Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. INFO52585, Harold W. Hop, Judge.
BENKE, Acting P. J.
A jury convicted Ernest Harmon of second degree murder after Harmon stabbed his victim, Kevin Brennan, to death (Pen. Code, § 187, subd. (a)). The jury found true the allegation Harmon personally used a deadly weapon during the commission of the murder (§ 12022, subd. (b)(1)). The court instructed the jury on the charge of first degree murder and the lesser charge of voluntary manslaughter.
All statutory references are to the Penal Code unless otherwise specified.
Harmon contends we should reverse his second degree murder conviction because: (1) there was insufficient evidence to support the jury's finding he harbored the requisite malice aforethought because he killed Brennan in the heat of passion; (2) the trial court abused its discretion when it excluded evidence of his mental state in the days before the homicide that he alleges was relevant to provocation; (3) the trial court erroneously instructed the jury on provocation; (4) during closing argument, the prosecutor engaged in misconduct; and (5) in the alternative, he was denied effective assistance of counsel to the extent we conclude he forfeited any claims of error for lack of objection.
As we explain, we reject each of Harmon's contentions and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary
Because Harmon challenges the sufficiency of the evidence, we describe the facts surrounding the killing in detail.
As discussed post, we are required to view the evidence in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
In the early morning of November 17, 2005, Riverside County sheriff's deputies responded to a radio call regarding "unknown trouble" at a Palm Desert apartment complex. Deputy Kevin Cole was the first to arrive on the scene. Officer Cole saw a man running from the apartment building. The man, later identified as Harmon, was drenched in blood. Officer Cole asked Harmon if he was injured. Harmon responded, "[It's] not me; I am not hurt, " and then said in a calm voice, "I stabbed my girlfriend's boyfriend. It is bad. He is hurt bad." Harmon told Officer Cole the victim was in apartment G-4 and named Kevin. Another deputy arrived and placed Harmon in handcuffs.
Officer Cole and a third officer entered the apartment to look for the victim. Officer Cole saw the victim on the bathroom floor lying in a pool of blood, with the handle of a kitchen knife protruding from his throat. Officer Cole determined the victim, later identified as Brennan, was dead. As officers were taping off the parking lot and grass area outside the apartment, they contacted a vehicle entering the parking lot. The driver of the vehicle was later identified as Harmon's girlfriend, Christina St. Louis. St. Louis told the officers she lived in the apartment and was returning home.
Officer Manuel Montero testified he arrived at the scene shortly after Officer Cole. Officer Montero saw an individual, later determined to be Harmon, "covered in blood." After Officer Cole left to go inside the apartment, Officer Montero asked Harmon if he was injured. When Harmon said no, Officer Montero asked him why he was bloody. Harmon responded it was blood from the man he had stabbed. Officer Montero described Harmon as being "calm, " "indifferent" and "almost proud of his statement" of the stabbing. After Officer Montero placed Harmon in the patrol car, Harmon told Officer Montero the man he had stabbed "was cheating with his girlfriend."
A short time later, Officer Montero again asked Harmon whether he was injured. Because of the amount of blood on Harmon, Officer Montero asked a firefighter who had arrived at the crime scene to examine Harmon for injuries. When the firefighter asked Harmon where the blood came from, Officer Montero heard Harmon repeat it was from the man he had just stabbed.
St. Louis testified she had met Harmon at a restaurant where they both worked. At that time, they both used methamphetamines. When St. Louis was evicted from a trailer where she and her three-year-old daughter were living, they moved in with Harmon and his kids. A few months later, St. Louis lost her job and began taking care of her daughter and Harmon's kids.
In the weeks leading up to the homicide, St. Louis testified her relationship with Harmon had soured. St. Louis met Brennan in about March 2005. At that time, Harmon was still using methamphetamine. However, after his arrest for possession, Harmon stopped using methamphetamine because he was required to participate in a drug treatment program that included drug testing as a condition of probation.
St. Louis testified she, Brennan and Harmon did drugs together, "hung out" and watched television. Sometimes another friend, Lucia Sanchez Morales, would also hang out with them at the apartment, and would on occasion watch St. Louis's daughter. Brennan and Harmon initially were pretty good friends, according to St. Louis, and she observed no rivalry between them, nor did she ever witness them arguing or fighting. About a week before the homicide, St. Louis testified she and Brennan had sex for the first and only time. St. Louis testified she had developed "feelings" for Brennan.
The day before he was killed, Brennan drove St. Louis to Fontana, California, for a court appearance after a warrant was issued for her failure to appear on a petty theft charge dating back to when she was 18 years old. Before they left, St. Louis asked Harmon to take a day off work to watch her daughter. When Harmon refused, St. Louis became angry and told Harmon to move out of the apartment. Because St. Louis was late for her court appearance, she was taken into custody and not released until about 2:00 a.m. the following morning. Brennan did not stay in Fontana to wait for her release.
After her release, St. Louis testified she waited in Fontana for the court to open. Next, she called Harmon and asked him to arrange to pick her up. Harmon told her to wait at their friend's house a few blocks away from the courthouse. Harmon knew these friends also liked to use methamphetamine. St. Louis spoke a few times to Harmon on the telephone that day while at their friend's house.
During one of their conversations, St. Louis testified Harmon asked her for the first time whether she and Brennan were more than friends. St. Louis told Harmon no and said she did not want to talk about it then. St. Louis was angry for having to spend the previous night in jail. At about 10:00 p.m. that night, Brennan and Harmon arrived in Brennan's car to pick her up. Before leaving Fontana, Brennan and St. Louis smoked methamphetamine together.
Morales was at the apartment when they arrived home. St. Louis testified she and Brennan immediately went into her bedroom closet and smoked methamphetamine provided by Brennan. St. Louis often smoked methamphetamine inside the closet. As she and Brennan smoked, Harmon looked on, said nothing and had no reaction.
St. Louis testified she had not seen Harmon use methamphetamine since he completed his drug rehabilitation program. Although Harmon was no longer using the drug, St. Louis said he still gave her money to buy it. St. Louis also said Harmon did not get angry with her when she used the drug nor did he speak to her about her methamphetamine use. Although St. Louis smoked methamphetamine with others, she mostly used the drug with Brennan, who usually supplied her with it. Although Brennan sometimes gave her methamphetamine, she mostly bought it from him.
Around 1:00 a.m., after she smoked methamphetamine, St. Louis decided to go to the store to buy cigarettes and gasoline for her car. Brennan wanted to go with her, but first wanted to shower. St. Louis agreed to wait for him. As St. Louis waited, Harmon asked her why she had not left yet. Irritated, St. Louis decided to leave without Brennan, rather than argue with Harmon. Before she left, St. Louis did not notice that Harmon was angry with Brennan, although she did believe Harmon was "maybe a little" agitated at her because she had been waiting for Brennan and because she had told Harmon after they got home from Fontana he was being too "clingy" and invading her "personal space."
After she left the apartment, St. Louis called Brennan on his cell phone. She testified she made the call because she wanted to tell Brennan she already had left for the store, Harmon "seemed to be acting a little weird" and she wanted to talk when she returned. She also asked Brennan whether he wanted her to buy him cigarettes at the store. St. Louis testified she did not ask Brennan during this call to get more methamphetamine or to meet outside the apartment.
The gas station where St. Louis went to buy cigarettes and gasoline was closed. St. Louis went to another store and bought cigarettes, but forgot to buy gas. She thus made a third stop, purchased gas and returned to the apartment only to find police cars outside. She estimated she was gone about 30 minutes. St. Louis was taken to the police station and interviewed.
St. Louis spoke to Harmon in jail a week or two after the homicide. Harmon admitted he had killed Brennan, and when St. Louis asked why, he said: "I don't know. I just snapped, I guess."
Morales testified at Harmon's trial that she met Harmon in August 2005 and lived in his apartment for about two weeks. Two days before the homicide, Morales saw Harmon at a store, and described him as sad. The next day, Morales went with Brennan to the golf driving range where he worked. Later that afternoon, Harmon came to the driving range and spoke with Brennan about picking up St. Louis in Fontana. Morales described Harmon as being "impatient" and/or "exacerbated" as she left the golf course with Harmon. Morales testified Harmon drove too fast and erratically because he was upset, he starting crying and told Morales that St. Louis wanted him to move out.
