Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. 19507
Lambden, J.
This is an appeal and cross-appeal from defendant William Corpuz’s conviction for the second degree murder of his spouse, Maria Corpuz. The People appeal from defendant’s conviction, arguing the trial court prejudicially erred when, pursuant to Penal Code section 1181, subdivision (6), it modified the verdict from the jury’s finding of guilt for first degree murder to one of guilt for second murder.
For the sake of clarity, we use Maria Corpuz’s first name throughout. No disrespect is intended.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant cross-appeals, asserting his conviction should be reversed for a number of reasons. He argues the trial court committed prejudicial errors by admitting his police interviews and evidence of his prior acts of domestic violence against Maria; ordering him to submit to a mental examination by a prosecution expert in order to present his own expert testimony; instructing the jury regarding, and responding to prosecutorial misconduct in summarizing, the law of voluntary manslaughter; responding to a jury note about contradictions in defendant’s statements to police; and denying defendant’s motion for a new trial based on juror misconduct. He also makes certain claims that are relevant only if we determine the People’s appeal has merit.
We affirm the judgment in its entirety.
BACKGROUND
In April 2005, defendant was charged by information in San Francisco Superior Court with one count of murder of Maria in violation of section 187, with an enhancement allegation for personal use of a deadly weapon, a knife, in violation of section 12022, subdivision (b)(1). A trial followed. We summarize certain evidence in this section, and elaborate further on the procedural and factual background in the discussion section that follows.
At trial, evidence was introduced that defendant and Maria were married and, as of September 2004, and had two children, a 12-year-old boy and a girl who was almost two years old.
According to the prosecution’s opening statement, defendant was found guilty of misdemeanor assault of Maria in 2003. Evidence was introduced of a 911 call by Maria on September 12, 2003, and her statements to police that day and a few days later. Maria reported that she and defendant had argued over bills, resulting in defendant becoming angry, grabbing her by the shoulders and throwing her face against the headboard of their bed, then getting on top of her and choking her. She also said the marriage was deteriorating recently and she wanted to separate from defendant. Police observed she had red marks on her shoulders, slight redness on her throat, a scraped calf, and a small cut on her lip.
Defendant was placed on probation and required to attend weekly group domestic violence counseling sessions. He told his probation officer he did not have any dangerous weapons at home but, according to his son, kept a gun in the house. According to the testimony of a domestic violence counselor, defendant was making solid progress in learning how to manage his anger via regular participation in group sessions over about 39 weeks, until the last two or three weeks when it seemed to begin to fall apart. In the last two or three months, he began talking about arguing with Maria over their children, and said Maria would sometimes tell him that he was not the biological father of the children.
Defendant’s son testified at trial that his father was concerned that he was not the father of defendant’s daughter, thought Maria was cheating on him, and threatened to kill himself in some arguments with Maria, which occurred once a month about money; he also recalled that his mother threatened to leave defendant.
Defendant’s co-workers testified that they noticed he seemed sad at work, which was not his usual demeanor. One testified that defendant said Maria wanted to divorce, but he was opposed to it.
Defendant’s probation officer testified that defendant told him on September 20, 2004, four days before the incident, that he thought Maria was using him for support and that she refused to involve him in decisions about their children. Defendant said Maria had left their daughter in the Philippines with relatives against his wishes, and defendant expressed doubts that he was the father of his son.
Defendant’s domestic violence counselor testified that a few days before the murder, on September 20, 2004, defendant attended a group counseling session. Defendant was behaving differently, mumbling his words and appearing disjointed in his thoughts. He said Maria was trying to take his daughter from him, and that during fights she told him that he was not their son’s biological father. Defendant was encouraged in the group counseling session to “stay away from the fighting” with Maria.
Defendant’s Surrender to Police
On September 24, 2004, defendant walked up to a police department window in San Francisco’s Hall of Justice and told an officer that he wanted to surrender himself for killing his wife, and that his son was at school and needed “protection.”
Police dispatched to defendant’s residence found the dead body of Maria lying on a bedroom floor under some blankets, her face covered with a cloth. Defendant was subsequently arrested.
The body of Maria had a few small abrasions on her torso, a small cut on her face, multiple, nonfatal wounds on her arms, and some deep cuts on the fingers of both hands, most likely caused by a knife, consistent with defensive wounds. The cause of death was a very deep cut across her neck that cut her jugular veins on both sides and severed her left jugular veins, left carotid artery, and trachea, causing her to die in a matter of seconds. Her type of neck wound suggested more than one swipe, such as a sawing motion.
The bedroom did not show signs of struggle. There was a chicken defrosting in the kitchen, and a large utility knife and a large bayonet-type knife on a kitchen counter.
Police examined the car defendant drove to the Hall of Justice. They found a duffel bag containing a folding knife with what later tests indicated was Maria’s blood on the blade, as well as a.22-caliber rifle with what appeared to be a live round chambered and an empty magazine. Police also found a gun case, which contained defendant’s wallet, $2,750 in cash, an expired passport, 108 rounds of.22-caliber ammunition, and boxes of various kinds of ammunition, and miscellaneous other items.
Defendant’s Police Interviews
Police Inspectors Michael Mahoney and John Cleary interviewed defendant after he surrendered. The interviews occurred on the day and the day after he surrendered, September 24 and 25, 2004, respectively. Videotapes of these interviews were played for the jury and transcripts were also provided, all of which have been reviewed by this court as well. In the course of the interviews, defendant indicated he was 31 years old, and had married Maria when he was 17 and she was 18 years old.
September 24, 2004 Interview
In his first interview, on September 24, 2004, defendant readily admitted that he killed his wife. He stated that “[w]e just watched some TV and, uh, suddenly, I killed my wife.” He cut her throat with a small knife that was in his car. They were watching television in their bedroom, and a show was on that was about chickens and ducks. His wife stood up and went by the window. Laughing, she called him “lazy, ” a “chicken, ” and said he had “no balls.” When asked what led up to the killing, he stated, “I don’t know, it just happened, ” and denied the two had argued. He said, “Then suddenly she laugh and I can’t take it....” He cut her neck, she fell, and he said, “forgive me, I love you.” Maria fell to the ground; there was blood everywhere, and he could tell that she was dead. He drove to the Hall of Justice to surrender to police. He said, “I need protection from myself because I killed her.”
Defendant discussed the events that occurred earlier that morning. He woke up around 4:00 a.m. and lay in bed for a few hours. Around 6:00 a.m., he called in sick to work at the Jewish Home, where he was a dishwasher, because he was tired, felt stressed, and his back hurt. Asked if he took any medications or drugs, including illicit drugs, he said he had used “a little bit” of “crack” around 4:30 p.m. the day before, taking it by himself at home.
After he called in sick, he, his wife, and his son got up, and his son went to school at 8:05 a.m. Defendant and his wife sat on a bedroom couch and watched television, talking and laughing together about the program that featured animals. She was laughing at the television show, but he felt like she was laughing at him. He came up behind her and cut her throat when she turned around. He said, “She... and then... suddenly I don’t calm person, that is all I remember sir, that’s it, I ask forgiveness from my wife.” Asked why he attacked his wife, he said as he cried, “I don’t want people suffering sir in this world, that’s why I killed my wife today, ” referred to someone at the Jewish home who “can’t save my [unintelligible] life, ” and said, “[I can] kill myself... I’m the one you need.” He also said, “I’ve been dreaming this shit all my life... I died too many times already and I’ve been feeling myself, I’ve been playing with Russian [r]oulette myself.”
September 25, 2004 Interview
In the morning of the next day, September 25, 2004, the inspectors again asked defendant to tell them what had happened. Defendant again said he killed Maria over her “chicken” and “no balls comments, ” and now said they argued a lot and that he felt shamed and abused by her comments earlier that morning in front of his son; as he started to sob, he added that he had made a mistake and loved his wife. He said Maria kept “saying I’ve got no balls so many times.... She hears something and that’s it sir, I explode.” He also said Maria would threaten to kill or hurt herself too. He said, “we fight, we fight a lot, we, we talk a lot. And I don’t want my son seeing me and her fighting too much. I don’t want my... wife treating me the way she treating me. Because I don’t like it because I don’t want my son some day to get... angry because I been... angry my whole life. It’s like they abuse me.”
He went over the events of the morning again, adding new information. He said that around 8:00 a.m., he told his son to stay home from school so they could go shopping for shoes at the mall. His wife started to scream “again, ” insisting that their son go to school. He “don’t like that, the screaming too much because I want to change my life, sir.” His argument with his wife about their son made him feel like “I’m not like a father.” At the time, he was not thinking of harming her for ordering their son to school against his wishes, but he was angry “[j]ust a little bit inside of me, ” and said she “always against me” and “[s]he hold me down, and how can I get up if the one you love is the one putting you down.”
He said he put the two knives out in the kitchen for chopping food. Back in the bedroom, as he and Maria watched television together, he opened a drawer and took out a knife, and did not know why he did so. She called him chicken as they sat on the couch. After she stood up, she told him, “You have no balls.” She stood by a window, still laughing. He stabbed her in the neck. His anger had been building during the morning, since she ordered their son to school. He had not thought about killing her before, and loved her. Asked why he cut Maria, defendant said he did not know how to explain it.
Defendant answered affirmatively when asked if he had the knife in his hand to scare Maria. Then, asked why he had the knife in his hand, he said, “Yes, sir, I wanted to do it, it was supposed to be myself sir.” Told that he could not be heard, defendant said, “That I want to kill myself, ” and wanted to do this “instead of her.” He acknowledged that he “didn’t say this all” the day before. When asked about his previous reference to Russian roulette, he indicated this was when they were in the Philippines, and that he and his wife each had tried to kill themselves.
Defendant said his baby daughter was with Maria’s parents in the Philippines, where Maria took the baby after their previous domestic incident, first asking him if he could take care of the baby, which he could not do because of his obligations. He was not happy with her decision because he wanted his family and friends to take care of the baby, but did not want to fight with Maria and paid for the plane tickets.
Defendant discussed his actions after he killed Maria. He got his gun, washed his hands and changed his clothes, covered her body with some of his clothes, a towel, and a baby blanket, and washed the body’s face. He took a box with the gun in it to his car and drove to the police station.
Defendant was asked about a hole in the bedroom wall. He said he kicked the television into the wall during a previous argument. His explanation was unclear, but he referred to Maria wanting to call the police, and that they “got a restraining order for me” “not to see my, my daughter, my son and her in that house.” He left the house and gave up his guns to the police.
After a 15-minute break, the inspectors asked defendant to take them through what had happened as defendant sat on the couch with Maria watching television. Defendant repeated much of what he had said before, stating that his wife looked at a chicken on the television and laughed at it and, though he did not know why she was laughing, it made him feel like a chicken “because she put a chicken on the picture of my baby... and keep saying I’ve got no balls so many times. [pause] She hears something. [unintelligible] and that’s it, sir, I explode.”
Defendant said that as he sat on the couch, he pulled the knife from his pocket and opened it. Maria did not see this because he kept it on his side. Asked what he was going to do with the knife, he said, “Hurt myself... like to cut my throat, ” intending to kill himself. He did not tell Maria that was his intention. When he cut her throat, he intended to kill her. Maria went to look out the window because she heard something, and was saying “no balls” when he walked up to her and cut her neck. Asked if Maria was saying he did not have “the balls” to kill himself, he replied, “All I know is feelings took over; I made a mistake, I killed her, that’s all.”
After a short break, the interview continued, and defendant was asked again about the events of the morning. He said that he and Maria remained in bed until about 9:00 a.m. She got up and went to the kitchen, and he remained in bed for 15 or 20 minutes. She returned, sat on the couch, and turned on the television. Although his statement is not altogether clear, it appears he said he removed bullets from his bedroom and possibly from a gun magazine, and put them in a bag in his son’s room because he did not want the bullets in his bedroom. He said he had to get the gun out of the room and, when asked why, said, “Someone is gonna die; either one of us or both of us, ” and that he “just thought about” killing Maria and himself. He took the gun out of the room, put it in the hallway, and went to the kitchen.
Defendant said he then took out two knives and put them on the side of a toaster because he was thinking that he would use the big one for himself and the other for Maria, but also referred to another knife and the gun in the bag. He already had the smaller knife in his shorts pocket, which he had taken out of the gun bag and was the one he eventually used. He went back into the bedroom with the little knife in his pocket, took out the little knife, and opened it. He was asked, “And what were you planning on doing? [pause] What did you tell me you were going to do?” He replied, “What I said, sir, kill her and kill myself.” The inspector asked, “You were planning on killing your wife and killing yourself with the little knife?” Defendant replied, “Yes sir.”
Defendant then recounted the events that occurred just before he killed Maria. He did not know why she stood up. When she stood up and walked over to the window, he stood up and walked over to her as she looked in the window, did not remember what she said because he just “explode, I totally explode. Suddenly. This quick.” He cut her throat, meaning to kill her. Asked if he knew what he was doing was wrong, he said, “I didn’t think that way [unintelligible], sir.” After he cut Maria’s throat, he thought about cutting himself, but saw photographs of his children and decided not to so that his son did not come home and find them both in the room dead.
