Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 159330
RUSHING, P.J.
I. Statement of the Case
Defendant Romesh Chander Kanda appeals from a judgment entered after a jury convicted him of second degree murder and assault with a firearm and further found that he personally used a handgun during the commission of both offenses. (Pen. Code, §§ 187, 245, subd. (a)(2), 12022.5, subd. (a).) On appeal, he claims the court gave erroneous instructions on how to determine the sufficiency of provocation for the purpose of voluntary manslaughter under a heat-of-passion theory. He also claims the prosecutor was guilty of misconduct in arguing an erroneous standard for determining the sufficiency of provocation.
All further unspecified statutory references are to the Penal Code.
We find instructional error that compels reversal of the murder conviction.
II. Facts
The pivotal facts of this case occurred in eight minutes or less. Defendant objected to the victim’s business practices and then was beaten, he went for a gun and shot and killed one of the assailants. But the story must be placed in context.
In the mid 1980’s, defendant met the victim, Ramesh Lal, at the San Jose Flea Market, where they sold similar items. Over the next few years, they became business competitors, and their relationship became acrimonious. Defendant was upset with Lal for not buying materials exclusively from him and competing with him for choice locations at the flea market. At times, defendant and Lal argued loudly. Some people heard defendant threaten to kill Lal, and Lal once reported such a threat to the police. Over time, Lal stopped buying materials from defendant and started manufacturing his own merchandise.
In late 1991 or early 1992, defendant vacated his warehouse and rented a different one about about a mile away. He had a friend warn Lal not to rent his former warehouse and threatened to have Lal’s family in India killed if he did. Despite the threat, Lal rented the space.
In June 1992, UPS attempted to deliver a number of packages for defendant at his former warehouse. Lal’s employees refused delivery, and UPS ultimately delivered them to defendant’s new location. On June 24, 1992, UPS again delivered goods for defendant to Lal’s warehouse. Lal’s brother, Suresh Batra, paid the C.O.D. charge and accepted them. Within minutes he realized the mistake, returned the goods to the UPS driver, and got the check back.
Later that afternoon, defendant called Lal’s warehouse. He spoke to Trepender Singh and asked about the missing shipment. Singh knew nothing about it. Defendant called a second time and said that whoever had signed for the shipment was in trouble and should be scared. Singh told Batra, and Batra called defendant and explained what had happened. Defendant threatened to kill him for taking the package and said he was coming over. Around this time, Lal left the warehouse.
Shortly thereafter, defendant arrived. He parked in front of Galley Press, a few doors down from Lal’s warehouse. He walked over and called Batra outside. Batra came out and showed defendant the returned C.O.D. check. Defendant complained that his customers and deliveries were being stolen. He then physically assaulted Batra, who fought back. While they were fighting, Lal arrived and joined the fray. At some point, Batra or Lal took defendant’s shirt. After a while, the fighting stopped, and defendant walked away. Singh called 911. Lal entered the warehouse and threw defendant’s shirt on the floor.
Meanwhile, defendant went to Gallery Press and spoke to the owner, Hidayat Mehdizadeh. Defendant was shirtless and breathing hard. He seemed distressed. He asked Mehdizadeh to call 911. He said he had been robbed and was going back to get his money. After defendant left, Mehdizadeh looked down the street and saw Batra and Lal watching and waiting for defendant. Batra was holding a three- to four-foot wooden board; Lal was holding a four- or five-foot metal pipe. When defendant was about five feet away, Batra and Lal set upon him and started beating him repeatedly with the board and pipe. Defendant tried to protect his face and fell to the ground. Lal held him there, while Batra beat him over the head with a board, breaking it. He then got another board and continued to beat defendant. Mehdizadeh called 911.
Doctor Chain Tai, a veterinarian, who owned a nearby clinic, witnessed the beating and tried to stop it. He returned to his clinic and called 911. He then saw defendant walk by the clinic en route to his car. Defendant seemed “out of his mind,” angry, and upset. Defendant opened the trunk, removed a gun from a briefcase, loaded it, and started back to the warehouse.
Batra was at the door of the warehouse and saw defendant approach with a gun. Lal was on the phone a few feet away. Defendant pointed the gun at Lal and started shooting. He hit Lal in the head and leg, killing him. Batra screamed. He and other employees ran into the warehouse. Defendant fired at them, hitting Singh in the leg, and then returned to his car. According to Mehdizadeh, defendant was bloody and dazed. Defendant unloaded the gun and put something into his briefcase. Mehdizadeh told him to wait for the police, but defendant entered his car and drove to his warehouse. He was shirtless, bruised, bloody, and unsteady on his feet. He handed his briefcase to an employee and told him not to give it to anyone. Another employee drove him to the hospital. Defendant gave him directions on how to get there. According to the employee, defendant was “not in his sense” and was like a “fainted man.”
At the hospital, defendant appeared confused and groggy. In the emergency room, with the police in the area, he was uncooperative. He had blood on his face and neck; bruises and scrapes on his face, shoulder, forearm, and knee; and a two- to three-inch laceration on his forehead. He was diagnosed with a minor concussion. Some of his injuries needed immediate attention, and the laceration had to be stapled, but he had no serious injuries. He was discharged the next morning and immediately arrested.
At Lal’s warehouse, police found, among other things, bloody pieces of wood, a bullet, and defendant’s shirt and undershirt. Uncashed checks totaling $1,800 were in a shirt pocket. At defendant’s warehouse, police retrieved his briefcase, which contained bullets and spent cartridges. In defendant’s car, police found the handgun that had been used to shoot Lal.
III. Instructional Error concerning Provocation
As a defense to a murder charge, a killing is voluntary manslaughter if it was provoked and occurred in the heat of passion. Defendant contends that the court erroneously instructed jurors that such a defense requires provocation that would cause an ordinarily reasonable person to kill.
