Opinion
D074182
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MANUEL LOPEZ, Defendant and Appellant.
Randall Bookout, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FVA1300469-1) APPEAL from a judgment of the Superior Court of San Bernardino County, Gerard S. Brown, Judge. Affirmed. Randall Bookout, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
Victor Manuel Lopez seeks reversal of his conviction and sentence of 25 years to life in prison. He argues: (1) he was improperly denied the opportunity to testify about the suicidal ideation he felt after he killed his wife; (2) a journal entry written by the victim was admitted improperly over his hearsay objections; (3) the prosecutor misstated the law and shifted the burden of proof during closing argument; and (4) the court misstated a jury instruction. For reasons we explain, we conclude there were no reversible errors and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Lopez was convicted of one count of first degree murder in the death of his wife, L.L. (Pen. Code, §§ 187, subd. (a), 189.) The jury also found that Lopez used a deadly weapon in the commission of the murder. (Pen. Code, § 12022, subd. (b)(1).) The court sentenced him to state prison for 25 years to life.
Lopez injured his shoulder in 2011 and was consistently unemployed thereafter. His wife was a nurse who worked two jobs and served as the primary source of income for the family. Lopez and his wife began sleeping in separate bedrooms in 2011. Lopez understood them to be on a timeout so they would not fight and, after two years, expected they would get back together.
In the two years leading up to L.L.'s death, there were several incidents of reported violence. For instance, on April 17, 2011, Lopez kicked his wife's pet Yorkie, sending it up into the air, then landing on its head on the cement. The dog fractured its skull and died. Lopez told the police he was upset because the dog urinated on the carpet. Another time in 2011, Lopez carried his wife downstairs and jumped into the deep end of the pool with her, even though she did not know how to swim. She seemed to be gasping for air after going under.
Lopez's children described other incidents. Once, L.L. locked herself in the bedroom to keep Lopez out. Another time, Lopez threw L.L.'s cell phone across the street so she had to go to the neighbor's house for help. And on a different occasion, Lopez came into the bedroom where some of the children and L.L. were sleeping because Lopez wanted something from L.L. Lopez woke L.L. up and chased her around the room until their older daughter stepped between them. One of his daughters testified that between 2011 and 2013, domestic violence was common. She testified Lopez said he was going to kill L.L., but that he said this all the time. Lopez also admitted he had hit his wife once so hard, he gave her a black eye.
The month before her death, L.L. began dating Dr. M., a doctor at the hospital where she was a nurse. Lopez discovered the relationship on March 8, 2013, and he and his wife argued about text messages she was receiving. Lopez felt hurt; he was angry and yelled; he pushed L.L. Their oldest son held Lopez in a bear hug to keep him from hurting his mother and told her to run so she could be safe. He said his father appeared scared, like "he was going to lose someone he loved to someone else." That same day, Lopez went to the hospital where L.L. was working and screamed for the doctor to stop sleeping with his wife. Lopez left when L.L. said she called security. Lopez also left a voicemail message on the doctor's phone, threatening the doctor unless he stayed away from L.L.
Two days later on March 10, Lopez called the hospital looking for his wife, but discovered she was not at work. He could not locate her because she had taken an overnight trip with Dr. M. That day Lopez seemed to have an anxiety attack, and was taken to the hospital. Lopez's brother-in-law picked him up.
On March 11, L.L. told Lopez she wanted a divorce. Carlos, L.L.'s brother, was present because he was concerned Lopez might hurt himself and worried about the safety of the children. Carlos testified that Lopez seemed sad and cried during the conversation with L.L. Afterward, Lopez and Carlos talked for at least two hours about Lopez pursuing a career or education, getting a job and a place to live, and perhaps getting help for substance abuse. When the two parted, Lopez seemed in good spirits, upbeat, and hopeful. Carlos planned to meet Lopez the next day to help him find a job.
Lopez later spent time talking with his oldest son. Around that time, Lopez left a voicemail for the doctor wishing him luck and explaining that he was going to move on. He also sent his wife a text on March 11 telling her she could be free from him and he wanted her to be happy. The same day, he texted a friend saying he was going to try to find a place to stay near his children because he and L.L. were "done." That night, he played video games with his younger son.
