Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F11235
CANTIL-SAKAUYE, J.
A jury found defendant Charles Edward Lee guilty of second degree murder (Pen. Code, § 187) and found true an allegation he used a knife as a deadly weapon in committing the offense. (§ 12022, subd. (b)(1).) The trial court found defendant had a prior felony conviction for assault with a deadly weapon under section 245 that qualified both as a serious felony (§ 667, subd. (a)) and as a strike. (§§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to an indeterminate term of 30 years to life, plus a determinate term of one year under section 12022, subdivision (b)(1) and five years under section 667, subdivision (a).
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant claims the trial court erred in ruling defendant’s proposed expert witness testimony regarding the victim’s bipolar disorder was character evidence that would open the door to rebuttal evidence regarding defendant’s character for violence. He asserts numerous jury instruction errors and error by the trial court in responding to jury questions. He claims prosecutorial misconduct in closing argument, ineffective assistance of his trial counsel, and cumulative error. We shall affirm the judgment.
FACTUAL BACKGROUND
In late 2003, Crystal Wells, a 40-year-old woman with a drug problem and a history of theft, lived in a home owned by her mother Dorothy Shaver on Clay Street in Sacramento. Shaver rented the house to women who have had problems with drugs. Jacqueline Avery was the only other tenant of the Clay Street house to be home on Christmas night 2003.
In the early morning hours of December 26, 2003, Avery was awakened by the sound of a table tipping over. She heard Wells say in a loud voice, “Get the fuck out of here.” Avery got up and went to see what was going on. When she got to the door to the kitchen, Avery saw Wells standing near the open back door looking outside. Wells said somebody had broken into the house and that she had been stabbed. Wells asked Avery to call her mom, who lived next door, and to tell her she had been stabbed. Wells went upstairs to her bedroom.
Avery called Shaver, but did not tell her that Wells had been stabbed. When Shaver came over four to seven minutes later, she and Avery went upstairs where they found Wells collapsed on her stomach on the floor. Shaver called 911 and, at the operator’s direction, started CPR. The police and an ambulance arrived, but it was too late; Wells was dead.
An autopsy of Wells showed she had an inch-long knife wound on her upper right arm, a two-inch-long knife wound at the base of her neck, and a stab wound to her left chest. The first two wounds were superficial and not life-threatening, but the stab wound to her chest penetrated her heart, causing her death. The angle of the wound was from front to back, approximately 20 degrees from right to left, and approximately 10 degrees downward from horizontal. A person with such a wound to the heart could talk, stand, and walk for some brief period of time before becoming unconscious. Wells also had small abrasions on her forehead and left thigh. Wells’s blood-alcohol level measured 0.13 percent and she had methamphetamine, cocaine, and cocaine metabolite in her system when she died.
Police found evidence of a struggle in the house, including a large area rug askew and a telephone stand knocked over. A button with some threads attached to it was found on top of the rug. In Wells’s bedroom upstairs, police found two used narcotics smoking pipes. A piece of foil with residue and soot was found under the edge of a chaise, a baggie containing methamphetamine was found behind the back of the chaise, and on top of a storage chest was a cell phone. Defendant’s name was displayed on the face of the phone. The police looked at the call list on the phone, which led them to look for a woman named Denise Hysaw and eventually led them to an address on Huron Street.
Police arrived at the Huron Street address around 8:15 p.m. that evening. When police told Charles Fields, who answered the door, that they were looking for Hysaw and defendant, Fields directed them upstairs to where defendant was sleeping. After waking defendant, police asked him to come downtown to make a statement. In the subsequent interview with police, defendant denied being at Wells’s house the previous night or any other time. Defendant claimed he did not know what the police were talking about when they asked him for his story of what happened at the Clay Street house. He denied knowing Wells or anyone living at the house. When police pointed out defendant’s shirt was missing a button, defendant said it had been missing for years. At trial, a criminalist testified the button found at the crime scene likely came from defendant’s shirt.
As police were leaving the Huron Street address, Hysaw walked up. She was taken in and questioned. Hysaw testified at trial that she called defendant’s cell phone on the night of December 25/26. Defendant said he was about two blocks away and they agreed to meet. However, defendant did not appear when Hysaw walked in the direction she expected to meet him. Hysaw walked to the house on Huron Street where she was invited by Fields to come inside and wait. Fifteen to 20 minutes later, Hysaw saw defendant walking up to the house. When he came in the door, Hysaw saw he had a small knife in his hands. There appeared to be a little blood on the tip of the knife. Defendant went into the kitchen to wash his hands and the knife. Hysaw asked defendant several times if he had any methamphetamine without any response from defendant. Eventually, defendant said, “No, I don’t have any shit [drugs]. It’s gone. She took it.” Later defendant added he stabbed or “shanked” her. Defendant said, “I can’t believe that bitch took my shit. She took it. I can’t believe that.”
When Hysaw asked defendant what had happened, defendant explained that on the way to meet Hysaw, a woman (Wells) came up to his car. Defendant decided to sell the woman the drugs he was going to share with Hysaw. The woman said she needed to go to her house to get the money, so defendant drove her back to her house. Defendant and the woman went inside and upstairs as defendant had agreed to let the woman try the drugs. The woman got her paraphernalia and smoked some of the drugs. When defendant glanced over, however, all the drugs were gone. He asked the woman if she wanted to go ahead and buy the drugs, but she said, “No, it’s time for you to go.” Defendant told her he would be glad to go as soon as he got either his drugs or the money. The woman repeated, “No, it’s time for you to go.” She stood up and walked to the door. Defendant looked for his stuff, but when he did not see it, he told the woman he wanted his stuff. The woman pushed and/or tugged him, telling him, “You gotta go. You gotta go.” Defendant demanded his stuff before he would go. Then they began to tussle. Defendant told Hysaw he stabbed the woman once in the neck and once in the chest. (Hysaw told police the night she was questioned that defendant said he stabbed or cut the woman three times.) According to Hysaw, after this conversation defendant noticed his cell phone was missing. He thought he left it in his car, but Hysaw checked the car and it was not there.
A few hours later, Hysaw saw a news report of the incident indicating the victim was dead. She told defendant of the report. A couple of hours later, defendant and Hysaw left the Huron Street house to look for drugs. At one point, they visited defendant’s brother, Floyd Lee. Hysaw heard defendant ask Lee whether Lee had heard about the stabbing. Defendant told his brother he was involved. When his brother asked what happened, defendant told him he was letting her try the drugs and the next thing he knew, the drugs were gone. Defendant told his brother he still had the knife. Lee told defendant to get rid of it. Hysaw did not actually see the knife being turned over, but it sounded like the knife was thrown out. Defendant and Hysaw left, found some drugs and went back to the house on Huron Street where they did the drugs, had sex and took a nap. Defendant was still asleep when Hysaw woke up and left for the store. When she returned, she saw police cars in front of the house and officers were bringing defendant out in handcuffs.