A defendant commits voluntary manslaughter and not murder when he or she unlawfully kills another person “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.... ‘[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253, italics added.)
In instructing the jury, the court gave former CALCRIM No. 570. In relevant part, the court stated, “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 or her 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. [¶] 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 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 the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find him not guilty of murder.” (Italics added.)
Defendant claims that the instructional language italicized above tainted the objective standard that guides the jurors in determining whether there was legally sufficient provocation.
Forfeiture and Estoppel
Before discussing defendant’s claim, we address the Attorney General’s argument that defendant forfeited his claim by failing to object to the instruction or request a modification; or, alternatively, that defendant should be judicially estopped from asserting it.
Generally, “[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]” (People v. Lang (1989) 49 Cal.3d 991, 1024; accord, People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.) However, the forfeiture rule is inapplicable. Defendant claims that the instruction was not “correct in law” because it allowed jurors to (1) apply the wrong standard in determining the sufficiency of provocation, (2) find insufficient provocation, and thus (3) reject a defense to murder—i.e., lack of malice.
Moreover, we may “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (§ 1259; People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7.) Here, defendant claims that the instructional error violated his right to due process. Thus, to determine whether the instruction affected his substantial rights, we would engage in an inquiry equivalent to a determination of whether an instructional error was prejudicial. (See People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2, quoting People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [“Substantial rights are affected if the error ‘result[s] in a miscarriage of justice, [i.e.,] making it reasonably probable defendant would have obtained a more favorable result in the absence of error.’ ”].) Accordingly, we consider it proper and appropriate to address defendant’s claim notwithstanding the lack of an objection below.
Concerning the claim of judicial estoppel, the Attorney General notes that defendant moved for a new trial due to alleged prosecutorial misconduct, in that the prosecutor argued that voluntary manslaughter requires provocation that would cause an average person to kill; defendant did not, however, claim that instruction directing jurors to consider how an average person would react was erroneous; rather he embraced it. Thus, the Attorney General argues that defendant should be estopped from changing his position and challenging the instruction on appeal.
“ ‘ “ ‘Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.]...’ ” [Citation.] The doctrine [most appropriately] applies when: “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” ’ [Citations.] [¶] ‘ “ ‘The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies. [Citation.]’ ” ’ [Citation.] Consistent with these purposes, numerous decisions have made clear that judicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary. [Citations.]” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.)
Although defendant embraced CALCRIM No. 570 as correct, it was not an unqualified embrace. Defendant asserted that “it is appropriate to direct the jury to consider how an ordinary person would react in the same situation as the defendant because the jury must decide if such an ordinary person would ‘act rashly and without deliberation and reflection, and from passion rather than judgment.’ But it is nonsense to assert that the ‘plain meaning’ of his directive in any way suggests that [to] convict of manslaughter the jury must find that an ordinary person would react to the defendant’s situation by using lethal force. CALCRIM [No.] 570 says nothing of the sort, which is why the jury in this case was not instructed that provocation is only legally adequate if it would lead an average person to resort to lethal force.”
On appeal, defendant claims, in essence, that the instructional directive is flawed because it allows jurors to consider whether the provocation would cause an average person to kill in determining whether that provocation was legally sufficient.
Defendant’s qualified acceptance of the instruction below and his challenge to it on appeal reflect a consistent position concerning the standard for determining provocation and the proper meaning of the instruction. Moreover, we do not find that defendant achieved some sort of advantage below by accepting the instruction and now seeks to gain a second advantage by challenging it. Nor do the circumstances persuade us to conclude that estoppel is necessary to maintain the integrity of the judicial system and protect the Attorney General from an unfair legal strategy. On the contrary, given the fundamental consistency of defendant’s positions below and on appeal, we believe it would be manifestly unfair to apply judicial estoppel to his claim. Accordingly, we decline to exercise our discretion to do so.
The Merits of Defendant’s Claim
We now turn to the merits of defendant’s claim that instructional error tainted the jury’s determination of whether there was sufficient provocation for heat-of-passion voluntary manslaughter.
“When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277, italics in Dieguez; People v. Fiu (2008) 165 Cal.App.4th 360, 370-371; see Estelle v. McGuire (1991) 502 U.S. 62, 72-73; Boyde v. California (1990) 494 U.S. 370, 378-381.)
With this in mind, we first analyze CALCRIM No. 570. The instruction first describes the elements of heat of passion and correctly informs jurors that, among other things, there is an objective component: the defendant must have acted as a result of provocation that “would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” (CALCRIM No. 570.) The instruction requires jurors to decide the subjective component—“whether the defendant was provoked”—and the objective component—whether “the provocation was sufficient.” (Ibid.) It then provides guidance concerning the latter determination by directing jurors to consider two questions: (1) would an average person have been provoked; and (2) how would an average person have reacted under the same circumstances. As noted, defendant’s claim focuses on the second question.
On its face, the language directing jurors to consider how an average person would react is not necessarily incorrect or inconsistent with objective requirement for provocation because, as defendant acknowledged below, it allows jurors to properly focus on whether an average person “would react rashly and without due deliberation.”
However, we note that the challenged instructional language is broad and unqualified. Directing jurors to consider how an average person would react naturally invites jurors to decide what conduct would and would not be a reasonable response to the provocation. More specifically, the instructional directive allows jurors to consider whether the provocation would cause an average person to do what the defendant did: commit a homicide. However, as we explain below, whether an average person would be provoked to kill is not a proper consideration in determining the sufficiency of provocation. Thus, insofar as the instructional language permits the jury to decide crucial issue based on proper and improper considerations, it is ambiguous.
