, of the six African-Americans in the jury box. We now turn to those two.
Ms. P.
Ms. P. stated during voir dire that she believed her brother had been unfairly prosecuted for drug charges, and law enforcement had treated her mother unfairly in connection with a child endangerment incident. Based on those experiences, Ms. P. stated that she did not think she could evaluate the credibility of law enforcement officers in the same way as other witnesses.
In response to Ms. P., the trial court stated: “I appreciate your answers, thank you. [¶] And that’s the kind of answers we need honestly from people. We can’t get a fair jury, we have to have people who will be fair to both sides in this case, so thanks.”
Nothing in the present record supports an inference that the prosecutor excused Ms. P. on the prohibited discriminatory basis of her race. (Davis, supra, 46 Cal.4th at pp. 582-583.) Rather, as the Attorney General notes, “any reasonable prosecutor would have excused her in a heartbeat.”
Ms. B-N
Ms. B-N was a manager for the Department of Corrections and Rehabilitation. At one point, Ms. B-N indicated that she was retired. She had worked in the “procurement section” rather than at a penal institution. The job involved working with administration and some of the wardens. Ms. B-N also had family members who were correctional sergeants and lieutenants. This colloquy ensued:
“Q. [BY THE COURT] You have some friends or relatives who’ve had some involvement with law enforcement?
“A. [BY MS. B-N]: Yes.
“Q. Are these people close to you?
“A. Yes.
“Q. Were they treated fairly?
“A. Most of them, yes.
“Q. Without identifying exactly, are we talking about people in your immediate family?
“A. My nephew.”
The Attorney General construes this exchange to mean that Ms. B-N had “friends and relatives, including her nephew, who had run-ins with law enforcement.” Defendant replies that the court’s phrase, “involvement with law enforcement, ” refers not to “‘run-ins’ with law enforcement” but to Ms. B-N’s “friends[] and family members that worked for and in corrections.” We agree with the Attorney General.
The key question was, “Were they treated fairly?” The trial court had no evident reason to ask Ms. B-N whether her friends and family members in the corrections field had been “treated fairly.” The colloquy supports an inference that Ms. B-N believed that, unlike her other friends and relatives, her nephew had not been treated fairly by law enforcement. The court’s questioning of other jurors supports this interpretation.
Thus, juror No. 3062250, who was not excluded, indicated that a brother and other people had been arrested, but the juror had not formed any opinion that any of them had been mistreated by law enforcement or the court system. Juror No. 3059816, who was not excluded, had “at least a friend or friends” who had had DUI’s in the past, but nothing about their circumstances led the juror to believe that they had been treated unfairly. Juror No. 3014890, who was not excluded, had a couple of people who had been arrested “for drugs and DUI.” Based on what the juror had heard, the juror believed those people had been treated appropriately considering the circumstances.
Although the prosecutor treated these three jurors differently than Ms. B-N, the obvious reason was that only she knew someone whom she perceived had not been treated fairly by law enforcement. Defendant’s argument that the disparate treatment raises an inference of discrimination within the meaning of Miller-El v. Cockrell (2003) 537 U.S. 322 [154 L.Ed.2d 931] and Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] has no merit.
In sum, “although the prosecutor eventually challenged and had removed from the panel a total of two African-Americans, two more remained. We conclude the removal of two African-American jurors in these circumstances failed to raise a reasonable inference of racial discrimination. (See People v. Snow (1987) 44 Cal.3d 216, 225 [that the prosecutor accepted a jury containing minorities ‘may be an indication of the prosecutor’s good faith in exercising his peremptories, and may be an appropriate factor for the trial judge to consider in ruling on a Wheeler objection, [although] it is not a conclusive factor’].)” (People v. Gray (2005) 37 Cal.4th 168, 188.) There was no Wheeler-Batson error.
III
Defendant contends the trial court erred when it denied his request to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter. He argues that the instructions were warranted based on evidence of his mental illness, including his hearing of voices. We are not persuaded.
A trial court must instruct the jury on a lesser included offense whenever there is substantial evidence that the defendant is guilty of only the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).) In this context, substantial evidence is that which a reasonable jury could find persuasive. (People v. Halvorsen (2007) 42 Cal.4th 379, 414 (Halvorsen).) Instructions on lesser included offenses need not be given where there is no evidence that the crime was less than that charged. (Breverman, supra, at p. 154.)
