Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB048445. Jon D. Ferguson, Judge.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Following a jury trial, defendant Eric Brendan Carle was convicted of second degree murder (Pen. Code, § 187, subd. (a)) and the jury found true the allegations that defendant personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (c) & (d)), and that he personally used a firearm (§ 12022.53, subd. (b)). Defendant was sentenced to a total term of 40 years to life in prison. He appeals, contending the verdict was void because CALJIC 8.50, distinguishing murder from manslaughter, was ambiguous both as written and when combined with the unanimity instructions. We reject defendant’s contention and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
In his opening brief, defendant claims the trial court erred in imposing and staying the firearm enhancements. In light of the recent decision in People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130, defendant now concedes that there was no error.
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
Defendant and Chris Hall had known each other since childhood. A week before his death, Hall went to defendant’s house and threatened him. Hall wanted defendant to be his “back-up” because Hall thought he might be getting into a fight. Defendant refused and asked Hall to leave. Hall in turn asked defendant’s girlfriend, Chandra Collins, to leave the mobilehome so that he could hurt defendant. Collins refused to leave.
On February 23, 2005, during the early evening, defendant, Hall, and Ruben Perez were at defendant’s house drinking and using methamphetamine. They went to a bar to celebrate Hall’s birthday. Both Hall and defendant appeared to be intoxicated upon leaving the bar. On the way back to defendant’s home, defendant and Hall began to argue. Perez testified that it is possible either defendant or Hall told the other that he was going to “kick his ass.” Collins was at the house when they returned. Defendant and Hall continued to argue on and off at defendant’s home for about half an hour. Perez and Collins did not think the argument was out of the ordinary, as the men frequently argued.
Eventually, defendant got up from the couch and began a physical scuffle with Hall. Collins stood up and tried to get between the two men. Defendant and Hall briefly calmed down. Hall pushed defendant to the floor near the refrigerator, causing defendant to “land on his butt.” Collins went to help defendant off the floor, and Perez got in front of Hall and told him to “back off.”
Defendant had a history of back problems stemming from his time in the military and appeared to be in pain. He went to the bedroom without saying anything, while Collins tried to calm Hall down.
A few minutes later, defendant returned, lifted his arm and shot Hall from about 20 feet away. Collins did not see the shooting, but Perez did. Defendant went back to the bedroom without saying anything.
After the shooting, Perez drove to a nearby Arco station to call the police, and Collins went with him.
About 8:30 p.m., San Bernardino County Sheriff’s Deputies John Scalise and Josh Ellsworth responded to a dispatch call regarding a shooting. As Deputy Scalise neared the house, he saw defendant waving his hands. Defendant asked Deputy Scalise for help and told the deputy he had shot his friend. Defendant did not appear intoxicated.
After being placed under arrest, defendant asked Deputy Ellsworth if Hall was going to be all right. Defendant stated that he had been fighting with Hall and admitted grabbing his (defendant’s) gun and shooting the victim. Once at the station, defendant said that “he did what he had to do to protect his house and himself.”
The parties stipulated that at the time of the incident, both defendant and Hall were under the influence of alcohol and methamphetamine.
Hall died within hours from a gunshot wound to the abdomen.
B. Defense Evidence
Defendant was injured in the military service and had back surgery before he received a medical discharge. In February 2004, eight years later, defendant again underwent back surgery but reinjured his back about six months prior to the incident.
A week before the incident, Hall arrived at defendant’s home around dusk, extremely intoxicated, and asked defendant to go with him to confront some people. Defendant refused, and Hall began yelling at cars driving by. When defendant urged Hall to go inside the mobilehome to calm down, Hall became aggressive toward defendant. Hall flipped a coffee table over and told defendant, “I don’t care if I do 25 to life. I’ll show you.”