On the night Brennan was killed, Morales was at the apartment. Morales saw St. Louis leave the apartment around 1:00 a.m., heard her say to Harmon, "well, I'm fuckin' leaving then, " and saw her slam the gate and Harmon follow her to the car. When Harmon returned, Morales asked him if they were mad at each other. Harmon said no but that St. Louis was irritated at him because he had left the car radio tuned to a Spanish station.
About 10 or so minutes after St. Louis left the apartment, Morales was outside on the patio talking on her telephone when she heard screaming and yelling coming from inside the apartment. As she walked inside, Morales saw the door to the bathroom open and heard Brennan screaming, "no." She testified she saw Harmon in the bathtub sticking something in the area of Brennan's throat. Blood was everywhere. Harmon turned and looked at Morales. Morales said Harmon had a "wild" and "crazy" look on his face. She asked Harmon, "[W]hat the fuck are you doing?" and ran. As she ran, Morales heard Harmon say, "don't go" and then the word "next, " which she interpreted to mean "you're next." Morales kept running because she was afraid for her life.
Detective David Eichelt of the Riverside County Sheriff's Department homicide unit testified he spoke briefly with Harmon while Harmon waited in a parked patrol car outside the apartment. Detective Eichelt described Harmon 's demeanor as solemn, and when Detective Eichelt told Harmon they would talk a little later, Harmon responded there was not much to talk about.
Detective Eichelt interviewed Harmon at the police station later that morning. The video tape of the interview was played for the jury, which followed along with the transcript of that interview.
Detective Eichelt testified that Harmon was sullen and appeared remorseful during the interview. Harmon provided details about the telephone call he overheard between Brennan and St. Louis shortly before Harmon killed him. Detective Eichelt said Harmon's account of what he heard was consistent with the trial testimony of St. Louis and Morales.
In the interview, Harmon told the detective he became upset as he stood outside the bathroom door because he heard Brennan on the telephone asking St. Louis if she wanted more "shit, " and telling St. Louis they would meet after he showered. Harmon felt "angry, " "hurt, " "jealous" and "enraged." Harmon went to the kitchen and picked up a knife that was sitting on the counter. He went back to the bathroom, opened the unlocked door and stabbed Brennan while Brennan was showering. Harmon said he stabbed Brennan to make sure Brennan and St. Louis did not meet again. Harmon also said Brennan attempted to fight back as Harmon told Brennan, "No more" while he repeatedly stabbed Brennan in the neck area.
After Detective Eichelt asked a follow-up question, Harmon said: "I know what you're looking for. You want me to say, 'To kill him.'
"[Eichelt]: Is there -- Is there a different answer to that?
"[Harmon]: No.
"[Eichelt]: You can't undo what's -- what's....
"[Harmon]: Yeah, I know.
"[Eichelt]: -- been done, you know?
"[Harmon]: I know. That's why I just said it for you. I know that's what you need. That's -- I'll give it to you. I'm
"[Eichelt]: Well, I'm just asking you what you were feeling.
"[Harmon]: I know and that's
"[Eichelt]: Is that the case?
"[Harmon]: Yes.
"[Eichelt]: I know you said you -- you didn't want them to -- 'No more, ' you said?
"[Harmon]: Yeah.
"[Eichelt]: And that was the solution?
"[Harmon]: Yeah.
"[Eichelt]: Okay. Yeah, I know you said you didn't know what you did with the knife.
"[Harmon]: Yeah, I -- I still don't.
"[Eichelt]: What -- what does it look like? I mean, what kind of knife is it?
"[Harmon]: Butcher knife."
During the interview, as recounted by Detective Eichelt, Harmon told the detective that in the weeks leading up to the homicide he suspected Brennan and St. Louis were romantically involved. Harmon also was angry with Brennan because after Harmon quit, Brennan continued to supply St. Louis with methamphetamine, which Harmon believed was "killing" her.
Harmon said he confronted Brennan at his work at the driving range the day before the homicide and Brennan confirmed he had feelings for St. Louis, they had been intimate and told Harmon that St. Louis "can't have both of us." Harmon also said Brennan agreed to leave them alone so they could have their life back, but that St. Louis "wasn't having any of that." In addition, Harmon needed Brennan to pick up St. Louis in Fontana because St. Louis's car was unreliable.
Harmon told Detective Eichelt when he and Brennan picked up St. Louis in Fontana, Harmon suggested to St. Louis that he move out of the apartment. Harmon had been thinking about moving out the day before when he spoke to Brennan at the driving range. However, St. Louis told Harmon she did not want him to leave because she needed him to help pay rent for the apartment.
When St. Louis returned home after being picked up in Fontana, Harmon said St. Louis pushed him away, "went for the pipe" and smoked a lot of methamphetamine with Brennan. Harmon told Detective Eichelt he loved St. Louis, St. Louis was no longer in love with him but was instead "in love with the pipe." Harmon admitted that during the six months leading up to the homicide, St. Louis's drug use bothered Harmon. Harmon also believed Brennan was "slowly killing" St. Louis by giving her methamphetamine.
As St. Louis was leaving to get cigarettes, Harmon gave her a hug and a kiss goodbye. In response, St. Louis told Harmon not to be so "clingy." Harmon was "heartbroken" over St. Louis's continued drug use and he "couldn't see her do it anymore."
DISCUSSION
I
Second Degree Murder Conviction
Harmon argues on appeal his conviction for second degree murder should be reversed because there is "overwhelming evidence" he killed Brennan in the heat of passion upon legally sufficient provocation, and thus at most he is guilty of voluntary manslaughter.
A. Additional Background
At trial, Harmon testified in his own defense that he and St. Louis met in Fontana in a restaurant where they both worked. Before his arrest for possession in July 2005, their relationship was based in large part on their use of methamphetamine, which Harmon supplied to St. Louis. Harmon said St. Louis used methamphetamine "24/7" and described her as a drug addict. After his arrest, Harmon quit using methamphetamine and wanted St. Louis to do the same. Despite his desire she quit, when Harmon spoke to St. Louis about quitting she "flip[ped] out in a very evil way." Because St. Louis was unhappy without methamphetamine, and because he wanted to keep their relationship going, Harmon continued to give her money even though he knew she was using some of it to buy the drug.
Harmon and St. Louis met Brennan in early 2005, and became friends through their use together of methamphetamine. In August or September 2005, after Harmon had quit using the drug, he began to suspect "something might be going on" between Brennan and St. Louis. Harmon testified Brennan and St. Louis smoked methamphetamine every day.
Harmon's suspicions that St. Louis and Brennan were romantically involved escalated the week before he killed Brennan when Brennan and St. Louis made plans to go together to Fontana to pick up methamphetamine. It was the day before Harmon's birthday and according to Harmon, it "just didn't seem right." Friends, including Morales, also told Harmon that St. Louis and Brennan were becoming close and may have had a sexual encounter.
Harmon suspected Brennan and St. Louis were using St. Louis's court appearance in Fontana on November 15, 2005, as a pretext to get away together in what he described as another "round-a-go." Harmon thus refused to watch St. Louis's daughter while she was gone. Harmon testified St. Louis "flipped out, " started screaming at him and demanded he pack up his stuff and move out. Harmon was distraught and confused, and believed St. Louis was choosing drugs and Brennan over him.
Harmon went to Brennan's work at the driving range the following day, November 16, 2005, to talk with Brennan about St. Louis. Harmon testified if St. Louis and Brennan wanted him to leave, he was willing to do so to make "everybody happy."
Before Harmon spoke to Brennan at the driving range, he talked on the telephone to St. Louis who was still in Fontana waiting to be picked up. In response to Harmon's question whether she wanted him to leave, St. Louis told Harmon she needed his help to pay the rent, they would talk later when she got home and that everything between them would be okay. Harmon thought St. Louis was lying to him when she told him everything would be okay. However, Harmon also testified when he spoke to Brennan at Brennan's work immediately after getting off the telephone with St. Louis, he no longer believed she wanted him to move out of the apartment.