Voluntary Manslaughter
At trial, defense counsel argued that a voluntary manslaughter instruction was warranted on the theory that, while defendant was visiting Kelly, “the argument and the discussion suddenly went south.” Defendant “exploded because he was unable to obtain what he wanted, which was resolution of her return to the relationship or to stop creating the problems he was having with seeing his child.” Counsel further argued the “evidence of defendant’s mental disabilities is sufficient to show he may have been operating under a heat of passion at [the] time.” Counsel was incorrect.
“Malice is presumptively absent when a defendant kills ‘upon a sudden quarrel or heat of passion’ (§ 192, subd. (a)), provided that provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1086 (Koontz).) While defendant’s conflict with Kelly may have proved stressful even to an “ordinarily reasonable person, ” no evidence suggested that it was so provocative that it would have caused such a person to act rashly and without deliberation, or from passion rather than judgment. (Ibid.) In his reply brief, defendant concedes that “objective provocation was not sufficiently shown.”
Defense counsel’s reliance on defendant’s mental disabilities was misplaced. Evidence of mental illness does not justify a heat of passion instruction because it “does not satisfy the objective, reasonable person requirement, which requires provocation by the victim. [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1253 (Steele).)
No evidence suggested that defendant killed in the actual but unreasonable belief that he was in imminent danger of death or great bodily injury. (Koontz, supra, 27 Cal.4th at p. 1086.) Because no evidence supported a voluntary manslaughter instruction, its refusal was not error. (Steele, supra, 27 Cal.4th at p. 1254; Breverman, supra, 19 Cal.4th at p. 154.)
Finally, to the extent that People v. Molina (1988) 202 Cal.App.3d 1168 suggests a voluntary manslaughter instruction was appropriate notwithstanding the lack of evidence of provocation or of unreasonable belief in the need for self-defense, we respectfully decline to follow it. This court has previously questioned Molina on another point. (People v. Bobo (1990) 229 Cal.App.3d 1417, 1436-1443.)
Involuntary Manslaughter
At trial, defense counsel requested that the trial court instruct the jury on involuntary manslaughter pursuant to CALCRIM No. 580, arguing that the defense had offered substantial evidence of “diminished actuality” to support such an instruction. He argued that the jury could conclude defendant “was operating under delusions or hallucinations at the time which could include voices or visual.” The jury could rely on defendant’s family history, his delusions and hallucinations before the crime, his hearing of voices while in jail following the crime, and his diagnosis of schizoaffective disorder after the event.
“An instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form the intent to kill. [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 884; see Halvorsen, supra, 42 Cal.4th at p. 414 [if evidence of mental illness or intoxication negates malice aforethought, the only supportable verdict is involuntary manslaughter or acquittal].)
Defendant contends the evidence of his mental illness, including a diagnosis of schizoaffective disorder and observations of his strange behavior, supported an instruction on involuntary manslaughter. However, none of this evidence addressed the issue whether defendant intended to kill Kelly and Sharon. Although defendant had reported to Dr. Sokolov that he had been hearing voices for two to three years asking him to kill himself and other people, there was no evidence that defendant had heard such voices on the night of the murder. Defendant made no mention of such voices when repeatedly asked by Detective Cvitanov why he had killed the victims. Instead, defendant said that he did not know what had prompted him to kill the two women, other than that he was angry at Kelly for breaking off their relationship and seeing other men.
Defendant disagrees, citing Dr. Sokolov’s testimony that defendant’s schizoaffective disorder included schizophrenia, a chronic mental illness characterized by symptoms including delusions, hallucinations, disorganized thoughts, and disorganized behavior. But Dr. Sokolov did not testify that any or all of these symptoms was operative at all times. Without additional evidence, jurors could only speculate whether any particular symptom, such as the hearing of voices, was operative at or around the time of the murders. Such speculation does not rise to the level of evidence that a reasonable jury could find persuasive. (Halvorsen, supra, 42 Cal.4th at p. 414.)
Contrary to defendant’s apparent contention, his statement to Detective Cvitanov that, when he went to Kelly’s house, he “already had the idea in [his] mind” to “hurt[]” her does not tend to disprove his later having formed a more culpable mental state, i.e., intent to kill her (express malice), as a result of their ensuing confrontation. If anything, his statement that he “already” had the idea to hurt her could connote his understanding that he later formed the intent to kill her. The refusal to instruct on involuntary manslaughter was not error. (Steele, supra, 27 Cal.4th at p. 1254; Breverman, supra, 19 Cal.4th at p. 154.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect that the sentencing hearing took place on October 24, 2008, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, Acting P. J., BUTZ, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.