Defendant testified that, around the time of the incident, Hall’s “typical attitude” was “always agitated.” Agitation is common among people who use methamphetamine. At times, defendant and Hall “got along real great,” but Hall was a “time bomb.” Defendant feared Hall, who was heavily muscled from regular weight lifting. Hall had a prior history of violence towards defendant, giving defendant a bloody nose and lip during an argument the previous summer.
On February 23, 2005, Hall came to defendant’s mobilehome in the afternoon, appearing agitated. While Hall was there, Hall and Perez smoked methamphetamine, and defendant had “two hits.” A few hours later, the three went to a bar for Hall’s birthday. They drove back to defendant’s home around 6:00 p.m. On the way, defendant and Hall argued about religion. Hall told defendant that he was going to “kick [defendant’s] ass when [they] got home.” Hall was angry that defendant had failed to back him up the week before.
Approximately 15 minutes after they arrived at the mobilehome, defendant asked Hall to leave. Hall asked Perez to leave with him, but Perez refused to do so, and Hall became agitated again. Defendant gave Hall a cellular phone and told Hall to call his mother to come get him, but Hall refused, saying “Fuck that. I’m not leaving until I drink all your beer.” Defendant asked Hall to “[j]ust mellow out” and Hall did so for several minutes before once more becoming belligerent.
Defendant stood in front of the refrigerator and told Hall he wasn’t going to give him more beer. Hall asked how defendant was going to make him leave. Defendant threatened to call the police. Hall said that if defendant called the police, it would result in a parole violation for Hall and likely a new criminal charge. Hall then grabbed defendant and told him, “‘I’m going to break your back and beat you to a half inch of your life.’” Hall threw defendant to the ground, causing defendant severe pain. Defendant testified it was “like being struck by lightning inside your back, your lower back,” from his pre-existing back injury. Defendant tried to get up but could not because Hall was kicking him. Hall pulled defendant up by his shirt and then pushed him down again.
Collins got in front of Hall and said, “Damn it, Chris. You hurt his back.” Defendant got to his feet but could not stand up straight. Defendant testified that he walked, “hunched over,” to the bathroom. Going inside, he locked the door and used the door jamb to pull himself straight.
At that point, defendant said he heard Collins ask Hall to leave. Hall told Collins he would not leave until he drank all their beer, and said “Fuck you. Fuck your home. I’m not afraid to fuck you up like I did him.”
Defendant testified that he then went to his bedroom and retrieved his handgun. Defendant returned to where Hall was, and when defendant was within five or six feet of Hall, he warned Hall not to harm Collins. Defendant raised the gun and Hall nonverbally acknowledged its presence. When defendant lowered his weapon, Hall lunged and struck defendant, who then fired once from the hip. Defendant said his intention was not to kill Hall, but rather to stop him from attacking again.
After Hall fell to the floor, defendant set the handgun on a table and tried to find his cellular phone to call 911. He could not find the phone, so he asked a neighbor, Sandra Rodriguez, to call 911. Defendant was “distraught” and “crying.”
III. DISCUSSION
Defendant argues that evidence was presented of three theories for the negation of the malice aforethought element necessary for a murder conviction: (1) heat of passion; (2) unreasonable self-defense; and (3) unreasonable defense of another person. He further contends that during trial, he laid out the intensity of his pain, shock, and fear response to being pushed down by Hall, as well as evidence of Hall’s unstable nature, physically imposing stature, and the threats Hall made both to defendant and to defendant’s girlfriend the night of the killing.
The jury was instructed with CALJIC No. 8.50. as follows:
“The distinction between murder and manslaughter is that murder requires malice while manslaughter does not.
“When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, or in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent.
“To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.” (Italics and underline added.)
Defendant contends the wording of the above emphasized portion of CALJIC No. 8.50 “made it reasonably likely that jurors believed that if some of them found that heat of passion was disproven but unreasonable defense was not, while others found that unreasonable defense was disproven but heat of passion was not, then the People had proven beyond a reasonable doubt that the offense was murder.” Citing People v. Russo (2001) 25 Cal.4th 1124, 1132-1133, defendant notes, “The law does not require that jurors unanimously agree as to which theory of the case leads them to a verdict of guilty; but they are required to be unanimous as to what crime a defendant committed and what act constituted commission of the crime.” He concedes that malice-negating theories are alternate means of reaching a verdict, much like theories of a case, and thus similarly do not require jury unanimity.