Harmon testified he went between 5:00 and 5:30 p.m. to the driving range to speak with Brennan "[f]riend to friend" about St. Louis. This was the first time Harmon had asked Brennan about whether he and St. Louis had been intimate. Harmon remained "very calm, " his conversation with Brennan was "friendly" and he did not get angry after Brennan confirmed that he and St. Louis had been intimate. Harmon proposed and Brennan agreed they all would remain friends, Brennan would stop supplying St. Louis with methamphetamine and Brennan would "back off" because Harmon and St. Louis wanted to stay together.
Before he left, Harmon paid Brennan $100 to pick up St. Louis in Fontana and bring her back to the apartment. It had been Harmon's idea for Brennan to go to Fontana for St. Louis. Harmon testified he and Brennan left on friendly terms.
Morales, who had accompanied Brennan to work, left with Harmon. As Harmon drove, he became upset and angry at St. Louis and Brennan after he confirmed they were intimate. When Morales asked him why he was driving erratically, Harmon told her Brennan and St. Louis "had feelings for each other, something was definitely going on between them, and... [he] still really didn't know for sure whether [he] was staying or going." When he got back to the apartment around 7:00 p.m., Harmon told another neighbor about the "feelings" Brennan and St. Louis shared for each other. He was teary, scared and upset, felt "[his] whole life was failing apart" and he "wasn't worth anything anymore."
St. Louis continued to call Harmon that evening asking him about the status of her ride home from Fontana. Harmon became more agitated at Brennan, and believed that perhaps Brennan had lied to him about picking up St. Louis and "everything else [Brennan] had told [him]." Brennan finally arrived at the apartment, and Harmon drove with Brennan to pick up St. Louis in Fontana. Before leaving, Brennan and Morales smoked methamphetamine together.
When they arrived in Fontana, Harmon tried to hug and passionately kiss St. Louis, but she responded coldly, which upset and confused Harmon. Harmon knew St. Louis was not happy about having to spend the previous night in jail, as St. Louis had told him earlier during one of their telephone conversations that while in custody "some woman... had been petting her all night." Before they left to return home, St. Louis and Brennan smoked methamphetamine provided by Brennan. Harmon considered this a betrayal by Brennan, who earlier that day had agreed to stop supplying St. Louis with the drug. However, Harmon chose not to say anything to Brennan or St. Louis about the matter.
Harmon sat in the back of Brennan's car on the ride home. He observed St. Louis and Brennan flirting in the front seat. Harmon testified he had seen the two flirting "quite a bit" before that night. Harmon said when they got home he felt confused. He still wanted St. Louis, "loved her more than anything" and wanted to remain friends with Brennan, but knew everything between him and St. Louis was not "okay." St. Louis was again cold to Harmon when he tried to hug her, and she and Brennan went into the closet, smoked methamphetamine and maybe did "other things in there" that led Harmon to feel "more betrayed than ever." Harmon testified he just wanted to go to bed with St. Louis, wake up the next day and start their "normal life, and everything would be okay."
After they smoked methamphetamine, Brennan and St. Louis decided to go to the store together to buy cigarettes. Brennan said he first wanted to take a shower. Harmon determined "things [didn't] seem right, " "they didn't need to be spending this time together" and St. Louis could go alone to buy cigarettes. Harmon told St. Louis there was no reason for her to wait for Brennan. She got angry, told him in front of Brennan to stop being so "clingy" and stormed out of the house. Harmon followed St. Louis to the car and gave her $100 to buy cigarettes and gasoline for the car.
After St. Louis left, Harmon paced inside the apartment and smoked cigarettes. A few minutes later, Harmon heard Brennan's phone ring inside the bathroom. Harmon listened at the door and heard, over the sound of running water, Brennan saying, "you just left here, " or words to that effect. Harmon surmised Brennan was talking to St. Louis. Although it was hard to hear every word, Harmon concluded Brennan and St. Louis were going to meet up that night and smoke more methamphetamine.
Harmon testified his "whole life" changed at that point. He started hitting himself and thinking he did not want any more pain. As he continued to hit himself, he "ended up at the kitchen counter, " where he collapsed. Although he testified he was not looking for a knife when he went to the kitchen, as he threw his hands down on the counter, he hit a knife. He saw what he described as a "red burst, " thought "no more pain" in his life, and filled with anger and jealousy, he picked up the knife, walked to the bathroom where Brennan was showering and opened the unlocked door. Harmon pulled back the shower curtain, lunged at Brennan and the two scuffled in the shower. Harmon then stabbed Brennan in the neck.
Harmon testified he did not remember leaving the bathroom or talking to Morales, although he did recall Morales coming into the bathroom as he was stabbing Brennan. The next thing Harmon remembered was seeing himself covered in blood in a reflection in a car window outside the apartment. Harmon knew then he had stabbed Brennan.
At the police station, Harmon testified he told Detective Eichelt it was hard for him to stay clean and sober with people using methamphetamine right in front of him, St. Louis used the drug every day and each time she did he too had the urge to use the drug. Harmon also told Detective Eichelt he believed Brennan was giving St. Louis methamphetamine in exchange for sex. Although Harmon told Detective Eichelt during that interview he went to the kitchen and got the knife to make sure Brennan and St. Louis did not meet again and as a "solution" to his problem, at trial Harmon testified that neither thought was in his mind when he got the knife from the kitchen.
Harmon admitted he was a "jealous guy" and had been involved in incidents of domestic violence with both his former wives and with St. Louis.
Harmon's expert, clinical social worker Margaret Fetting, testified that Harmon suffered from major depression and intermittent explosive disorder, a mental condition in adults that was similar to, but more extreme than, a child's temper tantrum. Fetting explained a person with intermittent explosive disorder responds to stressful and threatening situations with explosive and often violent behavior. Fetting also diagnosed Harmon as being in "full remission" from methamphetamine dependence, which Harmon had used since he was 15 years old.
Finally, Fetting diagnosed Harmon with adjustment disorder based on his discontinuance of methamphetamine use. Fetting opined that once Harmon quit using methamphetamine, he had to cope without the "problem-solving tool" of the drug, without the support of psychotherapy, while surrounded by the daily use of the drug by St. Louis, Brennan and their friends. Fetting testified that for a recovering addict, the continuing exposure to others' drug use is "extraordinarily frustrating, " "depressing, " and promotes anxiety and a sense of being overwhelmed.
B. Standard of Review and Governing Law
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to establish " 'whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) "We draw all reasonable inferences in support of the judgment. [Citation.]" (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
" '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781].) " ' "[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt...." ' " (People v. Abilez (2007) 41 Cal.4th 472, 504.)
Murder is an unlawful killing committed with malice aforethought. (§ 187, subd. (a); People v. Robertson (2004) 34 Cal.4th 156, 164, overruled on another ground as stated in People v. Sarun Chun (2009) 45 Cal.4th 1172, 1201.) "Second degree murder is an unlawful killing with malice aforethought, but without the elements that elevate an unlawful killing to first degree murder." (People v. Robertson, supra, 34 Cal.4th at p. 164; see also People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.)
"Malice may be express or implied. Malice is express 'when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.] It is implied 'when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' [Citation.] More specifically, 'malice is implied "when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts in conscious disregard for life." [Citation.]' [Citation.]" (People v. Robertson, supra, 34 Cal.4th at p. 164; see also People v. Nieto Benitez, supra, 4 Cal.4th at pp. 102-103.) "When it is established that the killing was the result of an intentional act committed with express or implied malice, no other mental state need be shown in order to establish malice aforethought." (People v. Nieto Benitez, supra, 4 Cal.4th at p. 103, citing § 188.)
" ' "A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of... voluntary manslaughter. [Citation.]" [Citation.] Generally, the intent to kill unlawfully constitutes malice. [Citations.] "But a defendant who intentionally and unlawfully kills lacks malice... in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' [citation], or when the defendant kills in 'unreasonable self-defense'-the unreasonable but good faith belief in having to act in self-defense [citations]." [Citation.] Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation].' [Citation.]