Defendant’s brother (Lee) testified defendant and a woman came over to his home on the morning of December 26, 2003. Defendant looked tired and said it had been a bad night. Defendant handed Lee a little knife and asked Lee to keep it for him. Lee put it in a coat pocket. Lee denied wrapping it in a towel before putting it in the pocket. Lee testified defendant never said he hurt anybody. Police later contacted Lee, who led them to the knife, which the police found wrapped in a towel and placed inside a pocket of a jacket inside a closet. According to the forensic pathologist, the knife seized by the police could have inflicted Wells’s injuries.
Criminalist Michael Toms testified defendant’s urine sample at the time of his arrest showed amphetamine, methamphetamine and cocaine metabolite. Wells’s autopsy blood sample showed methamphetamine, cocaine and cocaine metabolite. The effects of a single dose of methamphetamine or cocaine in the first four hours included mild euphoria, excitation, exhilaration, increased strength, increased alertness, rapid speech, decreased appetite, motor restlessness, and overall poor impulse control. In the last four to 24 hours, as the person was coming down, the person would experience nervousness, anxiety, paranoia, possibly agitation and aggression, an intense craving for more drugs, and ultimately extreme fatigue. If a person took more than a single dose, the effects could be amplified.
Defendant testified on his own behalf. He testified he drove to Del Paso Heights around 2:30 a.m. on December 26 looking for a prostitute. He had in his possession one-sixteenth of methamphetamine and a $20 piece of cocaine. Defendant saw three women standing near the corner of Grand and Clay. He recognized two of them as prostitutes. He pulled over and parked. The woman he did not know, who turned out to be Wells, came over to his car. They discussed the possibility of a date, Wells got into defendant’s car, and they agreed to a price of $20. Defendant drove to the Huron Street house, but it was occupied, so they went to Wells’s house. On the way Wells asked defendant if he had any drugs.
When they arrived at the Clay Street house, Wells seemed fidgety and told defendant to hurry up. She collected a smoking pipe from a BBQ pit and they went inside the house and upstairs to her bedroom. Wells asked if they could smoke some of the dope before they had sex and defendant agreed. They smoked defendant’s cocaine and shared some of the methamphetamine. Defendant stripped to his underwear and Wells took off her pants. She began dancing around in her underwear. Defendant asked to use the bathroom and Wells directed him downstairs.
Defendant went down the stairs, but it was dark, so he turned around and went back upstairs to ask Wells to show him where the bathroom was located. When defendant reentered the bedroom, Wells had her back to him. She had defendant’s pants and was going through the pockets. Defendant startled her when he asked her what she was doing. She turned around and her whole demeanor changed. She appeared to be mad at defendant for some reason. Wells threw defendant his pants and told him to get dressed and get out. Defendant said okay and started putting his clothes back on. Wells went downstairs.
As defendant followed after Wells, he checked his jacket pocket for the drugs, money and cell phone that had been in the pocket earlier. It was all gone. At the bottom of the stairs, defendant saw Wells standing at the open back door. She had her right hand behind her back. Defendant asked where his belongings were. Wells told him to just go ahead and leave. Under the impression she was hiding his belongings behind her back, defendant reached for Wells’s right arm with his left arm. Wells suddenly drew back and defendant saw she had a knife in her hand. Wells lunged at defendant, who being scared and panicked, immediately grabbed her wrist to keep from being stabbed. They struggled over the knife. With her left hand, Wells repeatedly hit defendant on the top of his head. She was hollering and cussing, telling him to “get the fuck out.” Wells forced defendant backwards. Defendant tripped over something, slipped and fell on his back. Defendant still had a hold of Wells’s arm and as he fell, defendant pulled Wells down on top of him and the knife. Defendant kept twisting Wells’s wrist to get the knife out of her hand. When he succeeded, he rolled over and pushed Wells off of him. He jumped up and ran out of the house. He had no idea Wells was hurt. He looked back when he reached his car and saw Wells at the door. He heard her cussing and saying, “I called the fucking police.” If he had known she was hurt, defendant testified he would have tried to get medical assistance.
When he returned to Huron Street, defendant claimed he told Hysaw and Fields that he had an altercation with a female at her house, she had pulled a knife on defendant, they struggled and defendant took the knife from her. Prior to leaving Fields’s house, defendant heard news of a break-in or something in the same area in which he had been. Defendant went out to the car and got the knife. He noticed a little blood and told Fields, “Man, you know, the lady, she must have got cut or something.” He put the knife in his pocket.
Later, when defendant was at his brother’s home, his brother asked defendant if it was possible that the news was about the same incident defendant had been involved in. Defendant said no. Lee asked defendant to take Hysaw home and then come back to discuss it. As defendant was leaving, defendant handed the knife to Lee to hold onto until defendant got back. Defendant drove back to Fields’s house. He was so tired that he laid down and fell asleep. He remained asleep until an officer shook his foot to wake him up.
Defendant admitted two felony convictions, for a theft in 1998 and for passing bad checks in 2001. He admitted lying to the police when he was questioned that night. According to defendant, he did not want to discuss the matter and it was his way of ending the conversation.
On rebuttal, Shaver testified her daughter was left-handed. The parties stipulated a doctor had tested Wells’s grip strength during a medical examination in 2002, which also indicated she was left-handed.
DISCUSSION
I.
Defendant’s Proposed Expert Testimony Regarding Wells’s Bipolar Disorder
During Shaver’s testimony at trial, she mentioned her daughter (Wells) had been diagnosed with and treated for bipolar disorder. In response, the defense obtained Wells’s medical records and had them reviewed by Dr. Albert Globus.
Defendant proposed to have Globus testify (1) as to what constitutes bipolar disorder, (2) the effects of narcotics on the human brain, (3) the interaction between the effects of bipolar disorder and the effects of narcotics, and (4) as to a hypothetical regarding the expected range of behaviors exhibited by a person with certain levels of blood alcohol and narcotics. Defendant claimed Globus would testify, “that a person with bi-polar disorder who uses narcotics will have faulty thought processes and perceptions.” Defendant argued such testimony would be used to rebut the notion that defendant broke into the house as claimed by Wells through the testimony of Avery. Defendant also claimed Globus would testify, “that a person with a bi-polar disorder can be ‘grossly irritable and irrational’ and can be extremely aggressive” and “that such a person’s judgment is impaired and their inhibitions are reduced.” Defendant argued such testimony would be used to support defendant’s assertion that he reasonably feared for his life and/or safety.
The prosecution took the position defendant’s proposed expert witness testimony regarding Wells’s mental condition was character evidence, which included evidence of Wells’s propensity for violence. While admissible, the introduction of such evidence, according to the prosecution, would make admissible rebuttal evidence of defendant’s character for violence under Evidence Code section 1103, subdivisions (a) and (b) (section 1103). The prosecution cited in support of its position People v. Jones (1954) 42 Cal.2d 219, In re Cheryl H. (1984) 153 Cal.App.3d 1098 (disapproved on other grounds in People v. Brown (1994) 8 Cal.4th 746, 755, 764), and People v. Stoll (1989) 49 Cal.3d 1136.
Section 1103, subdivision (a), provides: “In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).”