Defendant was also asked about various other matters. He said he had used “crack” since December 2002, about once a week, and did not drink every day. He had been in the United States since 1993, and had a girlfriend for five years here, last talking to her in 2002. Maria knew about his girlfriend before she came to the United States, and “[a]lways” brought her up when she argued with him. Defendant went to anger management classes once a week and talked to a counselor in group sessions. He played Russian roulette in the Philippines, not here, one time when he was about 13, and did not think about hurting himself when he was here.
Verdict and Sentencing
The jury found defendant guilty of murder in the first degree and found the weapon allegation to be true. Subsequently, defendant moved for a new trial or modification of the verdict to second degree murder on various grounds, which the People opposed. After hearing argument, the court denied defendant’s motion for a new trial on the grounds defendant stated in his motion papers, and scheduled a sentencing hearing.
Subsequently, however, the court also ruled on whether or not to reduce the verdict to second degree murder based on insufficiency of the evidence. Before the ruling, the People provided, at the court’s invitation, supplemental briefing on the sufficiency of the evidence of premeditation and deliberation, the elements necessary to establish in order to prove first degree murder. At the March 14, 2008 hearing, before announcing sentence, the court heard argument from the parties on what it characterized as the “last part” of defendant’s motion, and reduced the verdict from first degree to second degree murder, finding insufficient evidence of deliberation on grounds we discuss further, post.
The court sentenced defendant to 16 years to life in prison, consisting of 15 years to life for second degree murder plus one year for the weapon enhancement. It recommended that parole not be granted to defendant.
Both the People and defendant filed timely notices of appeal. In part I, post, at pages 10 to 25, we discuss the issues raised in the People’s appeal; in the remaining parts (pp. 24-67), we discuss the issues raised in defendant’s cross-appeal.
DISCUSSION
I. The Trial Court’s Reduction of the Verdict
The People challenge the trial court’s reduction of the verdict from first degree to second degree murder on both procedural and substantive grounds. They assert that, first, the court was without authority to do so because it already had ruled on defendant’s motion before questioning the sufficiency of the evidence, and could not reduce the verdict on an issue defendant did not raise in his motion. Second, the trial court abused its discretion in reducing the verdict because there was substantial, credible evidence supporting the jury’s verdict of first degree murder. We conclude the People have forfeited their appellate claim regarding the court’s purported lack of authority, and that their abuse of discretion argument is unpersuasive.
A. The Proceedings Below
1. Facts Relevant to the People’s Procedural Claim
After trial, defendant moved for a new trial or, in the alternative, for modification of the verdict to second degree murder pursuant to section 1181 and People v. Dillon (1983) 34 Cal.3d 441 (Dillon) [allowing constitutional challenges to punishment disproportionate to an individual’s culpability]. The trial court eventually reduced the verdict based on section 1181, subdivision (6), which provides in relevant part that “if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree... the court may modify the verdict... without granting or ordering a new trial[.]” (§ 1181, subd. (6).) However, defendant did not make this argument in his papers. Instead, he argued that the jury instructions did not adequately inform the jury how to consider provocation in determining the degree of the murder, and that the statutory punishment of first degree murder was grossly disproportionate to his individual culpability in light of the provocation involved. He filed supplemental papers arguing the jury committed prejudicial misconduct by not following the court’s instructions about provocation in determining the degree of the murder, and that two jurors committed prejudicial misconduct by not disclosing certain information during voir dire.
Defendant’s motion for a new trial was heard on February 20, 2008. At the hearing, his counsel did notargue the first degree murder verdict was based on insufficient evidence or cite to section 1181, subdivision (6). His counsel, after arguing the jury instructions were insufficient, did state, “[s]o [defendant] is essentially asking this court to find that the first degree verdict in this case was inappropriate and excessive, ” and encouraged the court to consider posttrial expert testimony about defendant’s mental condition presented as part of sentencing.
After hearing additional argument on other grounds, the court ruled that “the motion for new trial is denied” and extensively discussed its reasons. Just before the hearing’s conclusion, the court asked counsel to approach the bench for a discussion that took place off the record, and then announced the date for the sentencing hearing.
The minutes for this February 20 hearing state that the case was on calendar for hearing on the “New Trial Motion, ” the “matter” was argued and submitted, the “[m]otion is denied, ” and the case continued for sentencing.
Sentencing was continued on February 26 and 28. At the brief February 26 hearing, the court indicated that it would review the transcripts of defendant’s police interviews, and asked counsel if they had any objection to it doing so. The prosecution and defense counsel answered that they did not. The court stated that “off the record, I explained the purpose of the court’s review of these. I don’t need to go into it at this point. [¶] If anything is going to be forthcoming from my review, I will let both of the attorneys know in advance.” At the February 28 hearing, the court stated it had read the police interviews transcripts, had not “completed [its] work, ” and suggested a continuance to March 4.
On March 3, the People filed “People’s Memorandum in Support of Upholding the Jury’s Finding of Murder in the First Degree.” The People wrote: “Defendant, through counsel, filed a motion for a new trial which included what is commonly referred to as a Dillon motion. The court indicated that it was also going to examine the record to determine whether or not there was sufficient evidence to support the jury’s finding on first degree rather than second degree murder. The court invited the People to submit short briefing in support of the jury’s verdict. The People take up the court’s offer here.” We have not found in the record when the court made this request, nor any objection by the People to the court’s procedures.
On March 14, 2008, the court convened a hearing to address the sufficiency of evidence issue and announce sentence. At the beginning of the hearing, the court stated, without objection by counsel, that it was “pretty sure the attorneys know what the issues are that we’re going to be facing in this hearing.... [¶] This hearing will be divided into two parts. There will be a hearing on the motion or the last part of the motion for a new trial and then sentencing.”
The prosecution argued the sufficiency of the evidence issue on the merits without objecting to the court’s authority to rule on the issue. Defense counsel argued there was insufficient evidence to prove premeditation, contending defendant not only had thoughts of homicide, but also of suicide, and urged the court to consider “the longstanding, repeated emotional abuse” that defendant experienced during his marriage, as well as “constant taunting” that he was not an adequate provider or father. As a result of this “emotional turmoil, ” defendant was “emasculated, depressed, ashamed and suicidal, and it was a terrible, sudden, momentary loss of control that he will regret the rest of his life.” Counsel asked the court “to consider the provocation and reduc[e] this offense to second degree.
The matter submitted, the court stated, without any comments by the parties:
“[F]or the record, the court wants to make it clear that at this time the court is dealing with the issues under section 1181, subdivision (B) [sic] of the Penal Code.
“The court has previously dealt with previous alleged grounds as a basis for a new trial in this case such as juror misconduct, instructional error and the Dillon issues.
“The court does not believe that the separation of these issues into various hearings has violated any rule of California procedure.
“In particular, the court is in compliance, it believes with the so-called Levi, ... Lindsey... rule as enunciated in People v. Hernandez, 99 Cal.3d at page 771, which holds that once a court has ruled on a new trial motion, it cannot reconsider the motion except in very narrow circumstances. But, in any event, that rule does not apply here because I’ve not ruled on the 1181 issues at this point.”
2. The Court’s Decision to Reduce the Verdict
Turning to whether or not to reduce the verdict, the court found the evidence clearly established that Maria “was a victim of a premeditated, willful murder” and that, “there has been no provocation or conduct by [Maria] that in any way justifies or excuses this killing, which, in the court’s view, amounts to a murder. [¶] There is no lawful or legal evidence of heat of passion or sudden quarrel, and the killing in this case is not manslaughter.”
The court continued, “However, what [Maria] did and said bears on whether the defendant acted with... deliberation[.]” The court stated, “a verdict of murder in the first degree on the theory of a willful, deliberate and premeditated killing is proper only if the slayer killed as the result of careful thought and weighing considerations as a deliberate judgment or plan carried out coolly and steadily according to a preconceived design.” Three guides were “first, whether or not what the defendant did prior to the killing bears on the issues; secondly, the facts about the defendant’s prior relationship or conduct with the victim; and three, what would in turn support an inference that the killing was the result of preexisting reflection and careful thought and weighing of considerations, rather than the mere unconsidered or rash impulse hastily executed.” First degree murder required “considerably more reflection than the mere amount of thought necessary to form the intention.”
The court defined “deliberate” as “formed or arrived at, determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan carried out coolly and steadily according to a preconceived design and given to the weighing of facts and arguments with a view to a choice or decision, careful in considering the consequences of such a step. [¶] The word ‘deliberate’ is the opposite of hasty, impetuous, rash or impulsive.” The court further stated, “the defendant acted deliberately if he carefully weighed the considerations for and against his choice and knowing the consequences decided to kill.”
The court then turned to a discussion of the evidence. It began with the evaluations of the defendant’s mental condition, apparently submitted by the defense to the court for sentencing purposes. Defense counsel objected that the court could not consider this evidence because it was not introduced at trial and the court, after the prosecution confirmed this was the case, disregarded the reports. It then discussed defendant’s September 24 and 25 statements to the police inspectors.
Regarding defendant’s September 24 statements, the court referred to defendant’s statement that he did not know what led to the killing, that it “just happened, ” that defendant said he had stabbed Maria because she laughed, and said he was “chicken” and “had no balls” and that he “could not take it any longer.” The court also cited defendant’s reference to his dreams, that he “died too many times, ” and had played Russian roulette with himself; and that defendant said Maria’s countermanding his instruction to his son to “cut out of school” undercut his joint authority in the home, that he could not explain why he cut Maria’s throat and “exploded” when she said he had “no balls, ” and that “his feelings took over” when Maria told him “he had no balls to kill himself after he threatened suicide.”
Regarding defendant’s September 25 statements, the court referred to defendant’s statements to the inspectors that, after saying that he had thought about killing her, “when she made the statements regarding him being a coward and having no balls and being chicken, he had totally exploded.”
The court, citing section 1181, subdivision (6) and relevant case law, indicated it sat “as the 13th juror” in this circumstance, and was “not redoing the substantiality of the evidence.” Based on all of the evidence of the case, it found there was “reasonable doubt regarding... deliberation.... That being the case, the court is required to reduce the verdict in this case to murder of the second degree, ” “the strongest possible verdict legally supported by the evidence.” The court was “fully familiar with the state policy regarding domestic violence and what the duties of judges are in evaluating cases like this, ” but it could not allow the first degree murder conviction to stand in light of the existing law of homicide.
B. The Court’s Authority to Reduce the Verdict
The People first argue that the court did not have the authority to reduce the verdict for two reasons. First, the court denied defendant’s motion and its denial had been entered in the court’s minutes, and the court did not have authority to act after that time. Second, the court could not reduce the verdict on a ground not raised by defendant in his motion. Defendant argues we should reject the People’s claim on several grounds, including that the People forfeited their appellate claim, and that the record indicates the parties agreed to defer resolution of the weighing/sufficiency issue until sentencing “at some time—apparently off-record.” We conclude that the People have forfeited their claim by not objecting to the trial court’s actions.
The People, acknowledging they made no objection below, argue we should exercise our discretion to consider their procedural claim because the facts are undisputed and the issue is pertinent to a proper disposition of the appeal. However, the People’s failure to object in the trial court, including in the face of the court’s own statements regarding the circumstances and its authority to act, has resulted in a factual dispute, as well as an incomplete record from which it is possible to conclude that the court acted within its authority. Under these circumstances, we decline to address the merits of the People’s claim.
The People correctly point out that, as a general rule, “in a criminal case, a trial court that has denied a motion for a new trial lacks authority to consider and grant a second or renewed motion for a new trial.” (People v. DeLouize (2004) 32 Cal.4th 1223, 1228.) However, the People do not point out that the Supreme Court made clear in the same passage that there are certain recognized exceptions to this general rule. (Id. at p. 1228, fn. 1.) For example, “ ‘[a]n order on a motion for new trial may be reconsidered (1) where the ruling is immediately reconsidered before it has been fixed by entry in the minutes and before any further proceedings have transpired [citation]; (2) in a furcated trial, where certain policy considerations render the general rule inapplicable [citation]; or (3) where the order is entered inadvertently or prematurely.’ ” (Id. at p. 1230.) The general rule against further consideration “does not deprive trial courts of the power to hear second new trial motions. Rather, it directs them to avoid extended new trial proceedings where possible, subject to reasonable exceptions in the interests of justice.” (People v. Stewart (1988) 202 Cal.App.3d 759, 763 [interests of justice supported the trial court’s reconsideration of its prior denial where the second motion raised issues of ineffective assistance of counsel].)
“The general rule is that appellate courts will not consider matters raised for the first time on appeal.” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1575, fn. 4.) However, as the People correctly point out, in the absence of a timely objection in the trial court, appellate courts have considered issues of law turning on undisputed facts that are pertinent to the proper disposition of the appeal. (See, e.g., Siam, at p. 1575, fn. 4 [regarding questions of law only or of public interest or public policy]; People v. Masotti (2008) 163 Cal.App.4th 504, 508 [addressing a jurisdictional question of pure law regarding the trial court’s grant of a new trial not raised until the People’s reply brief]; People v. Taylor (1993) 19 Cal.App.4th 836, 839 (Taylor) [considering the trial court’s jurisdiction to entertain a second motion for new trial filed after remittitur because it involved a legal question of jurisdiction].)