" '[N]either heat of passion nor imperfect self-defense is an element of voluntary manslaughter' that must be affirmatively proven. [Citation.] Rather, they are 'theories of partial exculpation' that reduce murder to manslaughter by negating the element of malice. [Citation.]
"A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.]
" ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " [Citation.]' [Citation.] '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]' [Citation.]" (People v. Moye, supra, 47 Cal.4th at pp. 549-550.)
The objective requirement for heat of passion ensures that a defendant may not " ' "set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe[s] that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." [Citation.]' [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.)
"To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.]" (People. v. Moye, supra, 47 Cal.4th at p. 550.)
C. Analysis
At its core, Harmon's contention is that the jury was required to find he killed Brennan in the heat of passion upon legally sufficient provocation based on Brennan's "betrayals" (e.g., supplying St. Louis with methamphetamine when, according to Harmon, Brennan had agreed not to supply her with the drug, and agreeing to meet St. Louis-after he received the phone call in the bathroom-when, according to Harmon, Brennan had agreed to stay away from her). Certainly, the jury was entitled to consider the inferences Harmon urges in this appeal. (People v. Roy (1971) 18 Cal.App.3d 537, 552, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32 ["Sufficiency of provocation and whether a defendant in fact acted under such provocation are questions of fact for the jury"], disapproved on other grounds as stated in People v. Lasko, supra, 23 Cal.4th at p. 110.) Just as certain, however, the jury also was entitled to reject those inferences. (See People v. Hillhouse, supra, 27 Cal.4th at p. 496; see also People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.)
Indeed, the record shows the jury also heard evidence that Harmon had suspected Brennan and St. Louis were romantically involved as early as August or September 2005, months before the killing; that a week before Brennan was killed, Harmon's suspicions grew Brennan and St. Louis were romantically involved when they announced their plan to go together to Fontana to obtain methamphetamine; that friends, including Morales, told Harmon days before he killed Brennan that Brennan and St. Louis were becoming close and suggested or hinted they were romantically involved; that the day before he killed Brennan, Harmon went to the driving range to talk to Brennan "friend to friend" and, according to Harmon, Brennan confirmed he and St. Louis had been intimate; that Harmon suspected Brennan and St. Louis were using St. Louis's Fontana court appearance on November 15, 2005-more than a day before he killed Brennan-as a pretext to get away together for another "round-a-go"; that when Harmon refused to watch St. Louis's daughter while she was in court, St. Louis "flipped out, " started screaming at him and demanded he pack up his stuff and move out; that as a result, Harmon was distraught and confused-almost two days before he killed Brennan-and believed St. Louis was choosing drugs and Brennan over him; that on the drive home from the golf course hours before he killed Brennan, Harmon drove erratically and became teary because he was upset and angered by Brennan's confirmation that he and St. Louis had been intimate; that when Harmon arrived at the apartment about 7:00 p.m., hours before he killed Brennan, Harmon was upset and told another neighbor in front of Morales that Brennan and St. Louis had feelings for each other; and that as he waited for Brennan to come to the apartment so they both could go to Fontana to pick up St. Louis, Harmon became more agitated and began to think Brennan had not been truthful when he agreed to stay away from St. Louis and not give her methamphetamine.
We conclude substantial evidence exists in the record from which reasonable jurors could have concluded that Harmon was upset and angry long before he heard Brennan speaking to St. Louis inside the bathroom, moments before he killed Brennan, and thus they could have reasonably determined that Harmon did not kill Brennan " 'suddenly as a response to the provocation.' " (See People v. Daniels (1991) 52 Cal.3d 815, 868; People v. Pride (1992) 3 Cal.4th 195, 216, 250 [no error in refusing to instruct the jury on voluntary manslaughter when defendant killed two women in a building where he worked as a janitor because three days earlier his supervisor notified him of a complaint about the quality of his work, and defendant then had reacted violently, clenched his fists and called the complaint a "fucking lie, " and had threatened to get the victims that complained about him]; People v. Kanawyer (2003) 113 Cal.App.4th 1233 [no error in refusing to give voluntary manslaughter jury instruction because defendant had not been in contact with his grandparents for two weeks before he killed them, even assuming defendant endured a long history of criticism, reproach and ridicule by his grandparents, which defendant claimed provoked him to homicide].)
Reasonable jurors also could have concluded the telephone call between Brennan and St. Louis, which Harmon said changed his "whole life, " was a minor or trivial event that would not have provoked a reasonable person to act rashly. (See CALCRIM No. 570 ["While no specific type of provocation is required, slight or remote provocation is not sufficient."]; People v. Lucas (1997) 55 Cal.App.4th 721, 739 [name-calling, smirking and dirty looks insufficient as a matter of law to establish provocation].) Indeed, St. Louis testified she and Brennan had made no plans to meet later that night, she called Brennan merely to tell him why she did not wait for him before she left and to ask him if he wanted her to buy him cigarettes while she was out. Reasonable jurors also could have decided not to believe Harmon's testimony that he heard Brennan from inside the bathroom, over the sound of running water, agree to meet and smoke more methamphetamine with St. Louis right before he killed Brennan.
Reasonable jurors also could have concluded Harmon did not in fact "los[e] it" when he overheard Brennan's telephone conversation from inside the bathroom, inasmuch as Harmon knew St. Louis used methamphetamine every day and in his words she was a "drug addict, " she was not happy unless she used the drug and despite his disdain for it, he gave her money that he knew went to purchase the drug in order to keep their relationship going. Reasonable jurors could have concluded St. Louis would continue to use methamphetamine supplied by Brennan, including with Brennan, despite the fact Harmon considered such conduct to be a "betrayal" by Brennan.
As a matter of fact, the jury also heard evidence that St. Louis already had smoked methamphetamine with Brennan twice that evening-in Fontana before the drive home and inside the closet in the apartment after they returned-without Harmon "los[ing] it." Reasonable jurors could have concluded a reasonable person would not have acted rashly and in the heat of passion based on these "betrayals" by Brennan.
Reasonable jurors also could have concluded Harmon killed Brennan to punish him for "slowly killing" St. Louis because he was her main supply source of methamphetamine. (See People v. Daniels, supra, 52 Cal.3d at p. 868 ["[T]he killing must be 'upon a sudden quarrel or heat of passion' [citation]; that is, 'suddenly as a response to the provocation, and not belatedly as revenge or punishment....' "])
Reasonable jurors also could have concluded Harmon killed Brennan out of revenge because he was angry with, and hurt by, St. Louis, who testified she had developed "feelings" for Brennan. (See People v. Daniels, supra, 52 Cal.3d at p. 868.) Harmon testified when he and Brennan arrived in Fontana to pick up St. Louis, she treated him "coldly" when she refused to kiss him passionately. He also testified St. Louis acted coldly and told him in front of Brennan-a few minutes before Harmon killed Brennan-to stop being so "clingy, " which upset and angered Harmon.
As discussed post, we note any provocation by St. Louis that incited Harmon to homicidal conduct in the heat of passion was irrelevant, inasmuch as the provocation must be caused by the victim, in this case Brennan. (See People v. Moye, supra, 47 Cal.4th at pp. 549-550; see also People v. Lee (1999) 20 Cal.4th 47, 59 [the provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim].) However, even if the jury considered St. Louis to be an aider and abetter to the provocative conduct of Brennan, as Harmon argues, we conclude reasonable jurors could have concluded under the circumstances that such conduct by St. Louis-including her telephone call to Brennan immediately before Harmon "lost it"-was not "sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Moye, supra, 47 Cal.4th at p. 550.)
Reasonable jurors also could have concluded the conduct of Brennan (and St. Louis) in (allegedly) agreeing to meet and be together did not subjectively provoke Harmon to kill Brennan in the heat of passion. Harmon testified about a week before he killed Brennan he considered moving out of the apartment and back to Fontana to live with friends. Moreover, the day before the homicide he testified he went to speak to Brennan to find out whether Brennan and St. Louis had been romantically involved. In the course of that conversation, Harmon testified if Brennan and St. Louis wanted to be together, Harmon was "happy" to move out of the apartment.