The trial court concluded the proposed evidence was relevant and admissible, but it was character evidence, under the authorities cited by the prosecution, that would open the door to the prosecution’s evidence of defendant’s character for violence. Defendant suggested the trial court was “missing the other point about if I have a doctor testify not about violence, then how far -- then what he may testify to. Because that’s what triggers this whole issue is the testimony about violence. If he testifies about misperceptions, irritability, changes in behavior, that kind of thing, that doesn’t necessarily invoke [section] 1103 character for violence.” The trial court found the relevance was still for defendant’s claim of self-defense. Defendant said it was relevant to “his perception.” The trial court stated that if Globus testified along the lines indicated by the defense, the evidence would “put the victim’s character at issue. And if it puts the victim’s character at issue, it puts the defendant’s character at issue.” The court ruled the prosecution would be permitted to introduce evidence concerning defendant’s prior acts of violence if Globus testified along the lines previously indicated. Defendant did not call Globus to testify.
On appeal, defendant claims the trial court’s ruling was an abuse of discretion and also violated his rights to due process and to present a defense. Defendant claims the proposed evidence of Globus was not evidence of Wells’s character for violence within the meaning of section 1103, but was only offered to show Wells’s likely state of mind at the time of the crime so as to support defendant’s testimony that he acted in self-defense in response to her sudden and irrational behavior. Defendant argues this case is similar to People v. Long (2005) 126 Cal.App.4th 865. We disagree.
Defendant’s offer of proof claimed Globus would testify “that a person with a bi-polar disorder can be ‘grossly irritable and irrational’ and can be extremely aggressive” and “that such a person’s judgment is impaired and their inhibitions reduced[.]” Defendant argued this evidence would support his claim of reasonable fear for his life and/or safety. Later defendant apparently offered to have Globus not use the term “violence, ” but to testify about “misperceptions, irritability, changes in behavior, that kind of thing[.]” (Italics added.) Defendant said this testimony was relevant to show “his perception.” (Italics added.)
The Law Revision Commission comment to Evidence Code section 1101, regarding the use of character evidence to prove conduct, defines a person’s “character” as “his propensity or disposition to engage in a certain type of conduct[.]” (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 1101, p. 438.) In People v. Long, supra, 126 Cal.App.4th 865, this court stated, “[c]haracter evidence is ‘evidence regarding someone’s general personality traits; evidence of a person’s moral standing in a community based on reputation or opinion.’” (Id. at p. 871, quoting Black’s Law Dict. (7th ed. 1999) p. 576, col. 2.)
It is clear from defendant’s offer of proof and arguments that defendant intended to use Globus’s testimony to show Wells had a mental condition or “personality traits” that caused her to have a “propensity” or a “disposition” to act irritably, irrationally, and aggressively and, therefore, she was likely to have acted in accordance with such disposition or traits in her actions towards defendant that night after smoking drugs with him. Indeed, defendant argued such testimony would be used to support his assertion that he reasonably feared for his life and or safety. Defendant’s proposed use of Globus’s testimony supported defendant’s claim of self-defense because it was directed at Wells’s character for violence, that is, her actions reasonably caused defendant to fear for his life. If Wells’s actions did not include any suggestion of violence, they would not have been relevant to support defendant’s claim of his reasonable fear of Wells. Defendant did not propose to limit his use of the testimony to show Wells’s state of mind; he wanted the evidence admitted in order to support his perception, that is, his state of mind of reasonable fear.
Defendant’s proposed use of Globus’s testimony was analogous to the use of expert testimony regarding a psychiatric diagnosis as character evidence in In re Cheryl H., supra, 153 Cal.App.3d 1098 and People v. Stoll, supra, 49 Cal.3d 1136.
In In re Cheryl H., supra, 153 Cal.App.3d 1098, a psychiatrist was allowed to testify regarding the results of a standardized psychological test administered to the father of a child. The psychiatrist used those tests as part of the basis for her opinion that the child had been sexually abused by her father. (Id. at pp. 1109-1110.) The reviewing court found such testimony was character testimony inadmissible in a civil action. We find the following comments of the court relevant here:
“Dr. Powell [the psychiatrist’s] opinion also rested to a lesser extent on the results of a standardized psychological test administered to [father]. He tested very high on the passive-dependency scale and exhibited highly guarded and defensive tendencies. According to Dr. Powell, studies indicate a high proportion -- 85 percent -- of fathers committing sexual abuse against their children have these personality traits. This intermediate finding, in turn, was used as part of the raw material for Dr. Powell’s expert opinion on the ultimate issue of who sexually abused Cheryl. [¶] This latter inference, in particular, requires no expertise in psychiatry or sexual abuse of children. It is strictly a matter of logic. But where does the logic carry us? It leads us to the conclusion [father] had a character trait, a propensity to sexually abuse children, and acted in conformance with that propensity in this instance by sexually abusing his daughter. This inference is prohibited by section 1101 of the Evidence Code which bans character evidence in civil cases. [¶] It makes no difference that it is an expert’s opinion rather than lay testimony about specific acts which is being used to establish the existence of this propensity. . . . Here a psychological study was used to demonstrate that certain character traits are linked with certain behavior, that is, that someone with these traits (a passive-dependent personality) has a propensity or disposition to engage in that behavior (sexual abuse of their children). Then a psychological test was used to prove [husband] exhibited those traits. These studies and tests and the opinions based on them are relevant only if employed ‘as a basis for an inference that [husband] behaved in conformity with that [propensity or disposition] on a particular occasion.’ (Law Revision Com. com., Evid. Code, § 1101.) Hence this is merely an exotic variety of character evidence and is inadmissible in a civil action.” (In re Cheryl H., supra, 153 Cal.App.3dat pp. 1123-1124, fns. omitted.)
In People v. Stoll, supra, 49 Cal.3d 1136, the Supreme Court found the trial court erroneously excluded defendant’s proposed testimony from a psychologist who would have provided an expert opinion that defendant did not possess any “pathology” in the nature of “sexual deviation, ” based on interviews and professional interpretation of standardized personality tests of the defendant. (Id. at pp. 1146, 1149, 1152, 1161.) Defendant wanted to use the opinion to show she had no predisposition to commit the charged lewd and lascivious acts. (Id. at pp. 1146-1147.) Citing People v. Jones, supra, 42 Cal.2d 219, 222, the Supreme Court found the proffered testimony was character evidence (Stoll, supra, at p. 1152), which should not have been excluded by the trial court on the basis of Kelly/Frye. (Id. at p. 1161.)
Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014; People v. Kelly (1976) 17 Cal.3d 24, 30 [governing admission of new, novel, or experimental scientific techniques not previously accepted in the courts].
These two cases demonstrate expert opinion regarding a person’s psychological diagnosis or traits can be character evidence when used to show the person’s likely actions or lack of action in conformity with such diagnosis or traits. Defendant proposed such a use of the proffered expert testimony in this case.
This proposed use of the evidence distinguishes this case from People v. Long, supra, 126 Cal.App.4th 865, where this court determined the testimony of a psychologist regarding a victim’s borderline personality disorder did not require a jury instruction to the effect that the jury could consider the character of the witness for honesty or truthfulness or their opposites in judging the believability of the witness. (Id. at pp. 870-872.) In Long, the evidence was admitted to explain and aid the jury in understanding the victim’s mental disorder. It was used to show the victim’s capacity and perception of reality. (Id. at p. 871.) Therefore, we concluded the evidence was not of the victim’s character for untruthfulness. (Id. at p. 872.)