We note that the corresponding CALJIC instruction defining heat of passion and provocation—CALJIC No. 8.42—is not similarly ambiguous. It provides, in pertinent part, “The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up [his] [her] own standard of conduct and to justify or excuse [himself] [herself] because [his] [her] passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted [him] [her] were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. Legally adequate provocation may occur in a short, or over a considerable, period of time. [¶] The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment.” (CALJIC No. 8.42 (Spring 2009), italics added.) The italicized portion has long been part of this instruction. (See, e.g., People v. Ogen (1985) 168 Cal.App.3d 611, 621, fn. 6.)
In People v. Najera (2006) 138 Cal.App.4th 212 (Najera), the trial court instructed the jury on voluntary manslaughter. During final argument, the prosecutor focused on “how” the killer responded to the provocation and argued that it would not cause an average person to kill. On appeal, the court concluded that such argument was erroneous and improper. The court explained, “The focus [of a heat of passion defense] 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 p. 223.)
Although the court in Najera discussed the propriety of the prosecutor’s argument, it concluded that the defendant forfeited his claim of prosecutorial misconduct by failing to object at trial. (Najera, supra, 138 Cal.App.4th at p. 224.) The court then rejected a claim of ineffective assistance of counsel based on the failure to object. The court concluded the omission was necessarily harmless because there was insufficient evidence of provocation to warrant voluntary manslaughter instructions in the first place. (Id. at pp. 224-226.)
We find Najera’s analysis of the prosecutor’s argument to be sound. The analysis simply reinforces the well-settled, qualitative standard for provocation—i.e., that it be sufficient to cause an ordinarily reasonable person to act from passion rather than judgment. (See People v. Hurtado (1883) 63 Cal. 288, 292 [“provocation sufficient to excite an irresistible passion in a reasonable person”]; People v. Logan (1917) 175 Cal. 45, 49 [provocation “sufficient to arouse the passions of the ordinarily reasonable man”]; People v. Manriquez (2005) 37 Cal.4th 547, 583-584 [conduct “sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection”].)
More importantly, the analysis prevents the qualitative standard for provocation from being distorted by the quantitative notion that to be legally sufficient, provocation must trigger a certain heightened level of reactive conduct—i.e., lethal force. Such a notion is erroneous. What reduces an unlawful killing in the heat of passion from murder to voluntary manslaughter is a state of mind obscured by passion that negates the mensrea of malice required for murder. (People v. Carasi (2008) 44 Cal.4th 1263, 1306; People v. Johnston (2003) 113 Cal.App.4th 1299, 1311.) That passionate state of mind can be any violent, intense, high-wrought, or enthusiastic emotion, except revenge, including anger, rage, and fear of death or bodily harm. (People v. Lasko, supra, 23 Cal.4th at p. 108; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704-1705 (Fenenbock).) Thus, for the purpose of negating malice, provocation is sufficient if it would trigger such a state of mind in a reasonable person. It need not further cause a reasonable person to react with lethal violence.
The Attorney General claims that the analysis in Najera is incorrect. As did the prosecutor below, the Attorney General cites Fenenbock, supra, 46 Cal.App.4th 1688 and People v. Superior Court (Henderson) (1986) 178 Cal.App.3d 516 (Henderson) for the proposition that, in deciding whether provocation is sufficient, jurors may consider how an average person would react and whether it would have caused an average person to kill. According to the Attorney General, jurors could find that provocation would cause an average person to act rashly but properly conclude that provocation was insufficient because it would not have caused an average person to react so rashly as to kill the victim.
In Fenenbock, the court concluded that there was insufficient evidence to require instructions on voluntary manslaughter. In particular, the court found no evidence that the defendant impulsively killed the victim in response to a report that the victim had molested a child (the subjective component). Moreover, because the defendant and the child were not related, the defendant had no personal bond with the child or the child’s parents, and the child suffered no visible injury, the court found “no evidence here from which the jury could have found provocation so serious that it would produce a lethal response in a reasonable person” (the objective component). (People v. Fenenbock, supra, 46 Cal.App.4th at p. 1705.)
According to the Attorney General, Fenenbock implicitly recognizes that jurors properly may consider whether an average person would have been provoked to kill in determining the sufficiency of provocation. In context, however, the court’s statement does not reasonably support that proposition. Fenenbock did not involve, and the court did not address, the challenged language in CALCRIM No. 570, the standard for determining the sufficiency of provocation, or the propriety of considering whether provocation would cause an average person to react with lethal force. The court simply determined that there was insufficient evidence of provocation to require heat-of-passion instructions. Thus, the single sentence cited by the Attorney General does not reflect a reasoned analysis of the instructional issue before us or suggest that Najera is incorrect.
The Attorney General’s reliance on Henderson is equally misplaced. There, in a footnote, the court stated, “The concept of ‘heat of passion’ allows a defendant to reduce a killing from murder to manslaughter only in those situations where the provocation would trigger a homicidal reaction in the mind of an ordinarily reasonable person under the given facts and circumstances. (See People v. Jackson (1980) 28 Cal.3d 264, 305-306....)” (Henderson, supra, 178 Cal.App.3d at p. 524, fn. 4.) The issue in Henderson was whether the magistrate’s findings and conclusion after the preliminary hearing that the killing occurred in the heat of passion precluded a prosecution for murder. (Id. at p. 520.) The reviewing court did not address, or even consider, the instructional issue before us, and in that case, the court’s statement is dictum. Moreover, People v. Jackson, supra, 28 Cal.3d 264 (overruled on other grounds, People v. Cromer (2002) 24 Cal.4th 889, 901, fn. 3), which the Henderson court cited, does not support its dictum or suggest that it is proper to consider whether the provocation would cause an average person to kill. Thus, the Henderson dictum does not undermine the analysis in Najera or convince us that it is legally incorrect.