Reasonable jurors also could have concluded Harmon killed Brennan out of revenge or unprovoked rage because Harmon admitted he was a "jealous guy" and he did not want his girlfriend and Brennan seeing each other any more. (See People v. Fenebock (1996) 46 Cal.App.4th 1688, 1704 ["[T]he desire for revenge does not qualify as a passion that will reduce a killing to manslaughter."])Indeed, the jury heard the testimony of the police officers who variously described Harmon immediately after the killing as "calm, " "indifferent" and "almost proud of his statement" that he stabbed Brennan. While Harmon may have had his passions aroused when he first learned from Brennan that he and St. Louis had been intimate, reasonable jurors also could have concluded Harmon's passions had cooled when Harmon killed Brennan hours later, and thus the killing became an act of revenge or a result of unprovoked rage. (See ibid.)
Reasonable jurors also could have concluded Harmon "snapped" and killed Brennan because, according to Harmon's expert, he was in "full remission" from methamphetamine dependence, he suffered from adjustment disorder because he no longer relied on methamphetamine as a "problem-solving tool" and because Harmon watched St. Louis use methamphetamine every day, often with Brennan, while he fought to stay sober. (See People v. Steele (2002) 27 Cal.4th 1230, 1253 [evidence of intoxication, mental deficiencies and psychological dysfunction due to traumatic experiences are not provocation by the victim].)
It is thus clear from the record that reasonable jurors could have reached myriad conclusions based on the evidence presented, including the conclusion urged by Harmon that he killed Brennan in the heat of passion upon legally sufficient provocation. The jury, however, rejected that conclusion, as it was entitled to do, and instead found Harmon killed Brennan with malice aforethought.
We conclude the jury's verdict on the second degree murder count, including its finding Harmon killed Brennan with malice aforethought (see § 187, subd. (a)), is supported by substantial evidence in the record. The jury saw the video recording of the police station interview of Harmon by Detective Eichelt a few hours after the homicide. During that interview, Harmon admitted he killed Brennan with a "butcher knife" because he did not want Brennan and St. Louis to be together any more, and Brennan's killing was a solution to that problem. Harmon also admitted he repeatedly told Brennan "no more" while he stabbed Brennan multiple times in the shower. This evidence supports the jury's finding that Harmon killed Brennan with malice aforethought. (See People v. Robertson, supra, 34 Cal.4th at p. 164 ["Malice is express 'when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.]")
II
Exclusion of Evidence of Harmon's Mental State
Harmon argues the trial court abused its discretion when it excluded three statements he made to Morales regarding what St. Louis had told him in the days leading up to the homicide. During an Evidence Code section 402 hearing, Morales testified outside the presence of the jury that while they were in the car together the day before Harmon killed Brennan, Harmon told her he was upset because St. Louis had told him she wanted him to move out, and then changed her mind and said she wanted him to stay. Morales also testified that Harmon was upset because St. Louis had told him she had "feelings" for Brennan. Finally, Morales testified that shortly before Harmon killed Brennan, Harmon told her that he was not mad after he followed St. Louis out to the car when she left in a huff to buy cigarettes and get gas for the car.
At trial, Harmon argued these three statements by Morales regarding what Harmon had told her in the car were admissible to show Harmon's "state of mind." The trial court disagreed and refused to alter its earlier rulings sustaining objections to the statements on the basis they contained multiple levels of hearsay. The trial court also ruled the statements would be more confusing than helpful to the jury, given the multiple layers of hearsay and given the statements were made by St. Louis and not the victim, and thus were inadmissible under Evidence Code section 352. (See People v. Moye, supra, 47 Cal.4th at pp. 549-550.)
Assuming, without deciding, Harmon's statements in the car to Morales regarding what St. Louis had told him were relevant to show provocation (under an alleged aider and abetter theory), and assuming, without deciding, the trial court erred when it ruled these statements contained multiple layers of hearsay and there was no exception for each layer (People v. Arias (1996) 13 Cal.4th 92, 149, citing Evid. Code, §§ 1200 and 1201 ["multiple hearsay is admissible for its truth only if each hearsay layer separately meets the requirements of a hearsay exception"), and finally, assuming without deciding, the trial court abused its discretion when it ruled the statements were inadmissible under Evidence Code section 352, we conclude any such error was harlmeless.
See footnote 3, ante.
The record shows Morales did in fact testify that while she and Harmon were driving home from the driving range, she saw Harmon upset, crying and driving erratically, and that he told her St. Louis wanted Harmon to move out. The record also shows that when Harmon took the stand in his own defense, he testified he was upset and confused on the drive home with Morales because Brennan had just confirmed he and St. Louis had been intimate. Harmon also testified he told Morales that Brennan and St. Louis "had feelings for each other, something was definitely going on between them, and that [he] still really didn't know for sure whether [he] was staying or going." Harmon shared his feelings with Morales because she was his friend and confidant.
Thus, the record shows that the jury actually heard the testimony-with one less layer of hearsay-regarding what Harmon claims St. Louis had told him about moving out of or staying in the apartment, and how Harmon knew before he killed Brennan that St. Louis had developed "feelings" for Brennan and that Brennan and St. Louis had been intimate.
The record also shows that Morales was allowed to testify that she saw St. Louis leave the apartment shortly before the killing and Harmon follow after her, and that when Harmon returned to the apartment, he told Morales that St. Louis went to buy cigarettes. Because Morales heard St. Louis say, "I'm fuckin' leavin' then" and saw her slam the gate, Morales asked Harmon whether they were angry at each other. Harmon responded they were not angry at each other, but that St. Louis was only angry with him for leaving the car radio tuned to a Spanish station.
Thus, even if the trial court erred in refusing to allow Morales to testify to the three statements by Harmon regarding what St. Louis had told him, that error was harmless because the jury ultimately heard this evidence through Harmon's testimony. (See People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Harris (2005) 37 Cal.4th 310, 336 [claims of error in applying the ordinary rules of evidence are subject to the People v. Watson standard of review].)
III
Jury Instructions on Voluntary Manslaughter
Harmon next argues the trial court erred in connection with its instruction to the jury regarding CALCRIM No. 570 and the law of provocation. The trial court instructed the jury with a modified version of CALCRIM No. 570 as follows:
The original version of CALCRIM No. 570, as it read in November 2008 when Harmon was tried and convicted, provided: "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/her) 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. [¶] 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/her) 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 fact. [¶] [If enough time passed between the provocation and the killing for a person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.] [¶] 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."
"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;
"And,
"2. As a result of the provocation, the defendant acted rashly under the influence of intense emotion that obscured his reasoning or judgment;
"And,
"3. The provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
"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.
"Provocation can only reduce murder to voluntary manslaughter if the victim initiated the provocation. The provoker need not intentionally provoke the defendant, nor does the provoker have to be aware that his or her actions will provoke the defendant. [Italics added.]
"It is not enough that the defendant was simply 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 an ordinary person of average disposition would have been provoked, and how such a person would react in the same situation knowing the same facts.
"If enough time passed between the provocation and the killing for an ordinary person of average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
"The 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."
A. Whether the Jury Could Consider St. Louis's Conduct in Determining Whether Brennan "Provoked" Harmon
Harmon first argues modified CALCRIM No. 570 erroneously precluded the jury from considering the conduct of St. Louis, who he claims aided and abetted, and acted in concert with, Brennan, the victim, in provoking Harmon to act in the heat of passion. In advancing this argument, Harmon primarily relies on People v. Spurlin (1984) 156 Cal.App.3d 119.
Briefly, in People v. Spurlin the defendant was convicted of first degree murder of his nine-year-old son, who was sleeping when defendant attacked and killed him with a hammer, and of second degree murder of his wife, who defendant attacked and strangled after a martial disagreement. (People v. Spurlin, supra, 156 Cal.App.3d at pp. 122-123.) The court instructed the jury on the elements of first and second degree murder as to both killings, and on voluntary manslaughter as to the wife's killing only. The trial court informed the jury the manslaughter instruction did not apply to the son's killing because the son had slept the entire evening and thus could not have provoked defendant and triggered the heat of passion to reduce his murder to manslaughter. (Id. at p. 123.)