The People argue we should consider its claim because it purportedly involves an issue of law turning on undisputed facts. This is incorrect. The People contend the trial court considered whether to reduce the verdict based on the sufficiency of the evidence on its own initiative after denying defendant’s motion and its denial was entered into the court’s minutes on February 20, 2008. The People concede, however, that, although he did not raise the issue in his motion papers, defendant was entitled to raise the issue orally. (People v. Braxton (2004) 34 Cal.4th 798, 807, fn. 2). Defendant contends it is likely his defense counsel orally raised the insufficiency of evidence issue before the court ruled on February 20, which the court then deferred until the sentencing hearing. Defendant points out that the court and counsel had a discussion off the record at the end of the hearing and that the court’s order was a denial of defendant’s motion for a new trial without reference to defendant’s alternative motion to reduce the verdict. The court’s statements at the March 14, 2008 hearing, including that it was hearing “the last part” of defendant’s motion, that the issues had been separated “into various hearings, ” and that it was not reconsidering defendant’s motion because it had “not ruled on the 1181 issues at this point, ” support defendant’s view of the facts.
We cannot determine with certainty from the record whether the court and the parties agreed to defer a timely raised sufficiency of the evidence issue, or whether the court considered the circumstances to qualify as an exception to the general rule referred to in People v. DeLouize, supra, 32 Cal.4th at page 1228, footnote 1. Certainly, the trial court believed that it was acting within its authority; furthermore, its comment that its actions were not covered by the case law disallowing reconsideration of a new trial motion because it had not yet ruled on the section 1181 issues suggests the reservation of these issues by the parties until later hearing as much as it suggests anything else. Just as certainly, an objection by the People would have clarified the circumstances and created a record suitable for appellate review. Under these circumstances, we cannot ignore the People’s failure to object below. We find by failing to object, the People forfeited the appellate claim. (Siam v. Kizilbash, supra, 130 Cal.App.4th at p. 1575, fn. 4.) Therefore, we do not address the merits of the People’s “lack of authority” claim, or the parties’ other arguments, including defendant’s claim that the court had jurisdiction to review the matter pursuant to section 1385, and that, if the court did not have jurisdiction, he received ineffective assistance of counsel.
C. The Court’s Reduction of the Verdict
The People argue the trial court erred when it reduced the verdict from first degree to second degree murder based on a misunderstanding of the element of deliberation, in disregard of the substantial, credible evidence supporting the jury’s findings, in excess of its supervisory capacity, and without making necessary findings, thereby abusing its discretion. We conclude the court did not abuse its discretion.
As we have discussed, the trial court reduced the jury’s verdict pursuant to section 1181, subdivision (6). “While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citations.] It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. [Citations.] This does not mean, however, that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.” (People v. Robarge (1953) 41 Cal.2d 628, 633.)
“A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ ” (People v. Davis (1995) 10 Cal.4th 463, 524.)
As the parties point, out there has been some disagreement among the appellate courts regarding the parameters of a trial court’s discretion pursuant to section 1181, subdivision (6) and case law. In Taylor, supra, 19 Cal.App.4th 836, relied on by the People, the Second Appellate District reversed a trial court’s grant of defendant’s motion for a new trial for insufficiency of the evidence after he had been convicted of attempted first degree murder and conspiracy to commit murder. The appellate court held the trial court abused its discretion when it appeared to have disregarded the jury’s verdict and decided the result it would have reached if the case had not been tried by the jury, when its role was simply to consider the probative force and the evidence and determine whether as a whole it was sufficient to sustain the jury’s verdict. (Id. at p. 848.) The court concluded that, “[i]nasmuch as the motion for new trial failed to set out any proper ground to support an order granting it, and the trial court failed to articulate any basis to support its conclusion that the verdict was not supported by sufficient credible evidence, we can only conclude that the trial court abused its discretion in granting the motion.” (Id. at p. 849.)
However, in People v. Dickens (2005) 130 Cal.App.4th 1245 (Dickens), relied on by defendant, the Fourth Appellate District affirmed the trial court’s grant of a motion for a new trial on the charge of willful, deliberate, and premeditated attempted murder. The Dickens court expressly disagreed with the reasoning in Taylor, supra, 19 Cal.App.4th 836. (Dickens, at p. 1253.) The court concluded that “the idea that the existence of substantial evidence which supports the jury’s verdict renders the trial court’s contrary determination an abuse of discretion or a usurpation of the jury’s function contravenes the established law.... It is the trial court’s function to determine independently whether it is satisfied that there is sufficient credible evidence to sustain the verdict. If the record contains any substantial evidence which supports a judgment contrary to that of the jury, the trial court’s ruling must be upheld, even if there is also legally sufficient evidence to support the jury’s verdict. [Citations.] [¶] Second, because the appellate court’s function is to determine whether the trial court’s ruling is supported by substantial evidence, it is irrelevant that the trial court failed to articulate its reasons for concluding that the evidence was insufficient to support the verdict. Rather, we look to the record to make that determination. (Dickens, at pp. 1253-1254.)
The Dickens court observed that “[o]ur Supreme Court created a dilemma by stating on the one hand that the trial court must ‘consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict, ’ and on the other that the court should not ‘disregard the verdict’ or ‘decide what result it would have reached if the case had been tried without a jury.’ [Citations.] It is conceptually difficult both to give deference to the jury’s verdict and to independently determine whether the verdict is supported by sufficient credible evidence and overrule the verdict if it is not supported by such evidence. Nevertheless, Robarge and the other cases we have cited make it abundantly clear that a decision to grant a new trial on the basis of insufficient evidence is an abuse of discretion only if it is arbitrary or irrational, and that such a decision is not arbitrary or irrational if a reasonable trier of fact could have reached a result different from that reached by the jury.” (Dickens, supra, 130 Cal.App.4th 1252, fn. 3.)
The differences between Taylor and Dickens are somewhat reconciled by our Supreme Court’s instruction that, in reviewing a motion for a new trial, the trial court “must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it.” (People v. Davis, supra, 10 Cal.4th at pp. 523-524.) Nonetheless, we have found in our independent research that the Supreme Court recently made clear the trial court is to conduct an independent review of the evidence without any deference to the jury’s determinations in reviewing motions brought pursuant to section 1181, subdivision (6). The court, sharply contrasting these duties with those the trial court exercises when reviewing a section 1181.1 motion for acquittal (in which the court reviews the record for substantial evidence to support the elements of the offense), stated that the trial court “extends no evidentiary deference in ruling on a section 1181, [subdivision] (6) motion for a new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect as a ‘13th juror. [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury’s verdict is ‘contrary to [the]... evidence.’ (§ 1181, [subd.] (6); [citation].)” (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.)
Based on Robarge, Davis, and Porter, we conclude Dickens, rather than Taylor, articulates the correct approach. Thus, if the record contains “any substantial evidence which supports a judgment contrary to that of the jury, the trial court’s ruling must be upheld, even if there is also legally sufficient evidence to support the jury’s verdict.” (Dickens, supra, 130 Cal.App.4th at p. 1254.) Under this standard of review, the trial court did not abuse its discretion.
The trial court’s decision found there was not sufficient evidence to establish that defendant “deliberated” prior to killing Maria, an element which it appropriately defined in the course of announcing its decision. A murder perpetrated by means of “willful, deliberate, and premeditated killing” is in the first degree. (§ 189.) “The type of evidence... found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed.’ ” (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
As used in section 189, “ ‘[d]eliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test if 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....” ’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than an unconsidered or rash impulse.” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
The trial court stated that it reviewed all of the evidence in making its decision to reduce the verdict. Nonetheless, it relied heavily on some of defendant’s September 24 and September 25, 2004 statements to the police inspectors, as do both sides on appeal (albeit each relying on different statements). These statements contain sufficient evidence to support the trial court’s ruling. As the court indicated, defendant told the inspectors that he intended to kill himself when he stood up in the bedroom with a knife in his hand as his wife stood by a bedroom window, but that when his wife laughed at him, called him a “chicken” and told him that he had “no balls, ” he “exploded” and killed her “suddenly” without considering whether it was right or wrong, and that it was a “mistake.” These statements, as well as the others cited by the trial court, indicate defendant killed Maria without a careful weighing of considerations. Regardless of any thoughts or plans he confessed to have had before this time, these statements indicate he stood up in the bedroom with the knife in his hand intending to commit suicide, but exploded and suddenly, without thinking, killed Maria instead upon hearing her laughter and comments. This is substantial evidence of a lack of deliberation.
The People assert the “trial court’s analysis reflects a misunderstanding of the element of deliberation” and that “substantial credible evidence supports the jury’s finding of premeditation and deliberation here.” The People contend that, “[g]iven the strength of this evidence [of deliberation], which the trial court did not reject, it was error for the trial court to conclude that the victim’s laughter and minor insults, and [defendant’s] own description of the killing as reflexive and explosive, precluded a finding of deliberation.” This essentially asks us to reweigh the evidence, which we will not do in determining whether substantial evidence supports the court’s determination. (See People v. Martinez (2003) 113 Cal.App.4th 400, 412 [discussing the standard for assessing on appeal the sufficiency of evidence of premeditation and deliberation].) Moreover, we have carefully reviewed both the video and transcript of defendant’s September 24 and 25 interviews, and conclude that defendant did not contradict himself when he told police that at the moment he stood up with the knife in the bedroom, he intended to kill himself.
We note that there is evidence to support the jury’s verdict. Defendant told inspectors on the second day of the interview that he thought during that morning about killing himself, Maria, or both of them; that at some point he put a small knife in his pocket, and went to the kitchen and took out the knives found on the counter, thinking about using one to kill himself and one to kill his wife; and that he reentered the bedroom where his wife was watching television planning to kill them both. Nonetheless, under a substantial evidence standard of review, none of this evidence trumps defendant’s statements about intending only to kill himself in the moments before he killed Maria.
The People also argue the fact that defendant “exploded” does not mean he did not act with deliberation, and cite cases in which premeditation and deliberation were found sufficient to support a first degree murder conviction, despite evidence that the defendant erupted at the time of the killing. (See People v. Wharton (1991) 53 Cal.3d 522; People v. Koontz, supra, 27 Cal.4th 1041.) These cases are inapposite because they did not involve the circumstances that existed here, namely a defendant who said he contemplated killing himself, his ultimate victim, or both of them in the hours preceding the murder, and ultimately fixed on killing himself, only to suddenly explode and kill his victim after she made comments that emotionally upset him.
The People also argue the trial court exceeded its supervisory capacity over the jury’s function when it reduced the verdict based on its view of defendant’s state of mind, rejecting the jury’s credibility determinations without any findings that the evidence was insubstantial or that the jury failed to intelligently and justly perform its duty, thereby abusing its discretion. According to the People, the trial court “was not free to disregard the verdict and decide the case as if it had not been tried to the jury. In reducing the verdict, the court markedly failed to explain how the isolated portions of [defendant’s] confession undermined the jury’s credibility determinations to the contrary, in the teeth of compelling evidence from that same confession of premeditation and deliberation. Nor was there evidence in the record that the jury had abdicated its fact-finding duties. [Citation.] Absent such findings, the court’s order reducing the verdict from first to second degree murder constituted a manifest abuse of discretion.”
We reject this argument for three reasons. First, it relies heavily on Taylor, supra, 19 Cal.App.4th 836. As Dickens indicated, the trial court was not required to make the findings the People claim it should have made. (Dickens, supra, 130 Cal.App.4th at pp. 1253-1254.)
Second, the court was entitled to make its own determinations about defendant’s credibility, including which of his statements were to be believed. (People v. Robarge, supra, 41 Cal.2d at pp. 633-635 [defendant entitled to the benefit of the court’s independent conclusion as to the sufficiency of credible evidence to support the verdict, including regarding the credibility of witnesses].)
Third, the court made extensive comments about its view of the evidence, and referred to the jury’s verdict. There is no indication the court ignored the jury’s verdict or the evidence in support of it. To the contrary, the court indicated it had reviewed the People’s memorandum summarizing this evidence.
In short, the court’s reduction of the verdict was supported by substantial evidence that defendant did not “deliberate” before murdering Maria. The court did not abuse its discretion in reducing the verdict. In light of our conclusion, we have no need to address the other issues raised by the parties, such as defendant’s argument that there was a lack of evidence regarding premeditation.
We turn now to the issues defendant raises in his cross-appeal.
II. The Admission of Defendant’s Police Interviews
Defendant first argues the trial court committed prejudicial error when it granted the prosecution’s motion to admit his police interviews into evidence. He claims the court erred when it found that he had impliedly waived his Miranda rights to remain silent and to legal counsel voluntarily and intelligently, particularly in light of his difficulties with English, his questioners’ use of jargon and “brusque, aggressive advisement colloquys, ” and his “severe emotional vulnerability.” We find no error.
A. The Proceedings Below
The People moved before trial to admit defendant’s two recorded police interviews on September 24 and 25, 2005, and a hearing on the motion was held.
The People also moved to admit evidence of defendant’s statements to Officer Lui and Lieutenant Cleary upon surrendering himself on September 24, 2004, which are not subjects of defendant’s appeal.