Here defendant’s offer of proof showed he intended to use the testimony of Globus as character evidence to show Wells acted in conformity with the described characteristics of bipolar disorder. This in turn circumstantially supported his claim that he actually and reasonably believed he was in imminent danger of death or great bodily injury from Wells, i.e., that his killing of Wells was justified by self-defense. As the character evidence involved Wells’s character for aggression or violence, the trial court correctly ruled its introduction would open the door for the prosecution to admit evidence of defendant’s character for violence.
II.
Failure to Give Three Specific Jury Instructions Regarding Self-Defense
Defendant claims the trial court erred in failing to instruct the jury (1) regarding defendant’s right to use reasonable force to recover his stolen property, (2) that where the original aggressor is not guilty of a deadly attack, but of a simple assault or trespass, the victim has no right to respond with deadly or other excessive force, that if the victim does use such force, the aggressor’s right of self-defense arises, (the second paragraph of CALJIC No. 5.54, 2004 revision, self defense by an aggressor) and (3) a defendant may use deadly force to repel the forcible and atrocious crime of robbery. We take each claim in turn.
A. The Trial Court Did Not Err In Failing To Instruct Regarding A Person’s Right To Use Force To Recover Stolen Property
Defendant claims the trial court had a sua sponte duty to instruct the jury as part of the instructions provided on self-defense that defendant had a right to use reasonable force to recover his stolen property. Defendant cites constitutional, statutory, and case authority for such a right.
However, with one exception, the authorities cited by defendant concern a person’s right to “protect” or “defend” their property. Specifically, article I, section 1 of the California Constitution states all people have inalienable rights including, among others, “enjoying and defending life and liberty, acquiring, possessing, and protecting property[.]” (Italics added.) In Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, the California Supreme Court held “only that there is no duty to comply with a robber’s unlawful demand for the surrender of property.” (Id. at p. 829.) Fawkes v. Reynolds (1922) 190 Cal. 204, involved the right of a person to use reasonable force to defend himself and his property against a physical attack. (Id. at pp. 212-213.)
The only authority cited by defendant that does not involve the protection or defense of property is People v. Tufunga (1999) 21 Cal.4th 935. In that case, the California Supreme Court held that a claim of right (good faith belief in right or claim to specific personal property) is still recognized as a defense to a criminal charge of robbery because it negates the necessary felonious intent required under section 211. (Id. at pp. 943, 945-950.) In recognizing the Legislature’s continuance of the claim-of-right defense to criminal liability for robbery, however, the Supreme Court certainly did not approve the forcible recovery of stolen property. (See id. at pp. 938-939, 950-956.)
Indeed, none of the authorities cited by defendant provide a person with a privilege to use force to “retrieve” already stolen property. Such a principle would in fact be at odds with the general rule “‘that one who is or believes he is injured or deprived of what he is lawfully entitled to must apply to the state for help. Self-help is in conflict with the very idea of the social order. It subjects the weaker to risk of the arbitrary will or mistaken belief of the stronger. Hence the law in general forbids it.’” (Daluiso v. Boone (1969) 71 Cal.2d 484, 500.)
Defendant has not shown the trial court erred in failing to instruct the jury that defendant had an affirmative right to use reasonable force to recover his stolen property.
B. The Trial Court Did Not Err In Failing To Instruct The Jury With The Second Paragraph Of CALJIC No. 5.54 (Self Defense By An Aggressor)
Defendant contends the trial court erred by failing to instruct the jury that, “‘Where the original aggressor is not guilty of a deadly attack, but of a simple assault or trespass, the victim has no right to use deadly or other excessive force. . . . If the victim uses such force, the aggressor’s right of self-defense arises.’ [Citation][.]” (People v. Quach (2004) 116 Cal.App.4th 294, 301.) This rule was at the time of defendant’s trial reflected in the second paragraph of CALJIC No. 5.54 (2004 Re-revision).
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) The trial court must include sua sponte instructions “‘on particular defenses and their relevance to the charged offense . . . if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186.) However, “[t]he judge is required to instruct only on general principles that are necessary for the jury’s understanding of the case; the judge need not instruct, without request, on specific points or special theories that might be applicable to the particular case.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 610, p. 869; see People v. Garvin (2003) 110 Cal.App.4th 484, 489.) “The trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.” (People v. Wade (1959) 53 Cal.2d 322, 334, overruled on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381.)
Here the trial court provided the standard instructions on self-defense based on defendant’s version of the events, under which defendant claimed he reached for Wells’s arm, but she drew back, revealing a knife in her hand. Wells then lunged at defendant and defendant grabbed her arm to prevent her stabbing him. Under these facts, we conclude the instruction regarding an original aggressor’s simple assault being met by deadly force from the victim is a special theory on which the trial court had no duty to instruct in the absence of a request. (People v. Bloyd (1987) 43 Cal.3d 333, 354.)
Defense counsel failed to request this instruction, but his failure to make such request was not ineffective assistance of counsel. “A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome.” (People v. Ochoa (1998) 19 Cal.4th 353, 414; see Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].) “‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citations.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” [Citation.] [¶] In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]’ [Citation.]” (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Here defense counsel reasonably may have tactically chosen not to request an instruction that was premised on defendant being the original aggressor, a label and focus which counsel may have wanted to avoid.
C. The Trial Court Did Not Err In Failing To Instruct That Robbery Is A Forcible And Atrocious Crime
The trial court instructed the jury with CALJIC No. 5.16 that, “[a] forcible and atrocious crime is any felony that by its nature and the manner of its commission threatens, or is reasonably believed by the defendant to threaten life or great bodily injury so as to instill in him a reasonable fear of death or great bodily injury.” The jury was further told, “[m]urder is a forcible and atrocious crime.” Defendant claims the trial court should also have instructed the jury that the crime of robbery is a forcible and atrocious crime. We disagree.
While a robbery may be a forcible and atrocious crime as a matter of law in certain cases (see People v. Ceballos (1974) 12 Cal.3d 470, 478), such is not the case here. According to defendant’s testimony, Wells stole defendant’s drugs, money, and/or cell phone without any use of force or fear and, under defendant’s version of events, only later used the knife to scare defendant into leaving and in response to defendant’s attempt to get his property back. While these facts may be sufficient to establish a robbery by Wells (see People v. Cooper (1991) 53 Cal.3d 1158, 1165), it was up to the jury to decide whether the “nature and the manner of [the robbery’s] commission threaten[ed], or [wa]s reasonably believed by the defendant to threaten life or great bodily injury so as to instill in him a reasonable fear of death or great bodily injury.” (CALJIC No. 5.16.) The jury was properly so instructed under the general definition of a forcible and atrocious crime.
III.