On appeal, the defendant argued the trial court erred in refusing to give the manslaughter instruction in connection with the killing of his son. In rejecting that argument, the court in Spurlin noted section 192 "does not expressly state voluntary manslaughter only applies to situations involving adequate provocation by the victim." (People v. Spurlin, supra, 156 Cal.App.3d at p. 125.) The court further noted at the time there was no California case "dealing directly with the question of whether the provocation necessary to reduce the charge from murder to manslaughter must be caused by the victim." (Id. at pp. 125-126, fn. omitted.) Looking to cases from other jurisdictions for assistance, however, we concluded in each of those cases the "defendants' murder convictions were upheld against their contentions they were entitled to manslaughter instructions as to their 'non-provoking' victims. As a result, legal commentators have summarized common law principles regarding 'adequate provocation' as follows: '[T]he provocation must have been given by the person who was killed, except in those cases in which the wrong person was killed by accident or mistake, or deceased was present aiding and abetting the person causing the provocation.' " (Id. at p. 126.)
Our court concluded in People v. Spurlin that the trial court correctly gave the manslaughter instruction concerning the wife's death because immediately before defendant killed his wife they had fought over each other's infidelity. (People v. Spurlin, supra, 156 Cal.App.3d at p. 126.) We also concluded the trial court properly refused to give the manslaughter instruction as to the son's killing because the son could not have legally provoked the defendant, which in turn led to his rage, because the son had been asleep the entire evening. (Ibid.)
We have no quarrel with our holding in People v. Spurlin. As we noted there, in 1984 no California case had yet addressed the issue of whether the provocation that incites a defendant to homicidal conduct in the heat of passion must be caused by the victim. Our Supreme Court has since affirmatively answered that issue, and concluded that the provocation "must be caused by the victim... or be conduct reasonably believed by the defendant to have been engaged in by the victim." (People v. Lee (1999) 20 Cal.4th 47, 59, citing In re Thomas C. (1986) 183 Cal.App.3d 786, 798, and People v. Brooks (1986) 185 Cal.App.3d 687, 694.)
In addition, we note the "aiding and abetting" language in People v. Spurlin was pure dicta, inasmuch as we did not rely on such a theory in that case in deciding the trial court properly instructed the jury on the applicability of manslaughter to the killing of the wife, but not of the son. (People v. Lucatero (2008) 166 Cal.App.4th 1110, 1116 ["An observation unnecessary to the decision of a court does not constitute binding precedent."])
In any event, our independent research confirms that no California court has invoked the "aiding and abetting " language of People v. Spurlin in connection with provocation and heat of passion, and we doubt whether any court could do so in light of People v. Lee and its progeny. (See e.g., People v. Moye, supra, 47 Cal.4th at p. 550, quoting with approval People v. Lee, supra, 20 Cal.4th at p. 59.)
Here, there was only one victim: Brennan. We conclude the trial court properly instructed the jury on provocation and heat of passion by focusing the jury on Brennan's conduct in determining whether Brennan provoked Harmon and whether Harmon was incited to homicidal conduct in the heat of passion as a result of such provocation.
B. Provocation Instruction
Harmon next argues the trial court erred when it instructed the jury on voluntary manslaughter and heat of passion in accordance with the version of CALCRIM No. 570 applicable at the time of his trial and conviction in November 2008. The portion of the instruction relevant to our discussion provided:
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) 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." (Italics added.)
The italicized language was revised in December 2008 to read: "In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570, italics added.)
"In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. [Citations.]" (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331; see also People v. Kelly (1992) 1 Cal.4th 495, 525 [when a defendant claims that a jury instruction misstated the law, a reviewing court considers the charge in its entirety to determine whether there is a reasonable likelihood that the jury misunderstood the applicable law].) We independently review the legal adequacy of a jury instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
Harmon's challenge is to the objective component of provocation, which we discussed ante. We note, however, that Harmon is unable to cite to any case that questions the correctness of the version of CALCRIM No. 570 applicable in November 2008, when Harmon was tried and convicted. Instead, Harmon relies on People v. Najera (2006) 138 Cal.App.4th 212 and cases like it, which provide that a killer's response to the provocation is irrelevant because a killing is never reasonable, and that the proper inquiry instead is whether the provocation was sufficient to cause a reasonable person to act rashly. (See People v. Najera, supra, 138 Cal.App.4th at p. 223.) Harmon argues that the challenged portion of CALCRIM No. 570 improperly suggests to the jury that the provocation required to reduce murder to manslaughter is a provocation that would cause an ordinary person to kill.
We disagree with Harmon's interpretation of the part of former CALCRIM No. 570 that instructed the jury that "[i]n 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." (Italics added.) The instruction as given directed the jury to focus on the provocation and to consider whether an ordinary person would have been provoked under the facts of the case.
Moreover, other parts of CALCRIM No. 570-which Harmon does not challenge-instructed the jury it could reduce the offense from murder to manslaughter only if it found "[a]s a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured [his/her] reasoning or judgment." They also explained the jury must conclude "[t]he provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." Read as a whole (see People v. Moore, supra, 44 Cal.App.4th at pp. 1330-1331), we conclude former CALCRIM No. 570 adequately instructed the jury on the elements of voluntary manslaughter based on heat of passion.
In any event, we conclude any error in instructing the jury with respect to then-applicable CALCRIM No. 570 was harmless in light of the substantial evidence in the record supporting the jury's finding Harmon killed Brennan with malice aforethought (including, but not limited to, Harmon's admission to Detective Eichelt that he killed Brennan with a "butcher knife" because he did not want St. Louis and Brennan to be together any more and because it was a solution to his problem), and in light of the fact the evidence of provocation, such that an "average, sober person would be so inflamed that he or she would lose reason and judgment (People v. Lee, supra, 20 Cal.4th at p. 60), was relatively weak. We thus conclude it is not reasonably probable Harmon would have obtained a more favorable result in the absence of the (alleged) instructional error. (See People v. Watson, supra, 46 Cal.2d at p 836; see also People v. Breverman, supra, 19 Cal.4th at p. 165 [failure to instruct on adequate provocation and heat of passion constitutes state law error only]; People v. Cheaves (2003) 113 Cal.App.4th 445, 455 [error in instructing on a lesser included offense in noncapital case is subject to the standard of review as provided in People v. Watson, supra, 46 Cal.2d at p. 836].)
IV
Prosecutorial Misconduct
Harmon argues the prosecutor engaged in misconduct during argument by misstating the law in several respects, by denigrating defense counsel and by appealing to the jurors' sympathy for Brennan.
A. Misstatements of Law
1. Provocation by the Victim Only
Harmon contends the prosecutor misstated the law when arguing to the jury it could consider only the conduct of the victim, Brennan, and not the conduct of St. Louis in determining whether a reasonable person would have been provoked to act in the heat of passion. Based on our conclusion ante that the trial court did not err in excluding the hearsay statements of St. Louis because (among other reasons) she was not a victim, we conclude the prosecutor's statement to the jury that it should consider only Brennan's conduct for purposes of provocation was an accurate summary of the law. (See People v. Lee, supra, 20 Cal.4th at p. 59.)
2. Harmon's Response to the Provocation
Harmon next contends the prosecutor misstated the law when arguing in closing there was insufficient provocation to support voluntary manslaughter because under the circumstances a reasonable person would not have killed Brennan. In light of our discussion ante, we agree with Harmon that it was improper for the prosecutor to argue that provocation/heat of passion turns on the reasonableness of the killer's response to the provocation, as opposed to whether a reasonable person would have been provoked to act rashly and in the heat of passion. (See People v. Najera, supra, 138 Cal.App.4th at p. 223.)
Nonetheless, the record shows the trial court sustained defense counsel's objections to the prosecutor's misstatements regarding the relevancy of a killer's response to the provocation. In addition, the trial court admonished the jury before closing argument that if "either attorney misstates the law... you will rely on... the law as stated by me." The trial court also reminded the jury at various points during closing that if the law as argued by the attorneys conflicted with the law as instructed by the court, the jury was required to follow the court's instructions.