San Francisco Police Inspector Michael Mahoney testified at the motion hearing. He said that on the first day of the interviews, September 24, 2004, he asked defendant a few introductory questions to establish his identity, and determine if he was cognizant of his surroundings and could communicate in English. Defendant did not show any problem understanding him and Mahoney understood defendant. He read defendant his rights from a standard card each day, and defendant did not invoke his rights to remain silent or to legal counsel at any time. On September 25, 2004, before beginning the interview, Mahoney asked defendant in an unrecorded conversation whether he was willing to talk to the officers, and defendant replied, “ ‘Yes, I’ll talk to you.’ ” Neither Mahoney or Cleary made any threats or promises to induce defendant’s cooperation.
According to the transcripts and videos of the interviews, defendant’s first interview began on September 24, 2004, at 1:18 p.m. Mahoney told him the police were investigating him for murdering his wife, and that he, Mahoney, was going to read defendant his rights before asking him questions. Mahoney told defendant he had the right to remain silent and anything he said could be used against him in court; he had the right to the presence of an attorney before and during any questioning; and an attorney would be appointed for him free of charge before any questioning if he wanted, but could not afford, one. After stating each of these rights, Mahoney asked defendant if he understood what was being said to him. Defendant promptly responded affirmatively each time. Mahoney then asked defendant to state in his own words why he came in and what had happened, and defendant promptly replied, “I killed my wife so I came here.” Defendant was interviewed for approximately two and a half hours that day.
The next day, September 25, 2004, Mahoney again told defendant about his rights before asking questions, repeating the same advisements he had stated the day before, and again pausing after each to ask if defendant understood what he was being told. Again, defendant promptly responded each time that he understood and, again, Mahoney began asking him questions about the incident. Defendant was interviewed for approximately four hours that day.
The People also presented the testimony of Deputy Sheriff Christianne Crotty, who stated that defendant appeared in court on September 29, 2004, when she was acting as bailiff. She asked defendant if he required the services of an interpreter. He responded that he did not. Nonetheless, Crotty requested a Tagalog interpreter, whose assistance defendant declined after talking with the interpreter.
At defendant’s request, the court also took judicial notice of the testimony in another hearing by Dr. Patricia Perez-Arce, proffered in support of defendant’s request for an interpreter at trial. Perez-Arce, a clinical neuropsychologist, concluded his English comprehension was at a fourth-grade level for a native English speaker. Defendant was able to follow everyday conversations, but was more limited in his ability to understand complex communications and abstract concepts. He could not understand the technical and complex language used during a criminal trial and “definitely would not be able to understand many abstract concepts that are used in English.” Defendant’s ability to express himself in English was in the lowest one percentile of native English speakers of the same age.
Perez-Arce also interviewed defendant with the assistance of an Ilocano interpreter. She found his responses in Ilocano, his native language, to be much more relaxed, forthcoming, and fluid, but he still had cognitive impairments that made it difficult for him to understand abstract terms.
The court granted the People’s motion. It found defendant had been advised properly about his Miranda rights and had waived them “knowingly and voluntarily, without any language barrier interfering with his ability to do so.” The court found the detectives asked “simple and uncomplicated” questions, and defendant’s answers “were responsive to such questions.”
At trial, defendant also objected to the admission of his interviews on constitutional grounds, which objections the court overruled.
B. Analysis
A valid waiver of Miranda rights must be voluntary, knowing, and intelligent. (People v. Combs (2004) 34 Cal.4th 821, 845.) It is voluntary if it is the product of a free and deliberate choice rather than intimidation, coercion, or deception. (Moran v. Burbine (1986) 475 U.S. 412, 421.) It is knowing and intelligent when it is made with full awareness of both the nature of the right being abandoned and the consequences of abandoning it. (Ibid.) “Both aspects are tested against the totality of circumstances in each case, keeping in mind the particular background, experience and conduct of the accused.” (People v. Davis (2009) 46 Cal.4th 539, 586.) “Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” (Moran, at p. 421)
A waiver of Miranda rights does not have to be express. In appropriate cases, courts will find valid implied waivers where a defendant has indicated he understands his rights but nevertheless proceeds to talk with police. (People v. Cruz (2008) 44 Cal.4th 636, 667-668; People v. Whitson (1998) 17 Cal.4th 229, 247-248.)
The People bear the burden of proving by a preponderance of the evidence that a defendant validly waived his or her Miranda rights. (Colorado v. Connelly (1986) 479 U.S. 157, 168; People v. Duren (1973) 9 Cal.3d 218, 237 (Duren).) “[T]he courts will not lightly find that there has been a waiver of a fundamental constitutional right, but, rather, will indulge in every reasonable presumption against a waiver.” (Duren, at p. 237.)
On appeal, however, defendant bears the burden of establishing that he did not competently and intelligently waive the right. (Duren, supra, 9 Cal.3d at pp. 237-238.) “ ‘The question whether an accused waived his right to counsel and his right to remain silent before making a statement to police officers is primarily a question of fact for the trial judge.’ ” (Id. at p. 238, ) “ ‘[W]e accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we “ ‘give great weight to the considered conclusions’ of a lower court that has previously reviewed the same evidence.” ’ ” (People v. Whitson, supra, 17 Cal.4th at p. 248.)
Having reviewed the totality of the circumstances, we conclude substantial evidence supports the court’s determination that defendant waived his Miranda rights. Defendant was 31 years old at the time of the interview, and had prior experience with law enforcement in the course of his assault against Maria in September 2003. His voluntary surrender to police and ready admission that he killed his wife, the absence of any evidence that he resisted answering any questions or ever sought legal counsel, and his subsequent extensive discussion with his interrogators in the face of what he admits on appeal were “restrained” interview techniques all indicate his willingness to waive his Miranda rights and discuss his crime. There is no indication that the police resorted to any pressure to elicit statements from defendant. As our Supreme Court observed in another case, “the record is devoid of any suggestion that the police resorted to physical or psychological pressure to elicit statements from defendant. To the contrary, defendant's willingness to speak with the inspectors is readily apparent from his responses. He was not worn down by improper interrogation tactics, lengthy questioning, or trickery or deceit.” (Whitson, supra, 17 Cal.4th at pp. 248-249.)
Defendant argues that Mahoney employed “brusque, aggressive advisement colloquys” to coerce cooperation from a vulnerable subject. This was not the case. Mahoney gave the advisements one by one, and paused after each to ask defendant if he understood them. Defendant readily stated that he did and immediately began answering questions about the crime. The videotaped interviews indicate that Mahoney spoke in an even tone, in a reasonable tempo, and that he did not do anything to influence defendant’s responses, other than to request that he had to say “yes” or “no” rather than “hhmm.” There is no evidence to support defendant’s contention that Mahoney acted aggressively.
As for whether defendant made a knowing and intelligent waiver, Mahoney gave the advisements to defendant in plain English, without technical legal jargon; and included simple phrases such as “you have the right to remain silent” and “[y]ou have the right to the presence of an attorney before and during any questioning.” Defendant’s ready responses to the advisements indicate he understood them.
Defendant relies on the testimony of Perez-Arce to argue the People did not establish he made a knowing and intelligent waiver. However, Perez-Arce confirmed in her testimony that defendant was able to understand her directives in spoken English and to participate in standardized tests administered in English. She indicated his fourth-grade level English comprehension was sufficient for him to understand everyday conversation. Her testing documented defendant had difficulty understanding advanced vocabulary words, but Mahoney’s advisements did not contain any of them. While she testified defendant would have difficulty understanding the technical and complex language used in a criminal trial, and had difficulty understanding abstract concepts, she gave no opinion touching on his ability to understand the advisements. Thus, her testimony does not undermine the trial court’s conclusion that defendant’s ability to speak and comprehend English was sufficient to enable him to make a valid waiver of his Miranda rights.
Perez-Arce testified that defendant did not understand words such as gigantic, furry, flamingo, tambourine, palm, canoe, clarinet, exhausted, vine, rodent, inhaling, valley, timer, links, archery, garment, fragile, dilapidated, isolation, feline, wailing, foundation, hatchet, blazing, mammal, reprimanding, hoisting, consuming, pastry, syringe, transplant, ladle, replenishing, abrasive, parallelogram, cascade, lever, detonation, and cultivating.
In short, we conclude the trial court did not err in granting the People’s motion to admit evidence of the September 24 and 25, 2004 police interviews of defendant. In light of our conclusion, we do not discuss the other issues raised by the parties, including whether admission of the police interviews was harmless error and defendant’s alternative ineffective assistance of counsel claim.
III. The Prior Domestic Violence Evidence
Defendant next argues the trial court erred prejudicially when it admitted evidence of his acts of domestic violence against Maria in September 2003, as “propensity” evidence under Evidence Code section 1109, and in instructing the jury about this evidence. His arguments are unpersuasive except as to the court’s admission of one piece of evidence, which admission was harmless error.
A. The Proceedings Below
Before trial, the People moved to admit evidence of defendant’s prior acts of domestic violence against Maria on September 12, 2003, such as Maria’s 911 call and subsequent statements to police at her home that day, and evidence from the subsequent police investigation, including photographs of Maria’s injuries and her statements to police three days later. The People sought admission of the evidence pursuant to Evidence Code sections 1109 (regarding evidence of prior domestic abuse) and 1240 (regarding spontaneous utterances), and argued defendant had forfeited any claim that his confrontation rights barred its admission because of his wrongdoing. Because defendant pled not guilty to murder, the People argued, the evidence was probative of his state of mind, motive, and his disposition and propensity to maliciously assault Maria, and contradicted defendant’s claim that he killed her in an isolated incident evoked by heat of passion.
Defendant opposed admission of the evidence. He argued it was unduly prejudicial pursuant to Evidence Code section 352 and violated his constitutional due process and confrontation rights.
The trial court ruled the evidence was admissible pursuant to Evidence Code sections 1109, 1237, 1240, and 1370, and that defendant had forfeited any bar based on his confrontation rights by killing his wife. It found the evidence relevant, and that it was admissible pursuant to Evidence Code section 352 because it was neither inflammatory nor remote in time, and would not mislead the jury.
At trial, defendant renewed his objections, arguing the People should not be allowed to use the evidence of a general intent crime (his prior domestic violence) to prove a specific intent crime (the murder charge against him). Also, the evidence was bad character evidence that was not probative of disputed issues because he was willing to stipulate that defendant killed his wife and not in self-defense; however, the People declined to so stipulate. The court overruled defendant’s objections. It found the evidence, even if of a general intent crime, was relevant to the parties’ disputes about the role of malice, premeditation, deliberation, and heat of passion in defendant’s commission of the crime.
At trial, Police Officers Olsen and Neves testified that on September 12, 2003, they went to the Corpuz residence to investigate a domestic violence report. They found defendant outside and Maria inside the residence. She was crying and looked disheveled. She told the officers she and defendant had argued about paying bills. Defendant had become angry, grabbed her by the shoulders and threw her face against the headboard of their bed, then got on top of her and choked her. Maria had red marks on her shoulders, slight redness on her throat, a scraped calf, and a small cut on her lip.
The People also played the recording of Maria’s 911 call to police on the day of the September 2003 attack, as well as a tape-recorded interview of her by police three days later.
Defendant requested a jury instruction limiting the use of this evidence to show his propensity to commit domestic violence, but not murder. The court instructed the jury: “If you decide that the defendant committed the prior domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or included to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit further acts involving domestic violence as charged here. If you conclude that the defendant committed the previous domestic violence, that conclusion is only one factor to consider along with all the other evidence. Prior domestic violence is not sufficient by itself to prove that the defendant is guilty of murder or manslaughter. The People must still prove each element of the charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.”
B. Analysis
Defendant argues the court trial should not have admitted the prior domestic violence evidence because it was unduly prejudicial under Evidence Code section 352 given his admission that he intentionally killed his wife, and violated his constitutional rights to due process, equal protection and confrontation. He also claims the trial court’s jury instruction about the evidence reduced the prosecution’s burden of proof, in violation of his rights to due process and a fair trial. We review each of these claims.
1. Defendant’s Evidence Code Section 352 Claim
The trial court did not abuse its discretion in rejecting defendant’s claim that the prior domestic violence evidence was unduly prejudicial pursuant to Evidence Code section 352 and due process.
Under Evidence Code section 1109, a prior act of domestic violence is admissible to prove the defendant’s propensity when defendant is charged with an offense involving domestic violence, including that defendant murdered his wife. (See § 13700, subd. (b) [domestic violence includes abuse committed against an adult who is a spouse]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1094-1097 [prior domestic violence properly admitted under section 1109 against a defendant charged with murdering his wife].)
In evaluating this evidence, the trial court should determine whether the prior act is unduly prejudicial under Evidence Code section 352 (Evid. Code, § 1109, subd. (a)(1)), which gives the trial court the discretion to exclude it “if its probative value is substantially outweighed by the probability that its admission will... necessitate undue consumption of time or... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Generally, we will overturn the trial court’s exercise of this discretion only “ ‘on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) “Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s).” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119 [upholding the admission of prior domestic violence evidence pursuant to Evidence Code section 1109].)