Defendant asserts there was “a reasonable likelihood” that the unanimity instructions, in particular, CALJIC No. 8.72, “spilled over” into the jury’s deliberations regarding the application of the three malice-negating theories presented in this case “because there was no instruction or other countervailing force to let jurors know when unanimity was not required.” CALJIC No. 8.72 was provided to the jury as follows: “If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of that doubt and find it to be manslaughter rather than murder.” Defendant claims that “[b]ecause this instruction told jurors that they had to unanimously agree as to whether there was a reasonable doubt whether the offense was murder or manslaughter, it is reasonably likely that jurors inferred that they were also required to be unanimous when they decided which theory (heat of passion or unreasonable defense) negated malice—that is, which theory of malice-negation gave rise to reasonable doubt that the crime was murder.”
Thus, defendant argues CALJIC No. 8.50 lowered the burden of proof of the People as to the malice-negating theories, denying him his federal and state right to due process of law. Moreover, according to defendant, there was nothing in the arguments of counsel that obviated this problem. While defendant concedes that both prosecution and defense attorneys addressed each of the three malice-negating theories individually and made separate arguments on their application to the case, he argues this attention to the theories was unavailing because neither counsel told the jury that it need not be unanimous as to which of those theories was valid under the facts of this case.
Defendant further contends the wording of CALJIC No. 8.50 “led some individual jurors to believe that they should vote to convict [defendant] of murder if the People had disproven to them, as individuals, that either heat of passion or unreasonable defense existed.”
Finally, defendant claims the risk of juror confusion “might have been reduced” if Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 570 and 571, had been given instead of CALJIC No. 8.50. He contends these instructions “encourage deliberation on the two forms of malice-negation separately” and would likely have caused the jurors to decide “at separate times” whether the malice-negation theories of heat of passion and unreasonable defense applied.
Defendant cites to the last paragraph of CALCRIM No. 570, which states: “The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.”
Defendant cites to the last paragraph of CALCRIM No. 571, which states: “The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in (imperfect self-defense / [or] imperfect defense of another.) If the People have not met this burden, you must find the defendant not guilty of murder.”
In response, the People look at the challenged language in the context of the instruction as a whole, in the context of the “‘entire charge of the court’” (see post, People v. Young (2005) 34 Cal.4th 1149, 1202), and in the context of its presentation at the trial court, and argue there was no error.
As we will discuss in detail below, we find the People’s analysis to be correct.
A. Standard of Review
“In reviewing a challenge to an instruction, we consider the instructions as a whole, in light of one another, and do not single out a word or phrase, and ‘“assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.”’ [Citation.]” (People v. Holmes (2007) 153 Cal.App.4th 539, 545-546.) “An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]” (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) The arguments of counsel must also be considered in assessing the probable impact of the instruction on the jury. (People v. Young, supra, 34 Cal.4th at p. 1202.)
B. Separation of Theories
Defendant concedes the jury need not unanimously agree regarding which mental state negates malice and therefore prevents a murder conviction. “‘It is well settled that, to properly convict, a jury must unanimously agree that the defendant is guilty of the statutory offense of first degree murder beyond a reasonable doubt, but it need not decide which of several proffered theories of first degree murder liability governs the case.’ [Citation.] Thus, the jury need not decide unanimously whether a defendant was a direct perpetrator or an aider and abettor, so long as it is unanimous that he was one or the other. [Citations.] Nor is such jury unanimity required as a matter of federal due process. [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 801-802.) The law does not require unanimous agreement on a theory of guilt of murder, and we find no reason why the law should require unanimous agreement on a theory of malice negation.