In Jackson, the court stated, “ ‘Heat of passion’ has been defined as ‘ “such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances....” ’ [Citation.] As for the element of provocation, ‘there is no specific type of provocation required by section 192 and... verbal provocation may be sufficient. [Citation.]’ [Citation.] In [People v. Berry (1976) 18 Cal.3d 509], for example, we held that the provocative conduct by defendant’s wife which could arouse a passion of jealousy, pain and sexual rage in ‘a man of average disposition’ was sufficient to require instructions on voluntary manslaughter. [¶] In the present case, the record indicates that defendant may have become enraged and brutally attacked and killed one of his elderly victims because she awakened during the burglary and began to scream. No case has ever suggested, however, that such predictable conduct by a resisting victim would constitute the kind of provocation sufficient to reduce a murder charge to voluntary manslaughter.” (People v. Jackson, supra, 28 Cal.3d at pp. 305-306.)
Finally, we observe that in deciding the sufficiency of provocation based on whether it would cause an average person to act rashly and from passion rather than judgment, the jury does, in a sense, consider how an average person would react. However, that does not mean that jurors should be instructed to consider generally how an average person would react, and neither Fenenbock nor Henderson suggests that they should be. Moreover, the recent revision of CALCRIM No. 570 ensures that jurors will not be so instructed. (See fn. 2, ante.)
We now return to the merits of defendant’s claim. The mere fact that CALCRIM No. 570 is ambiguous does not, standing along, automatically establish instructional error. Instructional error depends on whether there is a reasonable likelihood that jurors misunderstood and misapplied the instruction. (Estelle v. McGuire, supra, 502 U.S. at p. 72-73; People v. Mayfield (1997) 14 Cal.4th 668, 777 [“For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.”].) In making that determination, we consider the entire record, including the arguments of counsel. (People v. Dieguez, supra, 89 Cal.App.4th at pp. 276-277; e.g., People v. Cain (1995) 10 Cal.4th 1, 36; People v. Moore (1988) 47 Cal.3d 63, 87-89; People v. Kelly (1992) 1 Cal.4th 495, 526.)
Here, after the parties rested, the prosecutor, in his opening argument, barely mentioned voluntary manslaughter but did urge the jury to find the evidence of provocation insufficient. Defense counsel, however, stated that provocation need only cause an average person to act rashly and argued that the provocation was sufficient. In response, the prosecutor reiterated the definition of provocation. He conceded that there was provocation in this case. He then offered what in his view were textbook examples of provocation that would cause a homicidal rage—e.g., a spouse’s discovery of infidelity; and a parent’s discovery of a child’s molestation by a neighbor. The prosecutor argued that although defendant might have been provoked, the question is “how a person of average disposition would react.” He noted that defendant reacted angrily to Lal because he dared to fight back. “[S]o that’s why he goes to that car to get that gun that he knew was there: to return and execute Mr. Lal.” He continued, “[a] person of average disposition would not have reacted to this situation. If every time a person....” At that point, defense counsel objected on the ground that the prosecutor had misstated the law. Counsel correctly asserted that the proper standard is simply whether an average person would react rashly. However, the court overruled the objection and allowed the prosecutor to continue. “A person of average disposition would not have gone to the car and retrieved a gun and executed Mr. Lal. It’s not what an average person of average disposition would do. [¶] The person of average disposition waits for the police to arrive. The person of average disposition tells the police, ‘I’ve just been the victim of a savage beating.’ The person of average disposition waits for the ambulance to arrive. That’s what the person of average disposition does.”
The prosecutor’s argument was essentially the same as the improper argument in Najera and reflected the wrong standard for determining the sufficiency of provocation and a misapplication of the instructional language in CALCRIM No. 570. Moreover, given Najera and mindful of counsel’s objection, the trial court, in our view, should have intervened, corrected the prosecutor’s erroneous and improper argument, and admonished jurors that the applicable standard is whether provocation would cause an average person to act rashly and without due deliberation and not whether an average person would do what defendant actually did and kill Lal. Because the court overruled defense counsel’s objection and allowed the prosecutor’s improper argument, jurors could have inferred that the prosecutor had not misstated the law and that his argument and analysis were legally correct.
Under the circumstances, we agree with defendant’s second claim of prosecutorial misconduct. Simply put, it is improper for the prosecutor to misstate the law, even if the misstatement was inadvertent and unintentional. (People v. Hill (1998) 17 Cal.4th 800, 822, 829; see People v. Benson (1990) 52 Cal.3d 754, 793 [“What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant.”].)
We acknowledge that the court instructed the jury that “if it believed the attorneys’ comments on the law conflict[ed] with [the court’s] instructions [on the law], [the jury] must follow [the court’s] instructions.” (Italics added; see CALCRIM No. 200.) Ordinarily, we may presume that jurors follow that instruction. (See People v. Hovarter (2008) 44 Cal.4th 983, 1005; People v. Valladares (2009) 173 Cal.App.4th 1388, 1400.) However, it is not reasonable to presume that the jury disregarded the prosecutor’s erroneous argument because the jurors had no reason to think that the argument conflicted with the language of CALCRIM No. 570. Indeed, his argument was entirely consistent with the instructional directive to consider how an average person would react, and, as noted, the court overruled defense counsel’s claim that the prosecutor had misstated the law.
We acknowledge that in Najera, the court presumed the jury followed the court’s warning to follow its instructions and disregard argument to the extent it conflicted with the instructions. However, in Najera, the court gave CALJIC No. 8.42 (see fn. 2, ante) and the prosecutor’s argument was not consistent with that instructional language. Thus, it was reasonable for the court to presume that the jury disregarded it.