In People v. Rucker, supra, 126 Cal.App.4th 1107, the evidence admitted indicated the defendant, charged with attempted murder of her boyfriend, had assaulted a previous boyfriend with a firearm. The court found it relevant to show the defendant reacted violently to a relationship breaking up and to undermine her claim that she became violent because the victim raped her, which outweighed its prejudicial effect given that it had occurred in the relatively recent past and involved acts that were not more inflammatory than the charged offense. (Id. at p. 1120; see also People v. Morton (2008) 159 Cal.App.4th 239, 246-248 [allowing in evidence of defendant’s commission of domestic violence from a decade before that was less inflammatory in nature from the charged offense].)
Here, the trial court determined the prior domestic violence evidence was admissible for similar reasons as those considered in Rucker. The evidence of defendant’s attack of Maria in their home the year before following a verbal argument was relevant to the People’s argument that defendant, rather than suddenly killing her in response to her verbal taunts, acted with premeditation and deliberation, for example. It arguably suggested defendant engaged in a pattern of escalating violence, dominance and control, and that he, rather than his wife, was the party who engaged in abusive behavior.
Defendant argues he offered sufficient concessions, such as that he committed an unlawful killing, to merit the court having “greater pause before admitting the evidence on other issues besides propensity.” This ignores the probative value of the evidence to the People’s contentions that the murder was premeditated and committed after deliberation.
Defendant further argues that the “sparsely described conduct in 2003” was “not similar enough to the charged offense” to support inferences regarding such things as premeditation. As we have discussed, there were obvious similarities between the incidents.
Defendant also argues the prosecution did not dispute there was “some evidence of provocation on this occasion and earlier, ” it was “abundantly clear [defendant] killed out of anger, ” and “[t]he prosecutor had ample other evidence regarding the relationship to prove motive.” None of these arguments are persuasive where the People attempted to prove first degree murder in the face of a provocation defense.
In light of our conclusion that the court did not abuse its discretion in admitting the evidence pursuant to Evidence Code section 1109, we do not address the parties’ debate about whether or not the evidence of prior domestic violence was admissible pursuant to Evidence Code section 1101 or whether the admission of the evidence (with the exception of the one piece of evidence discussed, post) was harmless.
2. Defendant’s Due Process Claims
Defendant also argues that Evidence Code section 1109 violates due process, both on its face and as applied to him. This is incorrect.
As defendant acknowledges, our Supreme Court has rejected similar due process challenges to Evidence Code section 1108, which authorizes admission into evidence of prior sex crimes to prove criminal propensity to commit such acts. (People v. Falsetta (1999) 21 Cal.4th 903, 916-918.) The Supreme Court’s rejection has been applied to similar challenges to Evidence Code section 1109. (E.g., People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1030 [adopting the reasoning in Falsetta to reject a due process challenge to Evid. Code, § 1109].) Defendant nonetheless seeks to preserve his claim, although contrary to Falsetta and Hoover, that the admission of prior bad acts is violative of federal due process standards. We reject his claim based on this case law.
Defendant next argues that Evidence Code section 1109 as applied to his case, where he conceded that he intentionally killed his wife, improperly permitted his conviction “based solely upon unduly inflammatory character evidence and status, ” and deprived him of a fair trial. We disagree.
As the People point out, defendant’s not guilty plea put at issue all of the elements of the murder charge. (People v. Catlin (2001) 26 Cal.4th 81, 146 [court not persuaded the cause of death should have been established only through expert testimony and not through other-crimes evidence].) The People sought to obtain a conviction for first degree murder, which required proving defendant harbored the specific intent to kill Maria, and acted with premeditation and deliberation, rather than from heat of passion based on provocation. The prior domestic violence evidence was relevant to these issues.
Defendant’s offer to stipulate that he killed Maria, and did not do so in self-defense, did not address such things as the premeditation and deliberation elements of first degree murder. As the People point out, “[a]t least where the defense proposal does not constitute an offer to admit completely an element of the charged crime [citation], the ‘ “general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation that the effect would be to deprive the state’s case of its persuasiveness and forcefulness.” ’ ” (People v. Sakarias (2000) 22 Cal.4th 596, 629.) As the Ninth Circuit has held, “[o]nly if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ ” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Defendant’s argument is without merit.
3. Defendant’s Equal Protection Claims
Defendant also argues Evidence Code section 1109 violates his state and federal constitutional equal protection rights. Again, we disagree.
Defendant argues Evidence Code section 1109 unconstitutionally removes persons accused of certain domestic violence offenses from protection against character evidence in the form of prior acts of domestic violence, creating a disparate treatment of them under our criminal laws in violation of their equal protection rights under strict scrutiny analysis. He further argues this violation is particularly evident when “applied to a defendant who stipulates he committed an unlawful homicide.”
Defendant’s analysis is flawed because, as the People point out, “[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530.) “If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) Defendant makes no real effort to demonstrate that he is similarly situated to a group that receives disparate treatment. As the People point out, an equal protection challenge to Evidence Code section 1109 has already been rejected. “On its face, [Evidence Code] section 1109 treats all defendants charged with domestic violence equally; the only distinction it makes is between such domestic violence defendants and defendants accused of other crimes. Neither the federal nor the state constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1311 [rejecting an Equal Protection challenge to Evid. Code, § 1109].) Defendant’s claim lacks merit in the absence of a showing of disparate treatment by a similarly situated group. We need not address the remainder of the parties’ equal protection arguments in light of our conclusion.
4. Defendant’s Confrontation Claims
Defendant also challenges the court’s admission into evidence of Maria’s out-of-court statements to police regarding his 2003 assault on her as inadmissible hearsay in violation of his constitutional confrontation rights pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
The trial court admitted Maria’s 911 call to police on the day of the September 2003 assault, her statement to an officer outside her home some minutes after this call, and her tape-recorded interview with a police inspector three days later. The trial court found Crawford inapplicable to this evidence based on a theory of forfeiture by wrongdoing, as set forth by our state Supreme Court in People v. Giles (2007) 40 Cal.4th 833. However, after trial, in Giles v. California (2008) 554 U.S. 353, the United States Supreme Court rejected this theory in the absence of evidence that the defendant killed the victim in order to prevent the victim from testifying, which evidence is absent here.
“Where testimonial evidence is at issue, ... the Sixth Amendment demands... unavailability and a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at p. 68.) The Supreme Court has held that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 [holding victim’s out-of-court identification of defendant to a 911 operator while the subject events were ongoing was not testimonial].)
The People respond that Maria’s 911 call and statement to police at the couple’s home, the scene of the assault, on September 12, 2003, although hearsay, were properly admitted pursuant to Evidence Code section 1240 as spontaneous statements made by Maria while under the stress of excitement caused by the assault. The People argue the statements did not implicate the prohibitions discussed in Crawford because they were nontestimonial, made in the course of an ongoing emergency as allowed in Davis v. Washington. We agree.
Our Supreme Court relied on Davis in People v. Cage (2007) 40 Cal.4th 965 to hold that statements to an emergency room physician regarding the immediate medical situation were nontestimonial. It concluded the confrontation clause is concerned solely with hearsay statements that are “are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial”; such a statement, even if not sworn to under oath, “must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony, ” and “have been given and taken primarily... to establish or prove some past fact for possible use in a criminal trial.” (Id. at p. 984.) The statement’s purpose is to be determined “ ‘objectively, ’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.” (Ibid.) “[S]ufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses, ” and “statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency....” (Ibid.)
Applying these considerations to the present case, Maria’s 911 call was plainly nontestimonial. She told the operator defendant was still beating her and still was in the house, and pleaded for help. The trial court characterized Maria as sounding “desperate, frightened, out of breath” and “struggling to express herself, ” and we have no reason to conclude she was otherwise.
Maria’s statement to Officer Joshua Olson at her home minutes later also was nontestimonial. Olson was responding to Maria’s 911 call, and found defendant outside the house and Maria inside, disheveled and crying. She told Olson that defendant had grabbed her by the shoulders, thrown her face-first into the headboard of a bed, climbed on top of her, and choked her, and that she feared for her and her children’s safety. Obviously, the primary purpose of her statements was to assist Olson to determine what to do to resolve the ongoing emergency, such as arrest defendant.
It is equally apparent, however, that the trial court improperly admitted Maria’s out-of-court testimonial statements to the police investigator three days later, on September 15, 2003 under a theory of forfeiture that the United States Supreme Court in Giles v. California, supra, 554 U.S. 353has held is not the law, as the People concede. Nonetheless, much of what Maria said then was redundant of her previous statement to Olson at the scene of the assault. She did add some details, saying an argument between her and defendant about money had led to his attack on her, and defendant grabbed a chair and tried to hit her with it during the attack, but put it down after she screamed. She could not scream when he choked her, and her throat was sore the next morning. However, these details added little to the seriousness of the facts regarding defendant’s assault of Maria.
Furthermore, any error was harmless. Defendant’s conviction for second degree murder was almost certainly based on his statements in the September 2004 police interviews, as demonstrated by the court’s focus on them in its explanation of the evidence supporting its reduction of the verdict. The 2003 statement that was improperly admitted added little to the details Maria provided on the day of the assault that were properly admitted; notwithstanding defendant’s argument to the contrary, the fact that Maria added that defendant attempted to hit her with a chair was hardly prejudicial in light of her previous comments about his banging her head against a headboard and efforts to choke her. Also, as we will discuss, the evidence of provocation sufficient to justify a voluntary manslaughter verdict was very weak. Whether evaluated under the federal or state standard for harmless error (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836), any improper admission of Maria’s statements to the police inspector was undoubtedly harmless.
5. The Trial Court’s Jury Instructions
Defendant next argues the trial court’s jury instruction regarding the prior domestic violence evidence improperly included language that allowed jurors to infer intent, malice, and the absence of provocation based on evidence that was not relevant nor admissible on these issues, thereby violating his state and federal constitutional rights to due process and a fair trial. His argument lacks merit.
The trial court instructed the jury consistent with CALCRIM No. 852 regarding its consideration of the prior acts of domestic violence in relevant part as follows:
“If you decide that the defendant committed the prior domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit further acts involving domestic violence, as charged here. If you conclude that the defendant committed the previous domestic violence, that conclusion is only one factor to consider along with all the other evidence. Prior domestic violence is not sufficient by itself to prove that the defendant is guilty of murder or manslaughter. The People must still prove each element of the charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.
According to defendant, “[t]he instruction gave the propensity evidence a significant predictive tenor on issues like intent or provocation which was unfounded.” He contends that the propensity evidence was only relevant “at most” to show the undisputed actus reus here. By giving the instruction, he argues, the trial court reduced the prosecution’s burden of proof and encouraged a verdict based on irrelevant propensity evidence, violating his state and federal constitutional rights to due process and a fair trial.
Defendant’s arguments lack merit. As we have discussed, the propensity evidence was probative of legitimate, disputed issues the prosecution sought to prove, such as that defendant acted with premeditation and deliberation in his attack on Maria. Also, the court limited the inferences that could be drawn from the evidence by instructing the jury that “[p]rior domestic violence is not sufficient by itself to prove that the defendant is guilty of murder or manslaughter. The People must still prove each element of the charge beyond a reasonable doubt.” Defendant fails to explain why the court erred in light of these measured instructions, the circumstances of the charged crime, and the prosecution’s theories. Given that we conclude defendant’s arguments about instructional error lack merit, we do not address the parties’ other arguments, such as regarding forfeiture and harmless error.
IV. Expert Witness Testimony
Defendant next argues the trial court violated his statutory and constitutional rights when it ordered, at the People’s request, that he could only present expert testimony about his mental condition if he submitted to an examination by the People’s expert. The People concede that, pursuant to a subsequent California Supreme Court decision, Verdin v. Superior Court (2008) 43 Cal.4th 1096 (Verdin), the trial court’s ruling was incorrect regarding defendant’s statutory rights, but argue defendant forfeited any appellate claim based on Verdin because he withdrew presentation of his expert testimony after the trial court’s ruling, and that his constitutional rights were not violated. We conclude the People’s forfeiture argument is correct.
Before trial, the People moved for an order compelling defendant to submit to a psychological examination by their psychiatric expert because defendant was expected to proffer a psychiatric defense. Defendant opposed the motion, claiming the proposed order violated his rights under section 1054, et seq. and the Fifth Amendment of the federal Constitution. He also argued any mental examination ordered should be limited. The court granted the People’s motion, subject to certain limitations. Defendant withdrew his expert testimony, and the People withdrew their examination request.
As defendant asserts and the People concede, the trial court’s ruling requiring him to submit to a prosecution expert examination was erroneous pursuant to Verdin, supra, 43 Cal.4th 1096, issued after his trial. In Verdin, our Supreme Court held that trial courts’ statutory authority to order discovery in criminal cases did not authorize them to compel mental examinations by prosecution experts. (Id. at pp. 1106-1109.)
As noted by our Supreme Court in People v. Gonzales (June 2, 2011) 2011 Cal. LEXIS 5437 *67, footnote 15, “[t]he Legislature promptly responded to Verdin by enacting section 1054.3, subdivision (b), which authorizes courts to order examination by a mental health expert retained by the prosecution whenever a defendant places his or her mental state at issue through expert testimony.”