In People v. Brown (1995) 35 Cal.App.4th 708, 715 (Brown), the courtheld that juror unanimity was not required as to whether express or implied malice existed in finding Brown guilty of second degree murder. The Brown court applied the analysis of Schad v. Arizona (1991) 501 U.S. 624 (Schad) in making this determination. (Brown, supra, at pp. 712-716.) Schad held that a jury need not unanimously agree which theory of first degree murder applied when the verdict could have been based either on malice or on felony murder. “Writing for the plurality [in Schad] Justice Souter explained that due process principles limit ‘a State’s capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant’s conviction without jury agreement as to which course or state actually occurred.’ [Citation.] However, the plurality refused to adopt any single test for determining when that limit has been exceeded. Instead, the plurality decided, ‘[O]ur sense of appropriate specificity [in defining offenses] is a distillate of the concept of due process with its demands for fundamental fairness, . . . and for the rationality that is an essential component of that fairness.’ [Citation.]” (Brown, supra, at pp. 712-713.)
Moreover, the general principle that juries need not agree on the particular mental state possessed by the defendant is well established and widely recognized. “[T]he rule makes good sense too. While a few states have adopted different approaches, ‘[T]he complexity of the law and the complexity of criminal conduct make any other position so potentially instructionally difficult, and complicated, and so potentially confusing to jurors that any other rule is, as a practical matter, unacceptable. [Citations.]’ [Citations.]” (Brown, supra, 35 Cal.App.4th at p. 714.)
Thus, there is no requirement for unanimity on the theory of malice negation.
C. Challenged Portion of CALJIC No. 8.50
Notwithstanding the above, defendant argues CALJIC No. 8.50 was ambiguous because it “stated the required jury finding in the disjunctive.” He contends: “[J]urors could have believed that the People had carried their burden if they had proven either ‘that the act which caused the death was not done in the heat of passion or upon sudden quarrel or [that the act was not done] in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury,’ (CALJIC [No.] 8.50, emphasis added.)” In addition, defendant claims CALJIC 8.50 did not inform the jurors there was no need to unanimously agree on the theory of malice negation in order to find the People had failed to disprove the existence of some form of malice negation.
We find defendant’s analysis to be flawed. While defendant urges an “either/or” analysis, we do not find support for this contention. If anything, the language leans closer to a “neither/nor” interpretation. This portion of the instruction is logically broken down as follows: (1) the People have the burden of proving each of the elements of murder beyond a reasonable doubt; (2) the People have the burden of proving beyond a reasonable doubt that the act which caused the death was not done in the heat of passion; (3) the People have the burden of proving beyond a reasonable doubt that the act which caused the death was not done upon a sudden quarrel; and (4) the People have the burden of proving beyond a reasonable doubt that the act which caused the death was not done in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury. (See CALJIC No. 8.50.)
Absent the word “either,” which defendant conveniently adds to the instruction for his argument, we are not persuaded there is a reasonable likelihood that a juror would interpret this instruction to imply that the jury needed to unanimously agree on the malice-negating theory to support a manslaughter conviction. If anything, the language in CALJIC No. 8.50, particularly when combined with the unanimity instructions, requires that the jury unanimously agree that the People prove beyond a reasonable doubt that the malice-negating theories did not apply. As defendant correctly notes, “where there is evidence of heat of passion and unreasonable defense, the federal Constitution requires that the prosecution prove beyond a reasonable doubt that both heat of passion and unreasonable defense are absent. (See People v. Breverman (1998) 19 Cal.4th 142, 190 (dis. opn. of Kennard, J.) . . . .)” CALJIC No. 8.50 correctly instructs the jury on this point.
As a lesser point, defendant argues the wording of CALJIC 8.50 led some individual jurors to believe they should vote to convict defendant of murder if the People had disproved to them, as individuals, that either heat of passion or unreasonable defense existed. We are not concerned with whether any individual juror may have been confused by CALJIC No. 8.50. “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” (Boyde v. California (1990) 494 U.S. 370, 380-381.) Determining whether the jury was misled under a reasonable likelihood test “better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical ‘reasonable’ juror could or might have interpreted the instruction.” (Ibid.)