In sum, the challenged instructional language represented as an analytical tool designed to help the jury determine whether provocation was sufficient. Given its ambiguity, the prosecutor’s erroneous analysis and application of that language, and the court’s failure to correct the prosecutor’s misstatement, we find a reasonable likelihood that the jury misunderstood and misapplied that language and the standard for determining the sufficiency of provocation.
Prejudice
Defendant contends the instructional error was prejudicial under both the federal constitutional standard set forth in Chapman v. California (1967) 386 U.S. 18 and the state constitutional standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson). The Attorney General claims any error was harmless under both standards.
Heat-of-passion voluntary manslaughter is a lesser included offense of second degree murder. It is settled that failing to instruct, failing to give adequate instructions, and giving erroneous instructions on a lesser included offense constitute errors of state, not federal, law. (People v. Lasko, supra, 23 Cal.4th 101, 111-113; People v. Blakeley (2000) 23 Cal.4th 82, 93; People v. Lee (1999) 20 Cal.4th 47, 62; People v. Breverman (1998) 19 Cal.4th 142, 164-179.) Thus, the Watson standard applies.
To convict defendant of second degree murder, the prosecution had to prove beyond a reasonable doubt not only that defendant acted with malice but also that he did not act in heat of passion. (See CALCRIM No. 570; CALJIC No. 8.50 (Spring 2009).)
The Attorney General argues that the alleged instructional error was harmless because the evidence of provocation was so “slight” that, as a matter of law, the court should not have instructed on heat-of-passion voluntary manslaughter instructions in the first place. The Attorney General notes that defendant had pre-existing hostility and animosity toward Lal and had threatened him in the past. On the day of the incident, defendant threatened and assaulted Batra; he then fought both Batra and Lal; he walked away but came back to fight them; and, after they beat him, he retrieved a gun he had in his car, loaded it, returned, and shot Lal. According to the Attorney General, these facts constituted overwhelming evidence that defendant instigated the fight and killed Lal as a result of pre-existing malice, motivated by revenge, rather than any rashness or intense emotion.
“Generally, it is a question of fact for the jury whether the circumstances were sufficient to arouse the passions of the ordinarily reasonable person. [Citations.] However, where the provocation is so slight or so severe that reasonable jurors could not differ on the issue of adequacy, then the court may resolve the question. [Citations.]” (People v. Fenenbock, supra, 46 Cal.App.4th at p. 1705.) In determining whether there is enough evidence of provocation and heat of passion to deserve consideration by the jury, the trial court may not weigh the evidence or determine the credibility of witnesses, for those are tasks for the jury. (People v. Breverman, supra, 19 Cal.4th at pp. 162, 177 [a court determines only the “bare legal sufficiency” and “not its weight”]; People v. Mayberry (1975) 15 Cal.3d 143, 151; People v. Randle (1992) 8 Cal.App.4th 1023, 1029.)
While a simple tussle may not constitute sufficient provocation (e.g., People v. Gutierrez (2009) 45 Cal.4th 789, 827), a more severe physical attack can be sufficient. (E.g., People v. Elmore (1914) 167 Cal. 205, 211 [physical blows sufficient provocation]; People v. Castro (1940) 37 Cal.App.2d 311, 315 [attack with a knife sufficient provocation to mandate instructions].)
Here, we presume the trial court found that beating defendant with a metal pipe and a wooden board—indeed, breaking one board on him and getting a second board to continue the beating—and taking his shirt, which contained checks totaling a substantial sum, constituted sufficient provocation to warrant instructions. If the provocation here were insufficient then it would be hard to imagine what would be sufficient. (See People v. Le (2007) 158 Cal.App.4th 516, 530.) In our view, reasonable jurors, properly instructed would have had no trouble finding sufficient provocation, and the record is very far from precluding such a finding as a matter of law.
Defendant infers that the prosecutor also found the evidence of provocation sufficient to warrant instruction because he did not object when the court said it would give instructions, he requested that the court give CALCRIM No. 570, and he admitted to the jury that there was provocation.
The Attorney General’s reliance on People v. Johnson (2003) 113 Cal.App.4th 1299 (Johnson) is misplaced. There, the defendant, armed with a knife, went to the home of his ex-girlfriend, Tasha, who had recently moved there. He banged on the doors and windows and shouted obscenities. He was told to leave but refused, threatened to kill the entire family, and demanded to talk to Tasha. He also challenged one of her brothers to come outside. Finally, Tasha came out, pushed the defendant off the porch, and told him to leave. However, he returned to the porch, pounded on the door, and challenged Tasha’s other brother to a fight. That brother came outside, and a fight ensued, during which the defendant repeatedly stabbed Tasha’s brother, killing him. (Id. at pp. 1304-1305.) Although the jury convicted the defendant of murder, the trial court reduced the conviction to voluntary manslaughter, finding no malice because the defendant acted in the heat of passion upon a sudden quarrel. (Id. at pp. 1305, 1308-1309, 1311.)
In reversing, the appellate court concluded that, as a matter of law, the circumstances did not negate malice. The court held that “a defendant who provokes a physical encounter by rude challenges to another person to fight, coupled with threats of violence and death to that person and his entire family, is not entitled to claim that he was provoked into using deadly force when the challenged person responds without apparent (or actual) use of such force.” (Johnson, supra, 113 Cal.App.4th at p. 1303.)
Here, when defendant first arrived at Lal’s warehouse, he confronted and attacked Batra. Soon after, Lal joined the fight against defendant. Had defendant killed Batra or Lal during that scuffle, then the Johnson rule would seem to apply because defendant initiated the fight and, therefore, should not be permitted to claim that he was provoked by their resistance to his initial attack.