As for their forfeiture argument, the People acknowledge there is no case directly on point, but argue the rationale relied upon in People v. Collins (1986) 42 Cal.3d 378 (Collins) should govern here. In Collins, the trial court ruled that if the defendant testified at his trial, the prosecution could introduce a prior felony conviction for impeachment purposes. (Id. at pp. 382-383.) The defendant chose not to testify, was convicted, and appealed. (Ibid.) Our Supreme Court, based on Luce v. United States (1984) 469 U.S. 38, held that the failure to testify resulted in forfeiture of such an appellate claim for three reasons. (Collins, supra, at pp. 384-385.) First, a reviewing court could not intelligently weigh the probative versus prejudicial value of the impeachment evidence when its precise nature was unknown (id. at p. 384); second, any claimed harm was “ ‘wholly speculative’ ” because the prosecution’s use of the impeachment evidence was unknown and the trial court retained discretion throughout the proceedings to change its ruling; and, third, assuming the trial court’s ruling was erroneous, a reviewing court could not gauge the error’s prejudicial effect without a fully developed record. (Id. at pp. 384-385.)
The first of these three reasons is not relevant to the present case. However, the last two apply with equal force. Defendant decided not to present his expert testimony and, as a result, a prosecution expert did not examine him nor testify in rebuttal. Therefore, we cannot determine the content or impact of either side’s testimony, or whether the trial court would have altered the contours of its pre-trial ruling in the course of the trial. Any harm from the court’s ruling, then, is “ ‘wholly speculative.’ ” (Collins, supra, 42 Cal.3d at p. 384.) Also, assuming the trial court erred, we cannot ascertain the prejudicial effect of the error without a more developed factual record. In other words, any attempt by this court to assess the possible impact of expert opinion that was never presented (and, in the People’s case, never formed) would be guesswork.
Defendant argues we can determine what his expert testimony would have been because his experts’ findings were presented at length in preliminary hearings. This is not the case. At the very least, the expert testimony certainly could have changed after the prosecution’s examination of defendant and any further statements by him in the course of that examination, and because of the prosecution’s unknown cross-examination questions and presentation of its own expert testimony.
Defendant also cites People v. Neal (2003) 31 Cal.4th 63, 87 in arguing that the trial court’s erroneous ruling resulted directly in the withdrawal of expert witnesses, thereby plainly prejudicing him. Neal involved an erroneous trial court ruling that admitted into evidence two illegally obtained confessions in violation of defendant’s constitutional rights, impelling defendant to take the stand to address them. (Id. at pp. 86-87.) Our Supreme Court rejected the People’s harmless error argument in part because but for the illegal confessions, the defendant would not have testified and been subjected to the prosecution’s cross-examination. (Id. at p. 87.) This is distinguishable from the present case, in which it is not clear how the testimonial evidence would have unfolded at trial, the effect it would have had upon the jury, or what harm or prejudicial effect the trial court’s purported error would have caused.
Defendant also asserts the trial court’s ruling, although it has its “genesis” in state law, violated his right to due process and a fair trial, to present a significant defense, to effective assistance of counsel, to compulsory process, and to confront evidence against him under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, sections 7, 15, and 16 of the California Constitution. He asks this court to consider his constitutional claims based on People v. Brown (1996) 42 Cal.App.4th 461, 468-470, which held that a defendant need not testify to preserve a claim of error involving a pure question of law concerning a fundamental constitutional right. (Id. at p. 471.) As our discussion has already indicated, however, his claim does not involve a pure question of law, and there is great uncertainty regarding the content and impact of the testimony that would have been presented by both sides at trial. Therefore, we decline to consider these constitutional claims. Also, in light of our conclusions, we do not address the parties’ debate over whether or not any error was harmless.
V. The Voluntary Manslaughter Instruction and Prosecutorial Misconduct
Defendant next argues the trial court’s voluntary manslaughter instruction to the jury, although consistent with CALCRIM No. 570, nonetheless violated his constitutional rights to due process, a fair trial, and the jury’s determination of all issues. He argues the court misled the jury by not instructing that the intent to kill or conscious disregard for life elements of voluntary manslaughter could be mitigated, and did not have to be negated, by provocation, and by referring to how a reasonable person “would react in the same situation, ” thereby suggesting, incorrectly, that provocation must be so severe as to justify the act of killing. He claims this suggestion was compounded by prosecutorial misconduct in closing argument that the court failed to cure despite defense objections. We conclude defendant’s arguments lack merit.
A. The Intent or Conscious Disregard Element
We find no merit in defendant’s argument that the court erred by failing to instruct that the intent to kill or the conscious disregard for life element could be mitigated, and did not have to be negated, by provocation. Voluntary manslaughter requires either the intent to kill or the conscious disregard for life. (People v. Blakely (2000) 23 Cal.4th 82, 88-91.) Although the court’s instruction did not expressly refer to these elements, it was not reasonably likely to mislead the jury.
The court’s voluntary manslaughter instruction explained that “[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.” The court further instructed that the necessary provocation for voluntary manslaughter results in “the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment, ” and is such that it “would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” The court further instructed: “The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.”
The court instructed the jury in relevant part: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
Defendant did not object to the court’s instruction. He asked for a special instruction drawn from People v. Najera (2006) 138 Cal.App.4th 212 to the effect that the defendant’s response or acts need not be reasonable to show manslaughter, as the issue is whether a reasonable person’s mental state would have been obscured by passion, not whether what defendant did was reasonable. The court denied this request.
Defendant’s argument amounts to a claim of instructional ambiguity, which we review by considering the charge as a whole to determine whether there is a “reasonable likelihood” the jury applied the challenged instruction in a way that violated defendant’s constitutional rights. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Young (2005) 34 Cal.4th 1149, 1202.) Here, where the jury was instructed to consider the instructions together, “ ‘ “[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instruction as a whole.” ’ ” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
Here, as the People argue, the instruction, read in the context of the entire charge to the jury, indicated sufficiently the intent element of voluntary manslaughter. The court instructed the jury that voluntary manslaughter applied to a “killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.” The court instructed the jury consistent with CALCRIM No. 520 that murder was an unlawful killing with “malice aforethought, ” that being an intent to kill or to intentionally and knowingly commit an act dangerous to life and with conscious disregard for life. (CALCRIM No. 520.) Furthermore, the court instructed the jury consistent with CALCRIM No. 252’s instruction regarding specific intent crimes that to be guilty of first degree and second degree murder, “a person must not only intentionally commit the prohibited act but must do so with a specific intent or mental state.” (CALCRIM No. 252.)
Defendant argues the language relied on by the People, “killing that would otherwise be murder, ” was too equivocal for lay jurors, who do not know that provocation supporting voluntary manslaughter does not need to negate (rather than mitigate) an intent to kill. He contends, based on the jury’s question to the court about “premeditation... versus heat of passion, ” discussed in part VI, post, that the jurors inferred from an ambiguous instruction that murder was not reduced to voluntary manslaughter unless defendant acted with something short of an intent to kill or conscious disregard as the result of provocation, which all but ensured jurors would find defendant guilty of murder because he confessed to police that he intended to kill Maria.
As the People point out, the Third Appellate District has already rejected a very similar argument in People v. Genovese (2008) 168 Cal.App.4th 817. Genovese involved a challenge to a similar voluntary manslaughter instruction based on CALCRIM No. 571 as defective for failing to expressly instruct the jury that intent to kill or conscious disregard for life was an essential element of voluntary manslaughter. (Genovese, at pp. 828-829, 831.) The appellate court rejected the argument because CALCRIM No. 571’s reference to a killing that would “otherwise be murder” incorporates the element of intent to kill or conscious disregard for life. (Genovese, at pp. 828-829, 831.) The court reasoned that “[t]he killing could not ‘otherwise be murder’ unless the jury found defendant intended to kill the victim or acted with conscious disregard for human life, and the jury was so informed” by the charge, read as a whole. (Id. at pp. 831-832.) “Thus, the instructions did let the jury know that a killing in... [the] heat of passion..., whether intentional or in conscious disregard of life, is voluntary manslaughter.” (Id. at p. 832.) We agree with Third Appellate District’s reasoning and conclusion, and follow it. Therefore, we reject defendant’s “intent” argument.
B. The Provocation Required
We also reject defendant’s argument that the trial court’s voluntary manslaughter instruction improperly suggested the provocation required for manslaughter is that which would lead an ordinary person to kill.
As defendant correctly points out, cases have found that jurors may wrongly be led to believe that voluntary manslaughter requires a provocation so severe as to justify the act of killing, or at least that results in an objectively reasonable act under community standards. (People v. Najera, supra, 138 Cal.App.4th 212 [prosecutor’s argument improperly suggested this theory].) “The focus is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.” (Id. at pp. 223-224.) However, we conclude the court’s instruction correctly stated the standard.
The court’s instruction correctly defined the objective component of provocation. It explained that the necessary provocation results in “the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment, ” and is such that it “would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” The court further instructed: “The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.”
Nonetheless, defendant argues that the court, by referring in the instruction to “how such a person would react, ” was telling the jury that the key issue was how defendant reacted, and the reasonableness of his reaction. We do not agree. It is apparent from the court’s instruction that it was referring not to defendant’s conduct, but to whether the provocation caused him to “act rashly and without due deliberation, that is from passion rather than from judgment, ” which the court had just discussed.
Defendant further argues the court did not sufficiently correct the prejudice caused by the prosecutor’s closing argument statements purportedly emphasizing the reasonableness of defendant’s conduct, not passion, which statements were prosecutorial misconduct. Defendant argues that the court’s verbal instructions to the jury in response to defense objections were insufficient. He argues that the court’s “[f]ailure to give a written version of [defendant’s offered special instruction] or otherwise correct the prosecutor’s misstatements of the elements of manslaughter (reasonable passion versus reasonable act) likewise was error.” He also contends that “[a]t a minimum, the court needed to sustain at least one of the defense objections to make the point clear for jurors.”
We disagree with this argument as well. As the People note, when the defense objected, the court responded by verbally instructing the jury with the correct legal standard, including by using language consistent with the special instruction defendant had requested. “Jurors are presumed to follow a court’s admonitions and instructions.” (People v. Houston (2005) 130 Cal.App.4th 279, 312; People v. Bradford (1997) 15 Cal.4th 1229, 1337 [jury presumed to have followed the trial court’s admonition rather than counsel’s argument].) Although the court did not supplement its written instructions, again, its instructions set forth the correct legal standard.
C. Prosecutorial Misconduct or Error
Defendant argues that the prosecutor engaged in misconduct, or at least erred, by repeatedly encouraging the jury to consider the reasonableness of defendant’s actions rather than his passion in reaction to any provocation, denying defendant due process and a fair trial in violation of the state and federal Constitution. We disagree. The prosecutor’s statements, to the extent they were misconduct or in error, were harmless, in light of the prosecutor’s overall argument to the jury, the court’s various instructions, and the lack of evidence of the requisite provocation.
1. The Proceedings Below
Defendant challenges a number of the prosecutor’s statements in closing argument and rebuttal.
The prosecutor stated in closing argument that provocation requires a passion “so intense that they can’t mean to do what they are doing.” After defendant objected, the court asked the prosecutor if this was his opinion on the law of manslaughter and, after the prosecutor answered affirmatively, told the jurors to ask if they had any questions about the instructions.
Later, the prosecutor, referring to the voluntary manslaughter instruction, said that the key was what “[w]ould have caused a person of average disposition to do it.” When defendant objected that the comment misstated the law, the court said it did not think the comment did “in the context of [the prosecutor’s] argument regarding provocation. Provocation leading the average person to act rashly and have their judgment obscured. With that understanding, go ahead.”
The prosecutor then told the jury that calling someone chicken “wouldn’t explain what adults do.” A short time later, he said, “you’re the ones who decide whether a person of ordinary sensibility would be provoked by calling a chicken in such a fashion or saying they had no balls in such a fashion that it results in another human being being dead.” The defense objected that “[i]t’s not the result that is the test in this. It’s whether the person acted rashly, not what was done after they acted rashly.” In response, the court instructed the jury as follows, consistent with a portion of defendant’s rejected special instruction:
“[T]he focus is on the provocation and the surrounding circumstances and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to provocation and the reasonableness of the response is not relevant.”
After this instruction, the prosecutor continued, “So, you folks are the arbiters of whether a reasonable person would behave like [defendant] behaved, given whatever the claimed provocation is going to be.” There was no objection to this comment.
The prosecutor also said: “The instruction does not tell you in that third element that the provocation would have caused the person of average disposition to kill someone. Because, as the judge further instructed you, the focus is on the provocation and the effect of the provocation on the mind of the person, not what the person did afterwards.... [¶]... [¶] The surrounding circumstances need to be focused on to determine whether they were sufficient to cause a reasonable person to act rashly. How the person response to the provocation, how the person reacts once they’re acting rashly isn’t the issue.”