Thus, we do not find any ambiguity in the challenged language of CALJIC No. 8.50. We now consider whether there is any ambiguity looking to the instruction as a whole.
D. CALJIC No. 8.50
CALJIC No. 8.50 correctly outlines the applicable law. The first two paragraphs of CALJIC No. 8.50 properly instruct the jury on the differences between murder and manslaughter. The first paragraph correctly states the distinction between murder and manslaughter—murder requires malice, while manslaughter does not. (People v. Rios (2000) 23 Cal.4th 450, 460.) The second paragraph correctly states that when the act causing death is done in the heat of passion, upon a sudden quarrel, or in the actual but unreasonable belief in the necessity to defend against imminent peril to life, the offense is manslaughter. (Ibid.) The second paragraph instructs the jury that where any of those theories is established, appellant is guilty of manslaughter, not murder. (See Id. at p. 462.) When combined with the third paragraph of CALJIC No. 8.50 relating to the burden of proof, the second paragraph emphasizes the burden upon the People to prove beyond a reasonable doubt that none of the malice-negating theories was present. (People v. Rios, supra, at pp. 460-463.) The use of the disjunctive in the third paragraph does not lean to the “either/or” distinction that defendant is concerned with, but rather is best read as ensuring that the jury understands that it needs to find all of the malice-negating theories to be false in order to find defendant guilty.
When CALJIC No. 8.50 is read as a whole, we conclude there is no ambiguity that if the act causing death is done “in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, [or] in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury,” the offense is manslaughter, not murder. (CALJIC No. 8.50, italics added.) Having reached such conclusion, we next consider CALJIC No. 8.50 in combination with the entirety of the charge to the court.
E. Jury Instructions
The jury was instructed to interpret the charge to it “as a whole and each [instruction] in light of all the others.” It was given the charge that “[a] defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.” The correct instructions regarding the determination of the crime were given, and the jury was instructed that, if it was not satisfied defendant was guilty of first degree murder, it could still convict defendant either of the lesser crime of second degree murder or the lesser crime of voluntary manslaughter. There is no implication from this portion of the charge that the jury must default to the higher crime of second degree murder instead of the lesser crime of manslaughter if it was unable to agree as to any specific theory of malice negation. Nor is there any reason to infer a need for unanimous agreement on the malice-negating theory implied.
The jury was properly instructed that second degree murder occurs when the evidence “is insufficient to prove deliberation and premeditation,” and the jury was told that defendant was accused of voluntary manslaughter as well as murder. This instruction further emphasized there were other options than simply falling back on a second degree murder conviction if the jury was uncertain as to whether or not the crime constituted first degree murder, the charge pushed for by the People.
The trial court instructed the jury that “[t]he crime of manslaughter is the unlawful killing of a human being without malice aforethought,” and that “[t]he distinction between murder and manslaughter is that murder require[s] malice while manslaughter does not.” The court defined express and implied malice and instructed the jury, “[t]here is no malice aforethought if the killing occurred upon . . . a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.” The court added that the principle of unreasonable defense “applies equally to a person who kills in purported self-defense or purported defense of anther person.” The court described the requirements of the malice-negating theories—heat of passion, unreasonable self-defense, and unreasonable defense of another.
Looking at the instructions relating specifically to the elements of the offense, as well as the malice-negating theories, we conclude the jury was properly instructed on the applicable law.
Nonetheless, defendant contends that CALJIC No. 8.50, when combined with other jury instructions concerning unanimity, led jurors to believe they had to be unanimous as to which theory of malice negation was not disproved in order to acquit defendant of murder and convict him of voluntary manslaughter. We disagree.