Finally, at the conclusion of argument, the court instructed the jurors that they were to "follow the law as I [the trial court] explain it to you even if you disagree with it, " and that if they believed the comments of the attorneys conflicted with the instructions given by the court, they were required to follow the instructions given by the court.
In addition, we note that Harmon's defense counsel correctly stated the test for provocation at various points during his closing, noting provocation exists when "a reasonable person of average disposition" would have acted "rashly and from heart rather than judgment." Defense Counsel also cautioned jurors the words "provocation, " "sudden quarrel" and "heat of passion" were "misleading" words and not "easy" to apply, and encouraged them to look at the definitions of these words to understand their meaning.
Defense counsel also reviewed CALCRIM No. 570 with the jury and discussed what provocation meant and whether, under the circumstances, a reasonable person would have been driven to an intense emotion that obscured his or her reason or judgment:
Defense Counsel: "[I]f you take out [Harmon's] unique sensibilities as far as his problem with d[r]ug abuse, and he has intermittent explosive disorder, you put that aside, would any person that is reasonable, and I am not saying would they kill; that's not the element of the provocation, would that person lose their -- would they act without deliberation? Would they act without judgment? Would they act rashly?" (Italics added.)
We presume the jurors relied on the court's instructions, and not the argument of the prosecutor, in convicting Harmon. (People v. Morales (2001) 25 Cal.4th 34, 47 [" '[I]t should be noted that the jury, of course, could totally disregard all the arguments of counsel.' "]; People v. Scott (1988) 200 Cal.App.3d 1090, 1095 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions."]) This presumption recognizes that a jury " 'treat[s] the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' [Citation.]" (People v. Morales, supra, 25 Cal.4th at p. 47.)
Because the trial court emphasized to the jury before, during and after closing argument that it was to rely solely on the court's instructions to the extent they varied from the law argued by the attorneys, and because the trial court properly instructed the jury regarding provocation and heat of passion for purposes of voluntary manslaughter, we conclude any misstatements of law by the prosecutor regarding a reasonable person's response to the provocation were cured by the trial court in its instructions to the jury and, to a lesser extent, by Harmon's own counsel during his closing.
3. Intermittent Explosive Disorder and Voluntary Manslaughter
Harmon next contends the prosecutor misled the jury when arguing during closing that because Harmon was relying on a diagnosis of intermittent explosive disorder to show he did not premeditate and deliberate in the killing of Brennan, Harmon could not then disregard that disorder and argue Brennan's conduct would have provoked a reasonable person (without that disorder) to act rashly for purposes of voluntary manslaughter. The prosecutor argued that an individual suffering from intermittent explosive disorder responds to little or no provocation in a "grossly disproportionate and... unreasonable" manner, which the prosecutor claimed was inconsistent with voluntary manslaughter. (See People v. Moye, supra, 47 Cal.4th at p. 549.)
We agree with Harmon that his diagnosis of intermittent explosive disorder was relevant to show he killed Brennan while under the actual influence of a "strong passion" induced by Brennan's (alleged) provocation. (See People v. Moye, supra, 47 Cal.4th at p. 550 ["To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.]") Thus, to the extent the prosecutor argued this disorder was irrelevant to voluntary manslaughter, we agree that was error.
However, we also conclude this error was not prejudicial, inasmuch as voluntary manslaughter also includes, as we have discussed, an objective component of heat of passion to ensure a defendant may not " 'set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe[s] that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." [Citation.]' " (People v. Gutierrez, supra, 28 Cal.4th at pp. 1143-1144.)
Here, the prosecutor's argument during closing was relevant to the objective component of heat of passion, and at least with respect to whether a reasonable person would have acted rashly under the circumstances, was not misleading. (People v. Lee, supra, 20 Cal.4th at p. 60 [the provocation to reduce murder to voluntary manslaughter is viewed from an objective standpoint and not the defendant's subjective perspective, and "must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment."])
4. Presumption of Innocence
Harmon next contends the prosecutor misstated the law in rebuttal when arguing the jury did not have to "worry" about convicting an innocent man because Harmon was "guilty as sin."
First, we observe that Harmon failed to object to this challenged statement. Because the " ' "trial court should be given an opportunity to correct the [alleged] abuse and thus, if possible, prevent by suitable instructions the harmful effect [of such alleged misconduct] upon the minds of the jury" ' [citation]" (People v. Bell (1989) 49 Cal.3d 502, 535), we conclude Harmon forfeited this claim. (Ibid.[" '[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected...; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution.' [Citation.]"])
Second, in reaching the merits of this issue to forestall any ineffective assistance of counsel claims, the record shows Harmon's own counsel told the jury at the beginning of his closing that Harmon was not innocent because Harmon had killed Brennan. Defense counsel also told the jury that Harmon was "not walking out of here" and that Harmon was "going to a cage [e.g., jail]." Defense counsel continued that it was up to the jury to decide which of the "three options" applied to Harmon-"first degree murder, second degree murder [or] voluntary manslaughter, " and that these options were the "only choices today that [Harmon] gets." Thus, Harmon's own counsel recognized that Harmon was not innocent for killing Brennan.
See post, footnote 9.
Third, at the conclusion of closing argument, the trial court instructed the jury a "defendant in a criminal case is presumed to be innocent, " and this "presumption requires that the People prove a defendant guilty beyond a reasonable doubt." As previously noted, a court of review presumes jurors relied on the court's instructions, and not the argument of counsel, to mitigate any prejudice. (See (People v. Morales, supra, 25 Cal.4th at p. 47; People v. Valdez (2004) 32 Cal.4th 73, 134.) We conclude Harmon is unable to show a reasonable likelihood the jury construed or applied the alleged misstatement regarding the presumption of innocence in an improper manner. (People v. Ayala (2000) 23 Cal.4th 225, 284.)
Finally, it is not misconduct for a prosecutor to be a passionate advocate. (People v. Fierro (1991) 1 Cal.4th 173, 212 [argument by a prosecutor is "traditionally vigorous and therefore afforded wide latitude"]; People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [noting "[a]rgument... may include opprobrious epithets reasonably warranted by the evidence, " and concluding prosecutor's remarks in calling defendant a " 'pathological liar, ' " and " 'one of the greatest liars in the history of Fresno County, ' " among other things, did not amount to misconduct].) We thus conclude the prosecutor did not engage in misconduct merely because she stated Harmon was guilty as sin.
5. Intent to Kill
Harmon contends the prosecutor misstated the law in rebuttal when arguing "voluntary manslaughter is when you have no intent to kill." We agree. (See People v. Lasko, supra, 23 Cal.4th at pp. 109-110 ["[A] killer who acts in a sudden quarrel or heat of passion lacks malice and is therefore not guilty of murder, irrespective of the presence or absence of an intent to kill"], italics added.)
However, we conclude Harmon suffered no prejudice because the court sustained defense counsel's objection to this statement, admonished the jury to follow the law as instructed by the court to the extent it conflicted with the representations of the law argued by counsel and properly instructed the jury regarding voluntary manslaughter based on CALCRIM No. 570, as then applicable to Harmon. (See People v. Morales, supra, 25 Cal.4th at p. 47.) We thus conclude this error was harmless. (See People v. Ayala, supra, 23 Cal.4th. at p. 284; People v. Jackson (1996) 13 Cal.4th 1164, 1240 [applying People v. Watson, supra, 46 Cal.2d at p. 836 to the issue of prejudice based on claim of prosecutorial misconduct during closing argument].)
B. Remaining Claims
1. Disparaging Counsel
Harmon argues the prosecutor engaged in misconduct when arguing in rebuttal that defense counsel's "job" was to "confuse[]" jurors by talking about the lesser crimes to create reasonable doubt regarding whether Harmon was guilty of first degree murder. Relying primarily on People v. Bell, supra, 49 Cal.3d 502, Harmon claims (without explanation) this "attack" on defense counsel by the prosecutor violated his constitutional rights to effective assistance of counsel, to present a defense, to confront the witnesses against him and to due process of law. We conclude this argument is entirely lacking in merit.