The Trial Court’s Responses To Jury Question Nos. 5, 6 and 8 On The Concept of “Heat Of Passion”
“Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.] If, however, ‘“the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.”’ [Citations.]” (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) Needless to say, any such additional explanations should be correct, responsive, and balanced. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
“A violation of section 1138 does not warrant reversal unless prejudice is shown.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Defendant contends reversal is required here because the trial court provided inaccurate and unbalanced responses to several of the jury’s questions during deliberations. We find no error.
A. Background To Jury Question Nos. 5, 6 And 8 And The Court’s Responses
The trial court instructed the jury on voluntary manslaughter based on both heat of passion and imperfect self-defense. On the third day of jury deliberations, the jury asked for clarification of CALJIC No. 8.44 (No specific emotion alone constitutes heat of passion) “especially the part dealing with felony & the feelings around it related to manslaughter[.] If a felony is about to be committed or was committed, does that negate heat of passion.” (Question No. 5.) While the court and counsel were considering a response, another request was received from the jury. The jury asked, “Is selling cocaine a felony? Is selling meth a felony? Is using the above or buying it a felony? Is prostitution - buying or selling a felony?” (Question No. 6.)
CALJIC No. 8.44 provides: “Neither fear, revenge, nor the emotion induced by and accompanying or following an intent to commit a felony, nor any or all of these emotional states, in and of themselves, constitute the heat of passion referred to in the law of manslaughter. Any or all of these emotions may be involved in a heat of passion that causes judgment to give way to impulse and rashness. Also, any one or more of them may exist in the mind of a person who acts deliberately and from choice, where the choice is reasonable or unreasonable.”
The trial court provided the following response to these questions:
“You have posed the following question:
“[Question No. 5] ‘Please clarify section 8.44, especially the part dealing with felony and the feelings around it related to manslaughter.’
“The fundamental inquiry in this area of the law of homicide, is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion - not necessarily fear or revenge - to such an extent as would render an ordinary person of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather tha[n] from judgment.
“There is no specific type of provocation required by section 192 of the Penal Code, (Voluntary Manslaughter) and verbal provocation may be sufficient depending upon the circumstances of the individual case. ‘Passion’ need not mean ‘rage’ or ‘anger’ but may be any violent, intense, high wrought or enthusiastic emotion.
“[Question No. 6] With respect to question No. 6 you ask:
“A. Is selling cocaine a felony? The answer is yes.
“B. Is selling meth a felony? The answer is yes.
“C. Is using the above or buying it a felony? The answer is yes.
“D. Is prostitution - buying or selling - a felony? The answer is no, those offenses would constitute misdemeanors.
“You ask ‘if a felony is about to be committed or was committed, does that negate heat of passion?’
“Be advised that as a matter of law the fact that a felony is about to be committed or was committed does not, in and of itself, negate heat of passion. It is, however, one factor to take into account in the jury’s determination of whether, under the totality of the circumstances, the defendant acted in the ‘heat of passion.’”
A short time after receiving the court’s response, the jury asked for a read-back of the testimony of criminalist Toms and the attorneys’ arguments. (Question No. 7.) The court reporter provided the requested read-back of testimony, but the court informed the jury that the arguments could not be read back as they were not evidence. A quarter of an hour after the completion of the read-back of Toms’s testimony, the jury submitted another question asking for the definition of “heat of passion.” (Question No. 8.) After a further half hour of deliberations and before the court had responded to question No. 8, the jury informed the court that it was “at an impasse, both as to the main charge & the weapons charge.” The jury, however, continued deliberations and the trial court provided the following response to question No. 8:
“[Question No. 8] You have asked for the ‘definition of “heat of passion.”[’]
“Please be advised that this subject is addressed in your jury instructions, to wit: 8.40 which is voluntary manslaughter defined; 8.42 which is sudden quarrel or heat of passion and provocation explained; 8.43 explanation of whether or not sufficient time has elapsed for heat of passion to end i.e. the so called ‘cooling period’; 8.44 the law explaining that no specific emotion alone constitutes heat of passion.
“These instructions can be found on pages 11 and 12 of your jury instructions.
“Further, the court has attempted to expand on the above legal concepts in the courts previous response to your questions ‘5 and 6’ wherein you asked for clarification of instruction 8.44 ‘especially the part dealing with felony and the feelings around it related to manslaughter.
“Additionally, ‘heat of passion’ arises from some provocation. The provocation must be legally sufficient, that is, it must be the sort of provocation that would cause an ordinary, reasonable person to respond in heat of passion. ‘Heat of passion’ can arise from any provocation that would arouse great anger, fear, jealousy, or other intense emotion. If the provocation is so slight that it would not arouse such an intense emotion in an ordinary, reasonable person, it is not legally sufficient.”
The jury took the evening recess. The following morning the trial court read CALJIC No. 8.74 regarding unanimous agreement as to offense - first or second degree murder or manslaughter to the jury before it resumed deliberations. Around midafternoon, the jury informed the bailiff they had reached a verdict.
B. Forfeiture
Relying on the rule that a party whose counsel agrees at trial with the court’s proposed response to a jury inquiry cannot later challenge the response as being too limited (see, e.g., People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; People v. Medina (1990) 51 Cal.3d 870, 902), respondent contends defendant has forfeited any claims of error “as a result of his trial counsel’s agreement and failure to seek clarification of the court’s proposed response.” Defendant, in his reply brief, argues he is not precluded from arguing on appeal that the trial court’s response was an incorrect statement of law and that the record contains no affirmative consent by his counsel to the responses provided by the trial court, but at most a failure to object.
Although respondent uses the word “waived, ” the proper term is forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver]; People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)
We need not decide whether the issues raised by defendant were forfeited because defendant argues in the alternative ineffective assistance of counsel in failing to object to the incomplete and erroneous instructions. We reach the merits.
C. Analysis Of The Court’s Responses To Question Nos. 5 And 6
Defendant first focuses on the single sentence in the trial court’s response to question Nos. 5 and 6 in which the court told the jury “that as a matter of law the fact that a felony is about to be committed or was committed does not, in and of itself, negate heat of passion.” Defendant complains about the court’s use of the word “negate.” Although the word was likely chosen to correspond to the jury’s question that specifically asked “if a felony is about to be committed or was committed, does that negate heat of passion?” (italics added), defendant contends the use of the word in response incorrectly reflected the substance of CALJIC No. 8.44 and invited the jury to draw inferences favorable to the prosecution.
CALJIC No. 8.44 informs the jury that “[n]either fear, revenge, nor the emotion induced by and accompanying or following an intent to commit a felony, nor any or all of these emotional states, in and of themselves, constitute the heat of passion referred to in the law of manslaughter. Any or all of these emotions may be involved in a heat of passion that causes judgment to give way to impulse and rashness. Also, any one or more of them may exist in the mind of a person who acts deliberately and from choice, whether the choice is reasonable or unreasonable.” (Italics added.) Defendant claims CALJIC No. 8.44 indicates felonious intent may be considered as tending to show, not tending to negate heat of passion, thus, the simple answer to the jury’s question should have been “no.” Instead, the trial court reversed the meaning of the instruction in a manner favorable to the prosecution by using the negative.