In rebuttal, the prosecutor made other relevant statements, included that “[t]he issue is whether the provocation was sufficient to justify the rage, ” and that a person cannot use rage to “justify killing another human being”. He also told the jury: “You folks are the arbiters of whether the provocation reasonably should lead to these things, ” quoted from the court’s jury instruction, and said that defendant was “ ‘not entitled to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient.’... ‘In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.’ ”
2. Analysis
We do not necessarily agree that all of the prosecutorial statements identified by defendant were in error. The prosecutor may well have been referring to defendant’s state of emotions when commenting on his reaction to the provocation. Furthermore, the prosecutor plainly told the jury the correct legal standard regarding provocation at one point. Nonetheless, a few of the prosecutor’s statements focused incorrectly on whether a reasonable person would have acted as defendant did in the same situation, thereby improperly suggesting the jury consider the reasonableness of defendant’s conduct in response to provocation, as the People concede. Most prominently, the prosecutor encouraged the jury to consider “whether a person of ordinary sensibility would be provoked by calling a chicken in such a fashion or saying they had no balls in such a fashion, that it results in another human being being dead, ” and said “you folks are the arbiters of whether a reasonable person would behave like [defendant] behaved, given whatever the claimed provocation is going to be.” (Italics added.) This was improper.
In evaluating the impact of the prosecutor’s improper statements, we bear in mind that we must presume the jury followed instructions given to it by the court. (People v. Najera, supra, 138 Cal.App.4th at p. 224; People v. Boyette (2002) 29 Cal.4th 381, 436.) Defendant does not cite to anything in the record that establishes the jury did not do so. We conclude the court’s instructions rendered any misconduct or misstatement by the prosecutor harmless for three reasons.
First, the court instructed the jury, “You must follow the law as I explain it to you.... If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” The court further instructed, “Do not assume just because I give a particular instruction that I am suggesting anything about the facts.”
Second, the court’s voluntary manslaughter instruction was correct in its statement of the law, and not ambiguous nor misleading, as we have discussed.
Third, as we have also discussed, the court provided curative instructions to some of the statements by the prosecutor, in response to defense objections. (See People v. Bradford, supra, 15 Cal.4th 1229, 1337; People v. Houston, supra, 130 Cal.App.4th at p. 311.)
The prosecutor’s improper statements were also harmless because the evidence of provocation sufficient to justify voluntary manslaughter was very weak. We fail to see how a reasonable person would be sufficiently provoked by Maria’s purported verbal statements that defendant was “chicken” and had “no balls, ” even in the context of her instruction earlier in the day to their son to go to school so that he did not grow up to be like his father, her purported prior taunts, and the couple’s ongoing marital difficulties.
In our independent research, we have reviewed People v. Cole (2004) 33 Cal.4th 1158, which rejected the defense argument that the trial court should have instructed the jury on voluntary manslaughter in circumstances very similar to those in the present case. Cole and his long-time girlfriend, Mary Ann, lived together and had a “tumultuous relationship, ” bickering and arguing often; “defendant was twice convicted of cohabitant abuse” against Mary Ann, and was very possessive of her. (Id. at p. 1171.) Mary Ann told a neighbor she was planning to move out without defendant. (Ibid.) The next night, defendant set fire to their bedroom, causing burns to Mary Ann that resulted in her death. (Id. at pp. 1172-1174.) Defendant approached police at the scene of the fire and told them he set fire to the house and that he was “angry” at his girlfriend and “wanted to kill her”; he “appeared to be coherent, did not seem to be excited or injured, and did not smell of alcohol.” (Id. at p. 1172.) He said he left Mary Ann in a bar earlier that night after she cursed him. When he came home, she woke up and “called him a ‘no good mother fucker, ’ and asked him where he had been. (Id. at p. 1173.) Defendant said he went berserk after Mary Ann said, “ ‘one of these fuckin’ days I’m going to burn you to fuckin’ bits and I’m going to cut your goddamn heart out.’ Mary Ann also said, ‘if you lay down on that goddamn couch, ... I’ll put a butcher knife in your ass.’ ” (Ibid.) The Supreme Court found that in the context of their “tumultuous” relationship, the couple’s arguing “was no different than on the many other occasions” and was insufficient to justify a voluntary manslaughter instruction based on heat of passion. (Id. at p. 1216.)
The People cite to another California Supreme Court case that rejected the argument that a verbal taunt was sufficient provocation to merit a voluntary manslaughter instruction. In People v. Manriquez (2005) 37 Cal.4th 547, the court held that the objective standard of provocation was not met where the victim, a young man who encountered defendant Manriquez in a bar, called Manriquez a “mother fucker” and taunted him, repeatedly asserting that, if Manriquez had a weapon, he should take it out and use it. (Id. at p. 565, 586.) The Supreme Court found these statements “plainly... insufficient to cause an average person to become so inflamed as to lose reason and judgment.” (Id. at p. 586.)
Similarly, in People v. Najera, supra, 138 Cal.App.4th 212, the court also concluded defendant was not entitled to a voluntary manslaughter instruction because of the lack of sufficient provocation evidence. Commenting on the victim’s calling defendant Najera a “faggot, ” the court stated: “That taunt would not drive any ordinary person to act rashly or without due deliberation and reflection. ‘ “A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.” ’ ” (Id. at p. 226.)
The Supreme Court followed its holding in Manriquez in People v. Gutierrez (2009) 45 Cal.4th 789, which involved verbal taunts in the context of a broken personal relationship. The victim was defendant Gutierrez’s ex-girlfriend and the mother of his child. (Id. at p. 797.) The court rejected Gutierrez’s argument that a voluntary manslaughter instruction should have been given based on the evidence that, before he took his son from her house, he told her to “ ‘[g]et off me, you f... ing bitch, ’ and that she ‘cuss[ed] back at’ him, ” scratched at his chest, kicked him in the leg, and grabbed his shirt. (Id. at pp. 826-827.)
These holdings are instructive here, regardless of whether or not defendant was subjectively provoked. Maria’s purported statements to defendant in the hours before he killed her, and their ongoing disputes and difficulties, were very weak, if any, evidence of the provocation necessary to justify voluntary manslaughter, rendering the prosecutor’s statements harmless.
As the Supreme Court discussed in People v. Cole, supra, 33 Cal.4th 1158, it held in People v. Berry (1976) 18 Cal.3d 509, that evidence of a victim’s two-week period of provocative conduct toward her new husband, which included her alternating between verbal taunts about an affair with another man and acts that sexually aroused her husband, was sufficient to require a voluntary manslaughter instruction. (Cole, at pp. 1216-1217.) The Cole court, however, easily distinguished this evidence from the facts it was considering (ibid), and it is easily distinguishable from the facts of this case. Defendant’s statements indicated that he and Maria were in a long-standing and tumultuous marriage that included past conflicts and purported taunts, and there was no evidence of sexual dynamics between them in the days before, or on the morning of, her death.
Thus, we conclude the prosecutor’s statements were harmless for multiple reasons, whether evaluated under the state or federal standard for harmless error (People v. Watson, supra, 46 Cal.2d at p. 836[state]; Chapman v. California, supra, 386 U.S. at p. 24 [federal]), an issue debated by the parties. In light of our conclusions herein, we do not address the other arguments raised by the parties regarding the court’s instructions or the prosecutor’s conduct, including defendant’s alternative ineffective assistance of counsel argument.
VI. The Court’s Response to the Jury’s Note
Defendant next argues that the trial court’s response to the jury’s note asking about contradictions in his “testimony” was inadequate, unbalanced, and coercive of a murder verdict, thereby denying him his constitutional rights to due process, a fair trial, and the right to a jury determination of all issues. We find no merit in his arguments.
A. The Proceedings Below
During deliberations, the jury sent out a note which read: “There are many contradictions in [defendant’s] testimony between premeditation and deliberation and weighing the consequences versus heat of passion. Do we have to rule in the defendant’s favor when there is contradiction in his testimony.” The court answered after conferring with counsel, stating that its answer was in keeping with the parties’ discussion. It responded “no” to the jury’s question, and instructed the jury at length, including by referring to its previous instructions. It stated:
“The jury should not rule in the defendant’s favor or on anyone’s favor in this case because of contradictions alone.
“However, the defendant is entitled to a verdict of acquittal, finding of not guilty, if the evidence does not show beyond a reasonable doubt as to murder in the first degree that he premeditated and deliberated as to that form of homicide.
“Contradictions in the evidence are a factor that the jury can take into account in determining whether or not murder in the first degree by way of premeditation and deliberation has been proven beyond a reasonable doubt.”
The court further instructed the jury that it was its task to judge the credibility and believability of the evidence from witnesses, explained that the instructions for each crime explained the intent or mental state required for that crime, and discussed the role of circumstantial evidence in determining a defendant’s mental state. The court then told the jury:
“I’m going to read from CALCRIM 522, provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. [¶]... If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.
“Also, consider the provocation in deciding whether defendant committed murder or manslaughter.”
The next day, the court supplemented its response as follows: “The jury should not rule in the defendant’s favor or anyone’s favor... because of contradictions alone. [¶] However, after an impartial comparison and consideration of all the evidence received throughout the trial the defendant’s contradictions referred to in your note may create reasonable doubt regarding murder in the first degree.”
Defense counsel said the court’s response, combined with the answer the day before, was acceptable. However, later that day, he moved the court to instruct the jury with CALJIC No. 8.72, 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 the doubt and find it to be manslaughter, rather than murder.’ ” He also asked the court to reread the last paragraph of CALCRIM No. 570, as follows: “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.”
The court denied defendant’s motion to instruct the jury further for a number of reasons, including that the jury’s question the day before was focused on the issue of premeditation versus deliberation, and that the court’s answers properly focused on that inquiry.
B. Analysis
Section 1138 states that “[a]fter the jury have retired for deliberation, ... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” It “imposes a ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) However, “[w]here... the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (Id. at p. 1213.)
Defendant does not argue that the trial court gave instructions that were incomplete or wrong as a matter of law. Accordingly, we apply an abuse of discretion standard to our review of the court’s responses to the jury’s note. (People v. Gonzalez, supra, 51 Cal.3d at p. 1213.)
We conclude the trial court did not abuse its discretion. Defendant correctly points out that, “in giving additional instructions to a jury, particularly in response to inquiries from the jury, a court must be especially careful not to give an unbalanced charge.... [T]he particular significance of a supplemental charge when a jury has been unable to reach a decision on the basis of all it has heard up until that time demands an exacting sensitivity on the part of the trial court to give an accurate and balanced instruction.” (United Sates v. Meadows (5th Cir. 1979) 598 F.2d 984, 990, citing Bollenbach v. United States (1946) 326 U.S. 607, 612.) However, defendant fails to establish that the court’s response was inappropriate in light of the jury’s focus, as expressed in its note.
Defendant inaccurately characterizes the court’s responses as “unbalanced and suggestive because they only tied ‘contradictions’ and reasonable doubt to the degree of murder, not manslaughter.” In fact, the court included instructions about manslaughter in its response. The jury’s note expressly focused on “many contradictions in [defendant’s] testimony between premeditation and deliberation and weighing the consequences versus heat of passion.” The court, along with its original instructions about the evaluation of witness and circumstantial evidence, responded that, pursuant to CALCRIM No. 52, “provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter, ” and elaborated on this point.
Defendant appears to be most critical of the court’s additional instruction the next day, when the court indicated that the contradictions could cast reasonable doubt on the first degree murder charge, but declined to instruct further as requested by defendant regarding reasonable doubt of murder altogether. The court acted within its discretion to decline this further instruction in light of its response the day before, and the fact that its additional “reasonable doubt about first degree murder” instruction did not direct the jury to second degree murder rather than manslaughter. Given that its instruction the day before correctly indicated that provocation may be considered with regard to either second degree murder or provocation, we see nothing inadequate, unbalanced, or coercive of a murder verdict in the court’s approach.
Furthermore, the court’s further instructions were in addition to its previous, standard jury instruction that “[t]he People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.
Defendant fails to establish that the court abused its discretion by refusing the defense request. In light of our conclusion, we do not address the parties’ debate over the standard to apply to any error made, or whether such an error requires reversal here.
VII. Motion for New Trial Based on Juror Misconduct
Defendant claims the trial court deprived him of his state and federal constitutional rights to due process, a fair trial, and an impartial jury when it denied his motion for a new trial based on misconduct by Juror H.C., for purportedly concealing during voir dire that she had been a victim of spousal abuse in the past. We conclude the court did not err because there was no evidence the juror engaged in misconduct.
Juror H.C. was identified at the new trial hearing by her number, 1632225, which is also the number used in the voir dire transcript.
A. The Proceedings Below
1. Voir Dire
During voir dire, the court poses several general questions to 24 members of a jury panel that included H.C. The court instructed the panel to listen to the questions and to respond if appropriate, and invited anyone to come to the sidebar to discuss anything more confidentially with the court and counsel, if needed. The court told the panel that the People were alleging defendant, “in the course of an argument, murdered his wife by cutting her throat.” It asked if any of the panel members felt that he or she “could not give the defendant a fair trial because of the nature of the charges against him.” H.C. did not indicate that was the case, although other jurors raised their own experiences with domestic abuse and violence. The court also asked if the panel members had any interest in the case other than that justice be done and if they were capable of following the law and asking questions if necessary to clarify any confusion. Again, H.C. did not respond in any way that suggested she could not perform juror duties.