At the outset, Harmon failed to object to this challenged statement, and thus forfeited this claim. (See People v. Bell, supra, 49 Cal.3d at p. 535.) Reaching the merits, we conclude the prosecutor did not engage in misconduct.
We reject Harmon's claim our Supreme Court in People v. Bell "held" that the prosecutor there engaged in misconduct when arguing that it was defense counsel's "job" to "confuse[], ""sidetrack[]" and "throw sand in [the jury's] eyes." (People v. Bell, supra, 49 Cal.3d at p. 538.) In fact, the court in People v. Bell "held" that defendant forfeited this claim by failing to object and giving the trial court the opportunity to cure any "misunderstanding" by admonition. (Ibid.)
Black's Law Dictionary defines the word "holding" as "[a] court's determination of a matter of law pivotal to its decision." (Black's Law Dictionary (9th ed. 2009) p. 800.)
Moreover, the court in People v. Bell did not even "conclude" the prosecutor's remarks constituted misconduct. (People v. Bell, supra, 49 Cal.3d at p. 538.) Instead, the court in dicta noted the prosecutor's remarks were ambiguous, and could have served merely as a reminder to the jury "not [to] be distracted from the relevant evidence and inferences that might properly and logically be drawn" from that evidence, as opposed to "suggest that counsel was obligated or permitted to present a defense dishonestly, " which would be improper. (See People v. Bell, supra, 49 Cal.3d at p. 538.)
Like the court in People v. Bell, we conclude the prosecutor's comments here that it was defense counsel's "job" to "confuse" the jury were at most ambiguous, but not misconduct. (See People v. Goldberg (1984) 161 Cal.App.3d 170, 190 [statement by prosecutor that defense counsel's "job" is to confuse the jury about the issues not deemed misconduct]; People v. Gionis (1995) 9 Cal.4th 1196, 1216-1217, fn. omitted [remarks by prosecutor that "simply point[] out that attorneys are schooled in the art of persuasion, " including that defense counsel is " 'just doing his job' " and " '[h]is job is to... get [defendant] off' " are not impermissible]; People v. Miller (1990) 50 Cal.3d 954, 997 [rejecting argument the prosecutor attacked the integrity of defense counsel during closing when arguing, " '[T]he defense can come in here and say pretty much whatever they want to, ' " and, " 'That's the system, ' " and concluding such statements did not suggest "defense counsel improperly fabricated the defense, nor [did they] otherwise directly impugn defense counsel's honesty or integrity."])
For one thing, the jury convicted Harmon of second degree murder. Thus, it is clear the jury itself rejected the alleged misstatements of the prosecutor, which were directed at securing a conviction for first degree murder.
In addition, the statements Harmon is complaining about were made by the prosecutor in rebuttal in connection with provocation. During his closing, defense counsel argued to the jury that provocation was a "misleading" word (along with the words "sudden quarrel" and "heat of passion") and not "easy" to apply. Although absent from Harmon's brief, the record shows the prosecutor went on to argue in rebuttal that as defense counsel explained it, provocation was "confusing" because there were actually "two different meanings" of the word, one which applies to reduce murder in the first degree to murder in the second degree, and the other which reduces murder in the second degree to voluntary manslaughter. The prosecutor thus told the jurors they should not be "confused by these two definitions" and to "look at those instructions." (See People v. Morales, supra, 25 Cal.4th at p. 47 [a jury is presumed to follow the instructions given by the court]; People v. Bemore (2000) 22 Cal.4th 809, 846 [a prosecutor is afforded "wide latitude" during argument "in describing the deficiencies in opposing counsel's tactics and factual account"].) We conclude the prosecutor's remarks here were within the "bounds of permissible vigor." (People v. Gionis, supra, 9 Cal.4th at pp. 1217-1218.)
2. Sympathy for Brennan
Harmon next argues the prosecutor committed misconduct by appealing to the jurors' sympathy for Brennan. In one statement during opening argument, the prosecutor suggested to jurors that during deliberations they should review the photographs of Brennan, if they could bear it, and acknowledge that Brennan "deserves justice" and is "crying out for... justice." In other statements, the prosecutor in rebuttal argued that Brennan "did not provoke anyone, " that he was a "19-year-old kid" who did not "have a chance to figure out his life yet" and that before the jury signs the verdict forms it should "take a look at Kevin Brennan." The trial court sustained all of Harmon's objections to these statements. At the request of defense counsel, the court also admonished the jurors not to consider the prosecutor's final comment that it "take a look at Kevin Brennan" before signing the verdict forms.
We conclude the prosecutor's statements were not an improper appeal to the jury's passion and prejudice. "Prosecuting attorneys are allowed 'a wide range of descriptive comment' and their ' " 'argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (People v. Martinez (2010) 47 Cal.4th 911, 957 [rejecting argument of defendant that prosecutor inappropriately appealed to the jury's passion, prejudice, and sympathy by referring to the victim of a homicide "as 'that poor lady, ' 'that poor woman, ' or as 'a very nice woman'; describing her assault as a 'savage beating' and expressing incredulity 'that one human being could do that to another being'; remarking that any uneasiness the jury might experience in viewing the photographs of her injuries would reflect 'a measure of the true violent capabilities of the defendant in this case and the true measure of the suffering of the victim'; and ending his argument by telling the jury that it had the ability through its verdict to 'tell everybody in this community' and 'everyone' that [the victim] was 'a nice person, ' 'a gentle person, ' 'a loner' who was 'depressed' and 'contemplative' because she was mourning 'the loss of the person that she loved more than anybody else in life, ' and 'that she was not a promiscuous woman' who 'would engage in a one-night stand with the defendant' "; and by making similar impassioned statements relating to other victims of defendant, including "stating 'that the memory of each of the victims will always be scarred from their individual suffering and the terror created by' defendant's assaults; remarking on 'their looks of discomfort' while having 'to face the defendant again' in court; describing 'the tears evoked' when [one victim] testified as to defendant's assault; and by claiming that it was 'insulting your intelligence' for defendant to claim that he did not intend to rape [one of the victims].]") (People v. Martinez, supra, 47 Cal.4th at p. 956.)
Here, we conclude the prosecutor's description of Brennan in the photographs, the fact Brennan was only 19 years old when Harmon killed him and the fact the jury should consider Harmon's admission he killed Brennan and the jury should "look at" Brennan before signing the jury verdict forms were fair comments based on the evidence (see People v. Harrison (2005) 35 Cal.4th 208, 244-245), and were certainly far less numerous and descriptive that the comments of the prosecutor in People v. Martinez, which our High Court found not improper. (People v. Martinez, supra, 47 Cal.4th at pp. 956-957.)
In addition, even if the prosecutor's statements could be interpreted as an improper appeal for sympathy for Brennan, we conclude it is not reasonably probable that the verdict would have been more favorable to Harmon without any such (alleged) misconduct. (People v. Martinez, supra, 47 Cal.4th at p. 957; People v. Pensinger (1991) 52 Cal.3d 1210, 1250.) The record shows the prosecutor's comments about Brennan were few in number and brief. In addition, the trial court sustained defense counsel's objections to the statements and instructed the jury it was not to let "bias, sympathy, prejudice, or public opinion influence[] your decision." (Italics added.) We presume the jury followed the court's instruction. (See People v. Martinez, supra, 47 Cal.4th at p. 957; People v. Kipp (2001) 26 Cal.4th 1100, 1130.)
In light of our conclusions in this opinion, we summarily reject Harmon's argument that the "cumulative impact" of the (alleged) prosecutorial misconduct resulted in prejudice and deprived him of a fair trial and due process of law. (See People v. Parson (2008) 44 Cal.4th 332, 368 [reaching a similar conclusion].) In any event, we note that in advancing this argument, Harmon in his brief merely reargues the facts he claims show the jury erred when it rejected his argument that he lacked the requisite malice aforethought and killed Brennan in the heat of passion. Finally, in light of our resolution of the merits of each of his claims of prosecutorial misconduct, we reject Harmon's alternative contention that he received ineffective assistance of counsel to the extent defense counsel failed to interpose timely objections to any such alleged misconduct.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: NARES, J., AARON, J.