However, there was evidence that the initial fight ended, defendant retreated from Batra and Lal, and walked away without his shirt to Gallery Press. There, he told Mehdizadeh that he had been robbed and was going to retrieve his money. Mehdizadeh then saw Batra and Lal armed and waiting for defendant. There is no evidence that defendant assaulted or initiated a second fight. Rather, Mehdizadeh testified that Batra and Lal set upon and started beating defendant before he reached them. After a while, they stopped, and defendant left again. He returned within three or four minutes with a gun and shot Lal.
Simply put, the record does not establish that defendant caused Batra and Lal to arm themselves and then attack him as he approached. Rather, reasonable jurors could find that Batra and Lal initiated the second fight, which in turn, provoked defendant. Under the circumstances, therefore, we do not find that the Johnson rule, as a matter of law, precluded defendant from claiming that he was provoked by the beating.
The Attorney General alternatively argues that even if there was sufficient evidence of provocation, the record establishes as a matter of law that defendant had sufficient time to cool off and regain his reason and judgment before he returned to and shot Lal. The Attorney General notes that defendant had three to four minutes to cool off; and his conduct after the shooting—fleeing, driving to his warehouse, having his employee stash his briefcase, concealing his gun, and giving his employee directions to the hospital—“demonstrate[ed] his abilities to reflect coolly upon what had happened, upon what he was doing, and upon his own guilt.”
Like provocation, the adequacy of a cooling off period is measured against an objective standard: did enough time pass 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. Thus, where reasonable jurors could not disagree on the issue, the court may resolve it. (People v. Daniels (1991) 52 Cal.3d 815, 868; see CALCRIM No. 570.)
Here, however, reasonable jurors could disagree concerning whether an average person, after being repeatedly beaten with a board and pipe by two people, would calm down and regain reason and judgment within three or four minutes, especially if, he or she were bleeding from a two- to three-inch head laceration and had a concussion. (Cf., e.g., People v. Berry, supra, 18 Cal.3d at pp. 515-516 [20 hours between last provocative act and killing not, as a matter of law, sufficient cooling off period]; People v. Brooks (1986) 185 Cal.App.3d 687, 695 [same re two hours].) Moreover, defendant’s conduct after the shooting is not particularly strong evidence that he had cooled off and regained his judgment by the time he shot Lal. And notwithstanding the conduct noted by the Attorney General, Doctor Tai testified that after the beating, defendant seemed “out of his mind,” angry, and upset. Mehdizadeh said that after the shooting, defendant was dazed. And the employee who drove defendant to the hospital said defendant was not “in his sense” and was like “a fainted man.”
Finally, on the issue of prejudice, not only was there sufficient, and in part uncontroverted, evidence of provocation, but also the issue of provocation was a pivotal issue, and, contrary to the Attorney General’s view of the evidence, the question of whether defendant acted in the heat of passion was, in our view, a close question. Thus, the instructional error and prosecutor’s argument struck at the heart of a viable defense to murder. Together the instructional error and argument encouraged and made it easy for the jury to reject voluntary manslaughter on the theory that although a reasonable person may have been provoked, he or she would not have killed Lal.
Under the circumstances, the instructional error undermines our confidence in the jury’s verdict on the murder charge. Given the evidence, we find that in the absence of the error, it is reasonably probable that at least one juror would have had a reasonable doubt that defendant acted with malice and not in the heat of passion. (People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we conclude that the error was prejudicial.
The instructional error could not have had a prejudicial effect on the jury’s determination and verdict on the assault with a firearm charge or the enhancement for personal use because neither requires malice. Thus, although defendant’s murder conviction must be reversed, his assault conviction and attendant enhancement remain.
The Appropriate Remedy
Section 1260 provides, in relevant part, “the court may... modify a judgment appealed from, or reduce the degree of the offense or attempted offense....” Under that section “ ‘[a]n appellate court is not restricted to the remedies of affirming or reversing a judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial. [Citations.]’ [Citation.]” (People v. Edwards (1985) 39 Cal.3d 107, 118.)
In further briefing concerning the appropriate remedy if the court found prejudicial instructional error, defendant opines that the murder conviction should be reduced to voluntary manslaughter. The Attorney General agrees that we may reduce the murder conviction but asserts that the case should be remanded and the prosecutor given the option to retry the murder charge, and if that option is declined, then the conviction should be reduced.
We agree with the Attorney General’s approach. Where, as here, “a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.” (People v. Kelly, supra, 1 Cal.4th at p. 528; People v. Hayes (2006) 142 Cal.App.4th 175, 184.)
IV. Disposition
The judgment is reversed with directions as follows: If the District Attorney does not elect to retry the murder charge and enhancement allegation to that charge within 60 days after the filing of the remittitur in the trial court pursuant to section 1382, subdivision 2—unless time is waived by defendant—the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect convictions for (1) voluntary manslaughter (§ 192) with an enhancement for personal use of a firearm (§ 12022.5) and (2) assault with a firearm (§ 245, subd. (a)(2)) with an enhancement for personal use of a firearm (§ 12022.5), and shall resentence defendant accordingly. (E.g., People v. Edwards, supra, 39 Cal.3d at p. 118 [similar disposition]; People v. Woods (1992) 8 Cal.App.4th 1570, 1596 [same]; People v. Garcia (1972) 27 Cal.App.3d 639, 648 [same].)
I CONCUR: PREMO, J
BAMATTRE-MANOUKIAN, J., Concurring in the judgment only.
THE FACTS
In June 1992, defendant Romesh Kanda went to a warehouse in San Jose used by the victim Ramesh Lal to confront Lal about a missing shipment defendant thought Lal had intercepted. Lal’s brother, Suresh Batra, had spoken on the phone to defendant earlier that day, trying to explain to defendant what happened to the missing shipment. During that call, although defendant had threatened Batra, Batra told defendant that he could come to the warehouse.