The court then indicated it was going to pose a series of questions to the panel, take a recess, and then ask the panel for responses. The court stated in relevant part:
“Have any of you or any member of your family or any of your close friends ever been arrested for or accused of or charged with an offense similar to the offense in this case? That would mean any serious or violent crime or any offense involving violence inside the home commonly called domestic violence.
“If there was any domestic violence, domestic abuse in your home or if you know about that regarding a close friend or family member, we would like to know about it.
“Now, another question is whether you or any member of your family or close friends ever been a complaining witness or a victim in a case of this kind, the complaining witness in a case of domestic violence or abuse inside the home or a witness to such offense.
The court immediately took a short recess without asking for responses. When the court reconvened voir dire, it asked the following question:
“I want a show of hands have any of you who have had yourself, your family, close friends accused of or arrested for an offense similar to this or whether [you] or your friends or people in your family have been complaining witnesses in a serious violence case or in a case like this involving domestic violence or abuse inside the home.”
H.C. did not respond to this question, or otherwise disclose anything during voir dire regarding any acts of domestic violence committed against her.
2. Defendant’s Claim of Juror Misconduct
After the jury reached its verdict, defendant filed a supplemental motion for a new trial based in part on H.C.’s purported concealment of her past experience as a victim of domestic violence. In support of his motion, defendant proffered a declaration by Juror W.S., who stated that “during jury deliberations, juror [H.C.] disclosed that, in the past, she had been physically abused by her husband. She stated that she changed her behavior because she felt her husband would be driven to homicide if she didn’t change.” Defendant contended H.C. concealed this information during voir dire, and that it was prejudicial to the trial’s outcome. The People opposed the motion, without proffering any additional evidence. The People requested that the trial court, if it was inclined to grant the motion, first hold an evidentiary hearing to determine if H.C. was in fact biased, but defendant made no such request.
The trial court conducted a hearing on the motion, at which defense counsel conceded that H.C. did not fail to answer a direct question about past abuse during voir dire. Nonetheless, the defense argued, H.C. had failed to offer any response despite pointed court voir dire asking all jurors to report any potential bias due to domestic violence in their lives. Counsel argued that the fact that H.C. raised her past abuse during deliberations showed that there was a serious risk of bias, particularly because she stated during deliberations that she changed her behavior with her husband because she thought her husband would otherwise “be driven to homicide.” The prosecutor argued H.C. probably never offered her history because she did not think it would bias her.
The court, after considering argument, W.S.’s declaration, and the transcript of voir dire, denied defendant’s motion. It stated: [¶] “I don’t see anything in the record that shows [H.C.] actively concealed that her spouse abused her, particularly in her alleged comments about spousal abuse, which apparently one juror claims she made during deliberations. [¶] They do not without speculation imply that she believed the defendant here was automatically guilty or tended to be guilty. There is no indication that her personal experience of spousal abuse influenced her decision regarding [defendant].”
B. Analysis
1. Intentional Misconduct
A criminal defendant has a constitutional right to a trial by impartial jurors. (U.S. Const., amends. VI and XIV; Cal. Const. art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722; In re Hitchings (1993) 6 Cal.4th 97, 110.) “An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘ “capable and willing to decide the case solely on the evidence before it.” ’ ” (In re Hamilton (1999) 20 Cal.4th 273, 294.)
“[D]uring jury selection the parties have the right to challenge and excuse candidates who clearly or potentially cannot be fair. Voir dire is a crucial means for discovery of actual or potential juror bias. Voir dire cannot serve this purpose if prospective jurors do not answer questions truthfully. ‘A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct.’ ” (In re Hamilton, supra, 20 Cal.4th at p. 295.)
When evaluating a motion for a new trial based on jury misconduct, a court must determine whether evidence supporting the motion is admissible, establishes misconduct, and, assuming misconduct, whether it is prejudicial. (People v. Von Villas (1992) 11 Cal.App.4th 175, 255.) Once misconduct is established, prejudice is presumed. (People v. Marshall (1990) 50 Cal.3d 907, 949.)
“A trial court has broad discretion in ruling on each of these questions and its rulings will not be disturbed [on appeal] absent a clear abuse of discretion.” (People v. Von Villas, supra, 11 Cal.App.4th at p. 255.) “In evaluating claims of intentional concealment by jurors during voir dire, ‘[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’ ” (People v. Tuggles (2009) 179 Cal.App.4th 339, 371, quoting People v. Nesler (1997) 16 Cal.4th 561, 582.)
Here, substantial evidence supports the trial court’s finding that nothing in the record indicated H.C. “actively concealed that her spouse abused her, particularly in her alleged comments about spousal abuse, which apparently one juror claims she made during deliberations.” The record indicates that the court did not ask the jury to respond to any question that called for such a disclosure.
The only possibilities are the court’s questions to the panel members about bias and certain domestic abuse experiences. Regarding bias, the court asked the panel members if they could give defendant a fair trial in light of the charges against him, if they had any interest in the case other than to see justice be done, and if they were capable of following the law and asking questions if necessary to clarify any confusion. H.C. did not indicate she could not follow these juror obligations. The defense presented nothing to the contrary in support of its new trial motion.
Regarding domestic violence, as defense counsel acknowledged below, the court did not ask a direct question during voir dire about the jurors’ personal experiences with domestic violence. Rather, the court’s question to the jury focused on incidents where the panel members, their family or close friends were accused of or arrested for domestic violence, or where panel members were complaining witnesses “in a serious violence case or in a case like this involving domestic violence or abuse inside the home.” Nothing presented by the defense in support of its motion indicated H.C.’s statements during jury deliberation about her experience with spousal abuse met any of these criteria.
The court’s statements to the jury during voir dire did touch on the panel members’ experiences with domestic violence, but not so broadly as to establish H.C. concealed any information. The court indicated it wanted to know if the panel members or any member of their families or any of their closes friends had “ever been arrested for or accused of or charged with an offense similar to the offense in this case.” The court defined such a similar “offense” as “any serious or violent crime or any offense involving violence inside the home commonly called domestic violence, ” and then said, “If there was any domestic violence, domestic abuse in your home or if you know about that regarding a close friend or family member, we would like to know about it, ” but announced a recess without asking for responses. After the recess, it asked for responses to a question about experience with domestic violence accusations, arrests or “serious violence” cases.
We conclude from the court’s voir dire statements and questions that the court indicated to the jury that it was specifically asking for their disclosure about accusations, arrests, charges, and testimony in “serious violence” cases, and not all personal, unreported experiences with domestic violence. The trial court’s own ruling that H.C. did not actively conceal anything during voir dire necessarily indicates that it found that it did not ask for panel members’ personal, unreported experiences with domestic violence. Substantial evidence supports this implied finding. Therefore, we conclude that H.C.’s failure to disclose any such personal experiences was not intentional misconduct, nor evidence of any bias.
Defendant argues that “there is ample room to infer intentional concealment; the fact [H.C.’s] similar experience and fears of homicidal escalation came out in deliberations suggest this posed a palpable risk of bias that needed to be disclosed during voir dire. Further, the court’s conclusion that a juror’s bringing up her fears of a homicidal husband during deliberations in a case like this could not give rise to prejudicial bias (both against appellant and in sympathy of this fellow juror) is unpersuasive.” These arguments, rather than explain why the court’s findings were not supported by substantial evidence, ask that we reweigh the evidence altogether. We will not do so under a substantial evidence standard of review. (See People v. Martinez, supra, 113 Cal.App.4th at p. 412.)
In light of our conclusion that substantial evidence supports the court’s finding that H.C. did not actively conceal any information called for by the court and, therefore, did not engage in intentional misconduct, we do not address the issue of presumed prejudice.
2. Unintentional Misconduct
The parties also extensively debate whether or not H.C. engaged in unintentional misconduct by inadvertently failing to disclose her personal experience with spousal abuse in response to the court’s “pointed voir dire seeking responses” regarding “domestic violence.” Apparently, defendant believes that, although the court did not directly ask panel members if any of them had personal experience with domestic violence, its statements obligated H.C. to disclose this information nonetheless. Assuming unintentional concealment is a legal ground for granting his motion for a new trial, defendant does not establish that bias on H.C.’s part is apparent from the record. Therefore, we reject his claim.
“There is a serious question whether honest voir dire mistakes can ever form the basis for impeachment of a verdict. [Citations.] In [McDonough Power Equip. v. Greenwood (1984) 464 U.S. 548], a plurality concluded that ‘[t]o invalidate the result of a [lengthy] trial because of a juror’s mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give.’ ” (In re Hamilton, supra, 20 Cal.4th at p. 300.) The California Supreme Court acknowledged this case law and a split among our state appellate courts in declining to comment on whether a juror’s concealment must be intentional to constitute misconduct. (People v. Carter (2005) 36 Cal.4th 1114, 1208, fn. 47.) Nonetheless, the court has also stated the “ ‘ “proper test to be applied to unintentional ‘concealment’ is whether the juror is sufficiently biased to constitute good cause for the court to find under... sections 1089 and [former] 123 that he is unable to perform his duty.” [Citation.] [¶] Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination.’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 644 (italics added).)
Here, the trial court concluded that claims of bias on H.C.’s part were based solely on “speculation, ” and that “[t]here is no indication that her personal experience of spousal abuse influenced her decision regarding [defendant].” The trial court’s conclusion is supported by the record. W.S.’s declaration does not suggest H.C. said or did anything during deliberations suggesting she was biased against defendant. H.C.’s responses, or lack thereof, to the court’s voir dire questions regarding bias indicate further that she believed she was able to act as an impartial juror.
Defendant claims that “[i]ntentional or not, failure to disclose potentially homicidal domestic violence, despite pointed voir dire queries in a case like this, supported a new trial motion based on concealed bias or misconduct.” Again, we conclude the court did not actually ask for the disclosures that are the focus of defendant’s concern, nor do we find support for such disclosures in the legal authorities that defendant cites in support of his proposition. None of the cases he cites involved a circumstance where the trial court did not ask the jury during voir dire about the undisclosed personal history later claimed as the basis for a new trial motion. (See People v. McPeters (1992) 2 Cal.4th 1148, 1174-1175 [finding the trial court did not abuse its discretion in finding that a juror inadvertently neglected to disclose in voir dire dealings with a real estate agent, the victim’s husband who was identified to jurors as a witness in the case, but had no express or implied bias]; People v. Blackwell (1987) 191 Cal.App.3d 925, 929 [juror asked “if she had ever experienced domestic violence, and whether she had ever seen or experienced domestic, and specifically spousal, violence or alcoholism within her family”]; People v. Diaz (1984) 152 Cal.App.3d 926, 930-931, 935 [foreperson’s failure, intentional or not, to disclose she had been a victim of the same crime with which defendant was charged, despite being asked in voir dire if she had every been a victim in a case “of this kind” or if there was anything in her background or mind which might cause the attorneys to choose another juror in her place after hearing questions to another juror about her kind of personal experience, was directly related to potential juror bias, and the presumption of prejudice was not rebutted].)
Defendant also contends that there is ample room to “infer” intentional concealment. However, he does not establish that bias is clearly apparent from the record and, therefore, does not show unintentional concealment. (People v. San Nicolas, supra, 34 Cal.4th at p. 644.) Therefore, we reject defendant’s unintentional misconduct claim.
3. Further Inquiry
Defendant also argues the trial court erred by finding no concealment or risk of bias without further inquiry. He argues that, at a minimum, the matter must be remanded with instruction to conduct an adequate hearing, relying without explanation on People v. Hedgecock (1990) 51 Cal.3d 395, 420- 421, Turner v. Louisiana (1965) 379 U.S. 466, 472-473, and People v. Sanders (1988) 203 Cal.App.3d 1510, 1513.)
Defendant does not establish by these bare citations that the court had a duty to conduct an evidentiary hearing under the circumstances of this case, where the court found no misconduct, defendant’s allegations of bias were based on speculation, and defendant did not request an evidentiary hearing in the trial court. Defendant is not entitled to such a hearing as a matter of right. (See People v. Hedgecock, supra, 51 Cal.3d at pp. 411-414, 415 [defendant submitted affidavits implicating misconduct and sought to subpoena jurors to testify about alleged misconduct; “ ‘such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact’ ”], quoted in People v. Tuggles, supra, 179 Cal.App.4th at p. 380.) Furthermore, it is well-settled that “trial courts should use caution when making inquiries [into possible juror bias] because of the need to protect the sanctity and secrecy of jury deliberations.” (People v. Bennett (2009) 45 Cal.4th 577, 624.) Therefore, defendant’s “further inquiry” argument is unpersuasive.
In light of our ruling, we have no need to address two additional issues raised by defendant in his cross-appeal. First, he argues that the court erred in denying his motion for acquittal because there was no substantial evidence of deliberation and, accordingly, the first degree murder verdict cannot be reinstated. Defendant also argues that the cumulative effect of the errors he has raised deprived him of due process of law and a fair trial, and requires reversal.
DISPOSITION
The judgment is affirmed in its entirety.
We concur: Kline, P.J., Richman, J.
“Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
“It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.”