The jury was instructed that it only had to be unanimous as to guilt and the level of culpability. No instruction, including CALJIC No. 8.50, instructed or implied to the jury that it had to unanimously agree on which malice-negating theory applied to find defendant guilty of manslaughter. There is no language in CALJIC No. 8.50 that would combine with the unanimity instructions to confuse the jury as to what constitutes manslaughter.
Moreover, there was no evidence from the trial record that the jury found this instruction confusing. There were no questions from the jury about the challenged instruction or any other instruction. Additionally, defense counsel neither objected to the trial court giving CALJIC No. 8.50 nor argued that the instruction was ambiguous or needed clarification. From these facts, it appears that “‘“the potential for [confusion] argued now was not apparent”’” in the trial court. (People v. Young, supra, 34 Cal.4th at p. 1203.)
The jury was instructed it “must agree unanimously not only as to whether the defendant is guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of murder of the first degree or murder of the second degree or voluntary manslaughter.” (CALJIC No. 8.74) The jury was instructed that if it had a reasonable doubt about the degree of culpability, it was to give defendant the benefit of the doubt and find the lower charge to be true. The jurors were told they had to find that defendant had the requisite specific intent to commit the crime and that there was no other rational conclusion before they could find the defendant guilty of murder or any lesser included offense. (CALJIC No. 2.02) They were instructed that where the evidence “permits two reasonable interpretations,” one which points to the existence of specific intent and the other which does not, they must adopt the interpretation pointing to the absence of specific intent. (CALJIC No. 2.02) Additionally, if one interpretation of the evidence appeared reasonable and the other unreasonable, the jury was instructed it “must accept the reasonable interpretation and reject the unreasonable.” (CALJIC No. 2.02)
When all of the above instructions are read as a whole with CALJIC No. 8.50, we do not find any grounds, absent defendant’s added word “either,” to find there was a reasonable likelihood of the jury misapplying the instructions. Rather, it is apparent the jury was properly instructed and defendant received a fair trial. The jury knew to look at all of the instructions and had detailed directions on when unanimity was required. The jury was told to give the defendant the benefit of the doubt when it was uncertain on the factors involved in culpability, and it was instructed to determine and rely on the reasonable interpretations of the facts.
We conclude that the jury was appropriately instructed and it is not reasonably likely from the whole charge to the jury that the jurors were misled in the manner defendant asserts.
F. Closing Arguments
Both defendant and the People went into detail regarding the malice-negating theories during their closing arguments. Moreover, defense counsel made it clear in closing argument that the jury could reach a manslaughter verdict “two ways.” “The imperfect defense is the first one. . . . Secondly, we have heat of passion, the emotion.” Counsel stated explicitly that the jury could find defendant guilty of manslaughter so long as it found that defendant acted under either malice-negating theory. Nothing during arguments by either counsel ever suggested the jury had to unanimously agree which malice-negating theory applied. The People set forth their case, and defendant set forth and explained to the jury what he considered to be the important instructions. After a careful review of the closing arguments, we find nothing that would support defendant’s contention that the jury was misled by the instructions provided.
G. CALCRIM Nos. 570 and 571
Notwithstanding the above, defendant contends that, had CALCRIM Nos. 570 and CALCRIM 571 (which discuss heat of passion and unreasonable defense separately) been given in place of CALJIC No. 8.50, the likelihood of misunderstanding by the jurors would have been reduced. We disagree.
CALCRIM Nos. 570 and 571 relate to the applicability of the heat of passion defense and imperfect self-defense, respectively. The portion defendant relies on as a clarifying remedy to the alleged ambiguity merely restates the burden of proof rule in CALJIC No. 8.50. There is no measurable difference in the instructive value provided by the CALCRIM versus the CALJIC instructions.
We conclude that defendant’s reading of the language in CALJIC No. 8.50 is not reasonable. There is no reason to believe the jury was misled by this instruction, and thus, there was no violation of any of defendant’s substantive rights.
IV. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER J., MILLER J.