We agree that taken in isolation, the trial court’s response that “the fact that a felony is about to be committed or was committed does not, in and of itself, negate heat of passion” (italics added) might suggest, erroneously, that a defendant’s felonious intent subtracts from the emotional equation of heat of passion. However, we do not read the sentence in isolation. Taken as a whole, the response accurately reminded the jury of the “fundamental inquiry in this area” and emphasized that any intense emotion can be considered as part of the referenced “passion.” In fact, immediately following the sentence containing the word “negate, ” the trial court’s response told the jury that felonious intent is “one factor to take into account in the . . . determination of whether, under the totality of the circumstances, the defendant acted in the ‘heat of passion.’” This stated the rule in the positive, not the negative, and instructed the jury to consider the totality of the circumstances. We conclude a reasonable jury would not have read the trial court’s complete response as instructing it to reject heat of passion if it found defendant had a felonious intent.
Defendant, however, contends the response was also inaccurate because it told the jury that a “felony, ” as opposed to a misdemeanor, was one factor it “must” consider in determining heat of passion. In focusing on felonies, CALJIC No. 8.44 and the trial court’s response reasonably directed the jury’s attention to crimes normally involving intense emotions, the kind of emotions which “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.) However, neither CALJIC No. 8.44 nor the trial court’s response purported to provide an exclusive list of the emotions to be considered in determining heat of passion. The response, when read as a whole, did not suggest the jury could not consider the intent involved in prostitution, even though it was a misdemeanor. The response specifically told the jury “passion” “may be any violent, intense, high wrought or enthusiastic emotion.” If the jury found the intent involved in the prostitution defendant claimed was happening in this case contributed to a passion as “would cause the ordinarily reasonable person of average disposition to act rashly” (CALJIC No. 8.42), it was not precluded by the instructions of the trial court from considering it. Moreover, in telling the jury felonious intent was “one factor to take into account” the trial court did not require any particular decision of the jury with respect to such intent.
As there was no error, we reject defendant’s next contention that the trial court’s later response to the jury’s request for a definition of heat of passion (question No. 8) “exacerbated the error” by referring the jury back to its earlier response.
D. Analysis Of The Trial Court’s Response To Question No. 8
Defendant also complains that another portion of the response of the trial court to question No. 8 told the jury that: “‘heat of passion’ arises from some provocation. The provocation must be legally sufficient, that is, it must be the sort of provocation that would cause an ordinary, reasonable person to respond in heat of passion.” (Italics added.) Defendant contends this statement is erroneous as the provocation necessary for heat of passion need “only be such that it would cause an average person to lose reason and render him or her liable to act from passion rather than judgment.” True, the California Supreme Court has stated the fundamental inquiry regarding provocation is “whether it be sufficient to obscure reason and render the average man liable to act rashly.” (People v. Logan (1917) 175 Cal. 45, 50.) However, the Supreme Court has also more recently stated the test for adequate, objective provocation as whether “‘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 such passion rather than from judgment.’” (People v. Barton (1995) 12 Cal.4th 186, 201, quoting CALJIC No. 8.42, italics added.) In a case cited by defendant, the Supreme Court not only stated that “provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment” (People v. Lee (1999) 20 Cal.4th 47, 60), but that the provocative conduct by the victim “must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly . . . .” (Id. at p. 59, italics added.) The trial court’s response was consistent with these authorities.
Finally, defendant argues the trial court’s responses were misleading and unbalanced because the trial court did not include a reminder that the prosecution had the burden of proving beyond a reasonable doubt that heat of passion was not established. The trial court instructed with CALJIC No. 8.50 regarding the prosecution’s burden of proof regarding the absence of heat of passion. Nothing in the jury’s subsequent questions suggested any confusion as to that burden or need for re-instruction regarding that burden. The trial court fulfilled its duty under section 1138 by addressing the issues identified by the jury.
IV.
The Trial Court’s Instructions On Involuntary Manslaughter
The trial court instructed the jury that the unlawful killing of a human being without malice was manslaughter (CALJIC No. 8.37) and instructed regarding voluntary manslaughter (CALJIC Nos. 8.40, 8.42, 8.43, 8.44) and involuntary manslaughter. (CALJIC Nos. 8.45, 8.46.) The trial court instructed the jury on distinguishing murder and manslaughter through CALJIC No. 8.50 and by giving the portion of CALJIC No. 8.51 dealing with the commission of dangerous misdemeanors and criminally negligent lawful acts. The court defined assault with a deadly weapon (CALJIC No. 9.02) and misdemeanor brandishing of a weapon. (CALJIC No. 16.290.)
Defendant argues the trial court’s instructions, specifically the latter portion of CALJIC No. 8.45 (Involuntary Manslaughter Defined) and the misdemeanor section CALJIC No. 8.51 (Murder and Manslaughter distinguished-Nature of Act Involved), erroneously suggested a verdict of involuntary manslaughter could not be returned if the jury found the killing of Wells occurred in the commission of felony assault with a deadly weapon, or indeed, any felony. Defendant contends the instructions, considered with the trial court’s response to jury question No. 6 regarding the felony or misdemeanor characterization of the enumerated crimes, removed involuntary manslaughter from the jury’s consideration if it found the killing took place during the commission of drug use or sales. We disagree.
The jury was instructed with CALJIC No. 8.45, the first part of which informed the jurors of the general principle that “Every person who unlawfully kills a human being, without malice aforethought, and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter.” This provided the jurors with a legally correct definition of involuntary manslaughter that they could apply in reaching their verdict. (People v. Lee, supra, 20 Cal.4th at pp. 61-62.) It encompassed defendant’s claimed defense that he unintentionally killed Wells under the circumstances required for a conviction for involuntary manslaughter.
Although the last part of CALJIC No. 8.45 and CALJIC No. 8.51, as given, highlighted the misdemeanor and criminal negligence forms of involuntary manslaughter, the instructions did not imply there were no other methods to prove involuntary manslaughter. In this sense, the misdemeanor manslaughter instruction was merely “illustrative” of and not “restrictive” on the general theory of involuntary manslaughter. (See People v. Lee, supra, 20 Cal.4th at p. 62.) Nothing in the court’s instructions suggested or even implied that this form of involuntary manslaughter was exclusive. (Ibid.)
The last part of CALJIC No. 8.45, as provided to the jury, stated: “A killing is unlawful within the meaning of this instruction if it occurred: [¶] 1. During the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission; or [¶] 2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. [¶] A violation of Penal Code section 417 (Brandishing a Weapon) is an ‘unlawful act’ not amounting to a felony. [¶] The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A human being was killed; and [¶] 2. The killing was unlawful.”
CALJIC No. 8.51, as given, provided: “If a person causes another’s death, while committing a misdemeanor or infraction which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter. [¶] There are many acts which are lawful but nevertheless endanger human life. If a person causes another’s death by doing an act or engaging in conduct in a criminally negligent manner, without realizing the risk involved, he is guilty of involuntary manslaughter. If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, malice is implied, and the crime is murder.”