On the morning of March 12, 2013, Lopez contacted Carlos and told him not to pick him up because he wanted to find a job on his own. Carlos reported Lopez seemed to be in good spirits and sounded motivated. Lopez's oldest son testified Lopez seemed calm and upbeat.
Lopez testified that he took his car to search for a job that morning, but it broke down, so he walked home to ask L.L. if he could take her SUV. His car had a history of shutting down. L.L. was getting ready to go out, but she was not dressed for work. When Lopez asked her why she was dressed that way, her response angered him, leading him to yell at her. While they were arguing, L.L.'s phone rang. Lopez testified when he went to get her phone, she kicked him; he saw red and could not control himself. He began hitting her with his fists, and she swung back. As he hit her, blood spattered. Lopez testified he was so enraged, he attacked his wife. He said he "wanted everything to stop," and he grabbed her by the neck and began choking her. She grabbed a flat iron to swing at Lopez, and he took it from her and wrapped the cord around her neck. He testified that as he choked her, he thought of her with another man in his house and of not having her and their children with him. Autopsy evidence showed bruising of her lips, forehead, and face, as well as scratch marks and abrasions, black eyes, and a broken nose. It also showed the ligature had shifted during use, an indication L.L. struggled against him. Lopez choked L.L. for four minutes.
When Lopez took the cord off L.L.'s neck, he realized she was dead. He testified that he wanted to kill himself right then. He cleaned blood off her face, picked her up, and took her downstairs to the SUV, stopping temporarily to put tape on her hands and knees so he could carry her more easily. He put a bag on her face. The chief medical examiner testified if L.L. had not died from the strangulation, the plastic bag would have killed her. Lopez cleaned the bathroom using bleach, and he took the cleaning cloth with him when he left. He put tape tightly around the base of the bag he had placed over L.L.'s head.
He planned to drive with her in the vehicle to Mexico and testified he needed money for the trip, so he stopped at a bank and withdrew $500 from his wife's account. Instead, he went to Los Angeles and used the money to buy a change of clothes and drugs. On his way to Los Angeles, he left his wife's body under a tree, covered.
In Los Angeles, Lopez brought his nephew a black plastic bag filled with bloody clothes and asked his nephew to get rid of it. Lopez had scratches on his face and swollen red knuckles. When Lopez returned later, he wore different clothing and brought cocaine, which the two men used. The nephew tried to help Lopez get a gun, but was not successful. The men purchased crystal methamphetamine.
That morning, Dr. M. had texted L.L., and she texted back she was on her way. When he did not hear from L.L. again, he asked the police to conduct a welfare check. A police officer took a missing person's report at the family home and conducted a walk-through, during which he noticed holes in the wall and repaired damage, caused by Lopez. The responding officer was concerned about the whereabouts of both Lopez and his wife.
On March 14, 2013, Lopez saw himself on the news in a report stating he and his wife were missing. He called his wife's brother or mother and told them he was in Los Angeles, and his wife was not with him. When police arrested Lopez on March 14, 2013, Lopez was under the influence of illegal drugs. He asked if the police had found his wife. Lopez eventually showed the police where he left her body.
DISCUSSION
Lopez makes four claims of error on appeal. He contends (1) he was unable to present a complete defense because the court excluded evidence he was suicidal after killing L.L.; (2) the court's admission of a 2011 journal entry was prejudicial error; (3) the prosecutor's closing argument contained prosecutorial misconduct that constituted prejudicial error; and (4) the trial court gave an incorrect jury instruction, resulting in prejudice to Lopez. None of these claims provide a basis for reversing the conviction. A. Evidence of Postmortem Suicidal Ideation
Lopez contends the court improperly excluded evidence that he had suicidal thoughts after killing his wife, thereby preventing him from offering a complete defense. He argues his postmortem suicidal thoughts are part of a continuum of emotions that shows he was acting out of passion when he killed his wife. Alternatively, Lopez maintains that his suicidal ideations serve to contradict evidence he fled the scene of the crime due to a consciousness of guilt. The Attorney General responds that evidence of postmortem suicidal ideation was properly excluded because the only relevant question was whether the defendant acted out of passion " ' "at the time of the killing." ' " (People v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).) He further contends that even if erroneous, the exclusion of this evidence did not prejudice Lopez in presenting his defense.