When defendant arrived, he parked in front of a nearby warehouse used by Hidayat Mehdizadeh, and walked to Lal’s warehouse. Batra walked out of Lal’s warehouse and, after he and defendant exchanged words, they exchanged blows. Lal drove up and joined Batra in the fight, and both Lal and Batra received injuries. After a few minutes, defendant stopped fighting and walked back to his car, shirtless. Lal had defendant’s shirt in his hand when Lal returned to his warehouse. In the pocket of the shirt were uncashed checks made out to defendant.
At Mehdizadeh’s warehouse, defendant told Mehdizadeh that he had been robbed and he asked Mehdizadeh to call 911. Defendant then said that he was going to get his money back, and he returned to Lal’s warehouse. When defendant approached Lal and Batra unarmed, they hit him with a metal pipe and a piece of wood. They continued to hit defendant after he fell to the ground. When they stopped, defendant walked to his car, opened the trunk, and removed a briefcase. He closed the trunk, opened the briefcase, and removed a gun. He loaded the gun as he walked back to Lal’s warehouse. When he dropped one of the bullets, he picked it up and continued on.
Lal was standing just inside his warehouse when defendant approached with the gun. Defendant fired shots which hit Lal in the head and leg, killing him. Defendant then turned the gun toward other workers in the warehouse. The workers ran, and defendant followed while pointing his gun at them. He fired additional shots, one of which hit a worker in the right foot. Defendant followed other workers out of the warehouse. He unloaded the gun as he walked back to his car. He then put something back in his briefcase, put the briefcase in the car, got in, and drove off.
Defendant went to his own warehouse. He handed an employee his briefcase and told the employee not to give it to anyone. Another employee drove defendant to the hospital in defendant’s car while defendant gave him the directions. Defendant had lacerations and contusions, but no fractures or internal injuries. Bullets and spent casings were later seized from the briefcase and an unloaded gun was found inside the trunk of defendant’s car.
THE FIRST TRIAL
In December 1993, defendant was convicted by a jury of second degree murder and assault with a firearm, and the jury found true the allegations that defendant personally used a firearm during the commission of the offenses. In March 1994, the trial court sentenced defendant to 19 years to life in state prison. This court affirmed defendant’s conviction on appeal, and our Supreme Court denied his petition for review. After our Supreme Court held in People v. Lasko (2000) 23 Cal.4th 101, 107-111, that the giving of the standard instruction on voluntary manslaughter (CALJIC No. 8.40) is improper because an intent to kill is not a necessary element of that offense, defendant filed a petition for writ of habeas corpus in federal district court. Pursuant to an order by the Ninth Circuit Court of Appeals relying on Lasko, the district court granted the petition and vacated defendant’s conviction. Criminal proceedings were reinstated in July 2006.
THE SECOND TRIAL
At defendant’s second trial, held in December 2006, the trial court instructed the jury, pursuant to CALCRIM No. 522, that provocation may reduce a murder to manslaughter; that the weight and significance of the provocation, if any, was for it to decide; and that it was to consider the provocation in deciding whether defendant committed murder or manslaughter. The court further instructed the jury, pursuant to the January 2006 version of CALCRIM No. 570, as follows: “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 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 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 person would react in the same situation knowing the same facts. [¶]... [¶] If enough time has 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 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.” (Italics added.)
CALCRIM No. 570 was revised in December 2008 to state: “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 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, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment. [¶] 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.” (Italics added.)
The language italicized above in the revised instruction is similar to the language in CALJIC No. 8.42, which was given at defendant’s first trial, and which states in part: “The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment.”
Defendant did not object at the second trial when the trial court stated during the on-the-record discussions regarding the proposed jury instructions that it intended to give CALCRIM No. 570. Nor did he object to any language in CALCRIM No. 570 as given. The jury convicted defendant of second degree murder and assault with a firearm and found that he personally used a firearm during the commission of both offenses. In his motion for new trial based on alleged prosecutorial misconduct, defendant did not claim that the instruction was erroneous. Rather, he specifically claimed that CALCRIM No. 570 “is a correct instruction.”
THIS APPEAL
Citing People v. Najera (2006) 138 Cal.App.4th 212 (Najera), defendant now contends that the above italicized portion of the January 2006 version of CALCRIM No. 570 is an erroneous statement of the law, and that the issue may be addressed on appeal despite the lack of objection below because the error affects his substantial rights. He acknowledges that the instruction accurately states that, to be sufficient to reduce murder to manslaughter, the provocation must cause a person of average disposition “to act rashly and without due deliberation, that is, from passion rather than from judgment.” He argues, however, that the instruction erroneously told the jury, “[i]n deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such person would react in the same situation knowing the same facts.” (Italics added.) He contends that the instruction “focuses the jurors on the reasonableness of the defendant’s response in addition to the nature of the provocation, [and] improperly suggest[s] that the provocation required to reduce murder to manslaughter is a provocation that would cause an ordinary person to kill.”
In Najera, the defendant was sitting, drinking beer, and joking around with Victor Hernandez in front of the house where they both rented rooms, when Hernandez called the defendant a “ ‘jota’ ” (translated as “faggot”). After the defendant objected and Hernandez again called the defendant a “ ‘fag,’ ” Hernandez stood up and pushed the defendant. The defendant fell back, then got up and fought with Hernandez. Name calling went back and forth and the two became increasingly angry. They were separated by a neighbor. Hernandez remained in the front yard and the defendant went inside. After being inside for about five to ten minutes, during which time he went into the bathroom, kitchen, and his bedroom, the defendant returned to the front yard. He walked straight to Hernandez and slashed him in the stomach three times with a knife he had taken from the kitchen. The defendant left when the neighbor said that police were on their way. Hernandez was transported to the hospital by paramedics but died within hours. The knife used to slash Hernandez was never found. (Najera, supra, 138 Cal.App.4th at pp. 216-217.)