A. Defendant’s Claims Of Error Regarding The Prosecutor’s Arguments On Involuntary Manslaughter And The Court’s Response To Question No. 6 Fail
Defendant claims the jury was likely to have understood the instructions explaining involuntary manslaughter as precluding an involuntary manslaughter conviction “if the killing occurred at a time when appellant was committing any felony” (capitalization omitted) because of the prosecutor’s arguments and the trial court’s response to question No. 6, quoted ante. Although we agree the prosecutor made erroneous statements regarding the law of involuntary manslaughter, we do not conclude the jury would likely have understood those comments to change the instructions given by the court. Nor do we view the trial court’s response to question No. 6 as having any likely influence on the jury’s decision regarding involuntary manslaughter. It was clearly asked in connection with the jury’s consideration of voluntary manslaughter and the doctrine of heat of passion.
With respect to defendant’s argument regarding the prosecutor’s comments, the reporter’s transcript reflects the prosecutor stated, in the course of his description of the law regarding involuntary manslaughter, that an unlawful killing was still required and that the unlawful killing had to have occurred in the course of an unlawful act, “but not a felony -- an unlawful act which is a felony, then you’re not in this realm.” (Italics added.) Later the prosecutor made the following argument:
“[F]or it to be involuntary manslaughter, we have to have either a lawful act then with high risk, or a lawful act that has a high risk of danger done without due caution and circumspection.
“Now, if [defendant] is the one who, over drugs, over money, over sex, over cell phone, over whatever, is pulling out a knife and going after [Wells] with a knife, that is not a lawful act. So we can forget about the due caution and circumspection because that is flat not a lawful act.
“Okay. So that one possible alternative for involuntary manslaughter is not there.
“So the other thing, an unlawful act not amounting to a felony, in other words, some misdemeanor was committed which was dangerous to human life in the circumstances in which it was done in this case, he did that without these other things, and that would be another way of getting to involuntary manslaughter.
“Now, the trouble with this is that the unlawful act that he engages in is not a misdemeanor. If all he did was take out the knife and display it or exhibit it, okay, you know, that would be something which is sometimes called exhibiting a deadly weapon or brandishing a deadly weapon, and that is a misdemeanor. And that might be okay.
“But he did more than that, because he went after her with the knife. She sustained three wounds. That’s not just displaying or exhibiting a deadly weapon in a rude manner. That’s assault with a deadly weapon. That’s a felony.
“Since it’s a felony, it doesn’t check this box. And so we also have some of these things up here, because we have either the conscious disregard for human life or the intent to kill, which will also take it out of the involuntary manslaughter.
“But on the basis of these two alone, and certainly with these, it’s not an involuntary manslaughter. You can’t check that box.” (Italics added.)
The italicized portion of the prosecutor’s argument erroneously limited the methods of involuntary manslaughter to the two forms listed in the latter portion of CALJIC No. 8.45. In fact, involuntary manslaughter is an unintentional homicide that may occur during the commission of (1) an unlawful act, not amounting to a felony; (2) in the commission of a lawful act which might produce death, in an unlawful manner, or “without due caution and circumspection” (§ 192, subd. (b)); (3) in the commission of a noninherently dangerous felony if that felony is committed without due caution and circumspection (People v. Burroughs (1984) 35 Cal.3d 824, 835, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89); or (4) in the commission of an inherently dangerous felony, as long as malice and intent to kill are absent (Cameron, supra, 30 Cal.App.4th at pp. 603-605).
However, we note several points.
First, in his argument specifically addressing defendant’s commission of assault with a deadly weapon, the prosecutor stated immediately after his comment “Since it’s a felony, it doesn’t check this box” that “we also have some of these things up here, because we have either the conscious disregard for human life or the intent to kill, which will also take it out of the involuntary manslaughter.” The prosecutor’s latter argument was a correct statement of the law explaining why if defendant killed Wells during the commission of an assault with a deadly weapon-the killing was not involuntary manslaughter. Indeed, a short time earlier in his argument, the prosecutor clearly stated the reason the crime was not involuntary manslaughter “because for involuntary manslaughter, you have to have no malice aforethought, no intent to kill, no conscious disregard for human life.” Thus, we have both incorrect and correct statements regarding defendant’s commission of a felony assault with a deadly weapon.
Second, at the beginning of his argument, the prosecutor told the jury he was using charts in his closing arguments to help explain how different legal concepts related to the law of murder. The prosecutor specifically told the jury his charts did not include all the language that was in the jury instructions. Apparently anticipating there might be some differences between his argument and the trial court’s instructions, the prosecutor stated he was not trying to mislead the jury and expressly told the jury it was bound to follow “what His Honor tells you.”
Third, the trial court gave the jury the following instruction both at the beginning of the trial and in its instructions after the parties had finished closing arguments: “If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” (CALJIC No. 1.00.)
“The court’s instructions are determinative in their statement of law, and we presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70; accord Boyde v. California (1990) 494 U.S. 370, 384-385 [108 L.Ed.2d 316, 331-332].) “This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court.” (Boyde v. California, supra, at pp. 384-385 [108 L.Ed.2d at pp. 331-332].) Here the prosecutor’s misstatement of the law was tempered both by the prosecutor’s own admonition to the jury that it must follow the trial court’s instructions, not his argument, and the trial court’s direction to the same effect. The trial court denied the jury’s request to have the arguments read back to them, so the prosecutor’s argument was not emphasized by repetition. Considering the whole record, we do not view the prosecutorial misstatements as likely to have changed the jury’s understanding of the involuntary manslaughter instructions given.
Nor do we view the trial court’s response to the jury’s question No. 6, which told the jury whether the crimes of drug sales, drug purchase, drug use, and prostitution were felonies or misdemeanors, as suggesting the jurors could not return a verdict of involuntary manslaughter if they believed the killing occurred while appellant was committing one of the felony drug offenses. The context of question No. 6 reflects the jury’s concern with voluntary manslaughter, particularly the heat of passion doctrine, and not involuntary manslaughter. Nothing in the record suggests the jury was asking about the felony and misdemeanor characterization of the crimes for the purpose of excluding involuntary manslaughter. Nothing in the record suggests the jury would have used the court’s response to question No. 6 in a manner inconsistent with the jury instructions, which we have already concluded did not restrict the permissible theories of involuntary manslaughter to misdemeanor unlawful acts.
B. The Trial Court’s failure To Instruct On The Elements Of Assault Was Harmless
Defendant next claims the trial court’s instructions on involuntary manslaughter were incomplete because the trial court instructed the jury with CALJIC No. 9.02 defining assault with a deadly weapon, but failed to provide the jury with CALJIC No. 9.00 defining the term assault. “Assault” has a technical meaning peculiar to the law (People v. McElheny (1982) 137 Cal.App.3d 396, 403-404). Having given the instruction on assault with a deadly weapon, the trial court erred in failing to give an instruction defining assault. (People v. Sheldon (1989) 48 Cal.3d 935, 961.) However, we find the error harmless under any standard. If the jury rejected defendant’s claim of self-defense and believed he produced and used the knife, there was simply no evidence from which it could find only misdemeanor brandishing or battery, but not assault with a deadly weapon. The evidence established beyond a reasonable doubt that Wells suffered three knife wounds, including a fatal stab to her heart. The jury could only have concluded defendant committed an assault as defined under CALJIC No. 9.00. As we have already discussed, the jury was not precluded from finding defendant guilty of involuntary manslaughter if it determined he had committed an assault with a deadly weapon without malice, intent to kill or conscious disregard for human life.
V.
Prosecutorial Misconduct
Defendant claims the prosecutor committed two types of prosecutorial misconduct in closing argument. First, defendant asserts the prosecutor misstated the law relating to voluntary and involuntary manslaughter. Second, “his comments improperly indicated that jurors needed to be able to articulate an ‘important’ reason for finding reasonable doubt.”
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The prosecutor’s good or bad faith is not at issue because the standard by which his or her conduct is evaluated is objective. (People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Alvarez (1996) 14 Cal.4th 155, 213.)
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’” (People v. Prieto (2003) 30 Cal.4th 226, 259, quoting People v. Samayoa, supra, 15 Cal.4th at p. 841 .) “[O]therwise, the point is reviewable only if any admonition would not have cured the harm caused by the misconduct.” (People v. Price (1991) 1 Cal.4th 324, 447.) And “[f]ailure to object rarely constitutes constitutionally ineffective legal representation . . . .” (People v. Boyette (2002) 29 Cal.4th 381, 424.) “If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
Defendant’s failure to object has forfeited most of his contentions on appeal, but given defendant’s alternate ineffective assistance of counsel claims, we consider the merits of defendant’s claims.
A. The Prosecutor’s Arguments Regarding Involuntary and Voluntary Manslaughter
First, defendant claims the prosecutor misstated the law regarding involuntary manslaughter when he limited it to misdemeanor and criminal negligence methods of commission. We have already agreed, but have concluded the jury was not likely to have understood those comments to change the instructions they were given. (Ante, at pp. 38, 40-43.) We reject defendant’s claim that his counsel’s comment stating he had not “talked a lot about the instructions. [The prosecutor], frankly, did a great job, ” reflects defense counsel’s belief that the prosecutor’s argument correctly stated the law on every point. We conclude such comment, as well as the failure to object to the misstatements, may have been a rational tactical choice about the emphasis defendant wished to place on his claim of self-defense, rather than discussing each possible version of the facts in the context of all possible verdicts. In light of our conclusion that the comments were not likely understood by the jury to change the instructions they received, there is also no prejudice to defense counsel’s failure to object.
Defendant also claims the prosecutor misstated the law regarding voluntary manslaughter because he made comments suggesting the provocation would have to be sufficient to cause an ordinary reasonable person “to act” as defendant acted. There was no misconduct. The prosecution’s comments did no more than direct the jury’s attention to the issue of whether the claimed provocation was objectively adequate, that is, “it would cause an ordinary person of average disposition to act rashly . . . .” (People v. Lee, supra, 20 Cal.4th at p. 59; accord People v. Barton, supra, 12 Cal.4th at p. 201.) The argument was properly focused on the objective component of heat of passion. (People v. Lee, supra, at p. 60 [test of adequate provocation is an objective one].)
Defendant claims the prosecutor’s argument suggested the jury had to make affirmative findings that the facts differentiating involuntary and voluntary manslaughter from murder were proven rather than having to find beyond a reasonable doubt that those facts were not proven. Not so. In going through the components of the different legal doctrines, the prosecutor pointed out the various requirements and occasionally used language directing the jury to points on his “two-column list, ” points on his “double column chart, ” or to “move over to” or “move up” or that they “can’t check” a particular “box” on his charts, but no where did the prosecutor suggest in his proposed method of analysis a shifting of the prosecution’s burden to defendant. The prosecution several times reminded the jury it was his burden to prove defendant guilty beyond a reasonable doubt and that the prosecution had to prove the absence of self-defense.
B. The Prosecutor’s Arguments Concerning Reasonable Doubt
Finally, defendant complains the prosecutor incorrectly stated the jurors were required to articulate a reason for any doubt they had, committing misconduct within the meaning of People v. Hill, supra, 17 Cal.4th 800 (Hill). We disagree.
In Hill, supra, 17 Cal.4th 800, the prosecutor argued, regarding reasonable doubt, that there must be some evidence on which to base a doubt. (Id. at p. 831.) The California Supreme Court concluded such argument was prosecutorial misconduct as it was reasonably likely the comments, “taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.” (Id. at pp. 831-832.)
Here the prosecutor suggested to the jurors that they use a two-step process in analyzing proof beyond a reasonable doubt. The first step was to ask, “do I have a doubt?” The second step was to ask “[i]s it an important thing or an unimportant thing[, ]” that is, “do I have a doubt about something that makes a difference?” Defendant objected this argument mischaracterized the standard and cited Hill. Noting this “is a very, very touchy area of the law” where judges and attorneys can “get in trouble, ” the trial court stated, “I cannot say that [the prosecutor] has said anything wrong. I mean, it seems to me what he’s saying is that you can have a doubt -- you can have lots of doubts, but they have to be about things that are important or relevant to the issues. And I don’t take exception that. [¶] But the bottom line is that you have to pay attention to . . . how reasonable doubt is defined in the instructions, which you’ll be given a copy of. It’s 2.90, and that’s the definition you go by. Okay. It’s very important.”
We agree with the trial court that the prosecutor’s comments did not argue any doubt must be supported “by evidence” so as to suggest defendant had the burden of demonstrating reasonable doubt, as was the case in Hill. Nor did the analysis recommended by the prosecutor tell the jury it must, as defendant argues, “articulate a justification for each and every doubt they might have.” The argument merely told the jurors they should evaluate the significance of any particular doubt they have. The use of the term “important” was not likely to be understood by the jury as raising the level of doubt needed for acquittal. Rather, the argument and the trial court’s comments were directed at the portion of the instruction regarding reasonable doubt that informs the jury reasonable doubt “is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt.” (CALJIC No. 2.90.) To be reasonable doubt, the doubt must be relevant to an issue; it must, as the prosecutor stated, “make[] a difference.” There was no misconduct.
VI.
Ineffective Assistance Of Counsel
Defendant claims he received ineffective assistance of counsel through his trial counsel’s failure to request appropriate instructions, failure to object to inaccurate or incomplete instructions, and/or failure to object to the prosecutor’s improper arguments.
We have considered each claim as we considered the underlying merits of defendant’s arguments. Where necessary we have explained why we reject defendant’s claim of ineffective assistance of counsel. Where we have found error, we found no prejudice. Thus, we necessarily reject defendant’s claim of ineffective assistance of counsel. (People v. Ochoa, supra, 19 Cal.4th 353, 414; Strickland v. Washington, supra, 466 U.S. 668 [80 L.Ed.2d 674].)
VII.
Cumulative Error
Finally, defendant contends the cumulative impact of the errors in this case require reversal. We disagree. We have found either no error or no prejudice as to each of defendant’s contentions. We now conclude, “the errors or potential errors, singly or in combination, were harmless under any applicable standard and did not render defendant’s trial fundamentally unfair.” (People v. Davis (2005) 36 Cal.4th 510, 573.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., HULL, J.
Section 1103, subdivision (b), provides: “In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”