On appeal, the defendant argued in part that his conviction for second degree murder should be reduced to voluntary manslaughter because the prosecutor misstated the law of murder and voluntary manslaughter during closing argument. (Najera, supra, 138 Cal.App.4th at p. 219.) However, the defendant’s trial counsel did not object at trial to any of the challenged statements. (Id. at p. 224.) The defendant, therefore, argued that his trial counsel was ineffective by failing to object to the misstatements or by failing to request that the mistakes be corrected. (Id. at p. 225.) The appellate court found that the defendant was not entitled to an instruction on manslaughter. “ ‘ “[W]ords 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.” ’ [Citation.]” (Id. at p. 226.) Nevertheless, the appellate court addressed whether the prosecutor incorrectly stated the law on sudden quarrel or heat of passion.
During closing argument, the prosecutor stated: “ ‘Heat of passion is not measured by the standard of the accused. We don’t care what the accused did. We don’t care what the standard is for the accused. As a jury, you have to apply a reasonable, ordinary person standard, okay. [¶] Going back to that intruder hypothetical. Any reasonable, ordinary person walking in on a child being molested, if they had a gun in their hand, would probably do the same thing. It’s that same hypothetical that was given to you in voir dire by defense. Remember the spider in the sink, the reasonable spectrum? Would a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody? That’s the standard.’ (Italics added.) [¶] During rebuttal, the prosecutor stated: ‘[T]he reasonable, prudent person standard... [is] based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that’s not a reasonable person standard.’ (Italics added.)” (Najera, supra, 138 Cal.App.4th at p. 223.)
The appellate court found that the italicized portions of the prosecutor’s arguments were “incorrect.” (Najera, supra, 138 Cal.App.4th at p. 223.) “An unlawful homicide is upon ‘a sudden quarrel or heat of passion’ if the killer’s reason was obscured by a ‘ “provocation” ’ sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. [Citation.] 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.” (Ibid.) However, the appellate court found that “[t]he prosecutor interspersed correct statements of the law with the incorrect ones.” (Id. at p. 224.) In addition, the trial court correctly instructed the jury to follow the court’s instructions, not the attorneys’ description of the law, to the extent there was conflict, and the appellate court presumed the jury followed that instruction. (Ibid.) Accordingly, the appellate court determined that the defendant was not prejudiced by the prosecutor’s argument and found no ineffective assistance of counsel. (Id. at p. 228.)
I do not understand Najera to hold that neither the prosecutor nor the defense counsel may argue the facts of the case. Nor have I found any published opinion that concludes that an attorney may not argue that the facts and circumstances of the case do or do not support a finding that “[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.” (CALCRIM No. 570.) As long as the attorney correctly focuses “on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly” (Najera, supra, 138 Cal.App.4th at p. 223), the attorney’s argument is not improper. Therefore, I do not believe that the prosecutor in this case committed misconduct by arguing that the facts and the surrounding circumstances of Lal’s killing did not support a finding that there was sufficient provocation to warrant reduction of the killing from murder to voluntary manslaughter. Nor do I believe that the trial court erred by allowing the prosecutor to make that argument. In addition, I observe that the court also instructed the jury with CALCRIM No. 200, that, if the jurors believed the attorneys’ comments on the law conflicted with the court’s instructions on the law, they must follow the court’s instructions, and we must presume that the jury obeyed that admonition. (Najera, supra, 138 Cal.App.4th at p. 224; People v. Boyette (2002) 29 Cal.4th 381, 436.)
On appeal, defendant does not challenge his conviction for assault with a firearm and the enhancement for personal use of a firearm. Thus, I agree with the majority that defendant’s conviction for assault with a firearm and the enhancement for personal use of a firearm should be affirmed. Defendant seeks reduction of his murder conviction to voluntary manslaughter. He contends that the January 2006 version of CALCRIM No. 570 is an incorrect statement of the law on voluntary manslaughter to the extent that it tells 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 person would react in the same situation knowing the same facts.” (Italics added.) The December 2008 revision of CALCRIM No. 570 has replaced the challenged language with language similar to language contained in CALJIC No. 8.42. CALCRIM No. 570 now states: “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.” As CALCRIM No. 570 was revised after defendant’s second trial to change the challenged language to language similar to the language contained in CALJIC No. 8.42, which was given at defendant’s first trial, I agree that the prosecutor should be given the option of either retrying defendant for second degree murder or accepting a reduction of the conviction to voluntary manslaughter. Accordingly, I concur in the judgment only.
This was the second trial. In the first trial, defendant was convicted of second degree murder, and this court affirmed the judgment. (People v. Kanda (July 12, 1995, H012347) [nonpub. opn.].) Later, however, the federal district court granted defendant’s petition for a writ of habeas corpus and reversed his conviction due to error in instructing the jury that an intent to kill is an element of voluntary manslaughter. (Kanda v. Larson (N.D.Cal. May 12, 2006, No. C 01-3767 CW) 2006 WL 1313158; see Kanda v. Larson (9th Cir. Mar. 17, 2006, No. 04-15461) 2006 WL 701156; People v. Lasko (2000) 23 Cal.4th 101, 107-111 [intent to kill is not a necessary element of voluntary manslaughter].)
It should also be noted that CALCRIM No. 570 was revised in December 2008, and the only change eliminated its problematic ambiguity. It no longer directs jurors to consider “how” an average person would react. Rather, it now mirrors CALJIC No. 8.42 and provides, in relevant part, “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, in the same situation and knowing the same facts, would have reacted from passion rather than judgment.” (CALCRIM No. 570 (2009-2010), italics added.)