The Attorney General also suggests that Lopez forfeited his right to challenge the exclusion of this evidence because he did not timely and appropriately object. We are not persuaded. When Lopez repeatedly attempted to explain that he felt suicidal after killing his wife, the trial court struck the testimony, then admonished Lopez and excluded any further evidence in this regard. Defense counsel made a record, stating his intent to present evidence about Lopez's desire to commit suicide as evidence of heat of passion and alleging his defense was being prevented. Counsel also explained he wanted to introduce the evidence to show that Lopez was not fleeing the scene. The court prohibited testimony about Lopez feeling suicidal after killing his wife, ruling it was not relevant to intent at the time of killing.
All relevant evidence is admissible unless excluded by law. (Evid. Code, §§ 210, 350, 351.) To be relevant, evidence must have a "tendency in reason to prove or disprove any disputed fact that is of consequence to determination of the action." (§ 210.) " 'In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal in the absence of an abuse of that discretion. [Citations.] This discretion is not, however, unlimited especially when its exercise hampers the ability of the defense to present evidence.' " (People v. Valencia (2008) 43 Cal.4th 268, 286, quoting People v. Cooper (1991) 53 Cal.3d 771, 816.)
All further statutory references are to the Evidence Code unless otherwise specified.
Excluding evidence of a minor point does not impair the right to present a defense. (People v. Anderson (2012) 208 Cal.App.4th 851, 880 (Anderson), quoting People v. Boyette (2002) 29 Cal.4th 381, 428.) The proffered evidence must be of significant and substantial value. (Ibid., quoting People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.) "Abuse may be found if the trial court exercised discretion in an arbitrary, capricious or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of judgment. [Citations.]" (People v. Coddington (2000) 23 Cal.4th 529, 587-588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
The inferences argued by Lopez are, at best, weak ones. And even if the proffered evidence had some marginal relevance based on either of Lopez's alternative theories, there is no reasonable likelihood that the exclusion affected the ultimate result in this case. When a trial court permits a defendant to present a defense, but then erroneously excludes some evidence concerning that defense, we apply the Watson standard and consider whether excluding the evidence prejudiced the outcome of the case. (See Anderson, supra, 208 Cal.App.4th at pp. 886-887, citing People v. Watson (1956) 46 Cal.2d 818, 833-834.) This test "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177.)
Lopez relies on Crane v. Kentucky (1986) 476 U.S. 683 to support his position that a complete defense required admission of the evidence of his postmortem suicidal ideations. In Crane, the defendant argued he made a false confession due to the conditions of his interrogation and his own inexperience with the law. (Id. at p. 691.) The court concluded that evidence of the defendant's conditions of confinement was central to his defense. (Ibid.)
Crane is distinguishable because there, unlike here, the defense relied on evidence that had been excluded to make its case. Here, the postmortem suicide evidence was not central to the heat of passion theory, and its exclusion did not prevent Lopez from presenting a defense. The court admitted testimony about Lopez's suicidal thoughts and statements before killing his wife, as well as Lopez's testimony describing his emotions during the killing, which supported heat of passion.
When the trial court considered whether to permit Lopez's daughter to testify regarding statements Lopez made before L.L.'s death about killing himself for the effect on the listener, the court weighed their probative value against potential sympathy for Lopez under section 352 and admitted the evidence after determining they were relevant as premortem statements. !3RT 786-789)!
Additionally, evidence supporting the existing judgment is strong in comparison to Lopez's self-serving testimony of his emotional state after killing L.L. A jury reviewing all the evidence including Lopez's statements regarding his post-mortem thoughts would still likely conclude that he acted with premeditation and deliberation. Thus, it is not reasonably probable Lopez's testimony of suicidal thoughts after strangling his wife would have changed the outcome here. B. Admission of Journal Entry
Lopez contends his wife's 2011 journal entry was inadmissible hearsay because it failed to meet the requirements of any exception, including sections 1370 and 1250. We agree the journal constituted inadmissible hearsay, but find its admission to be harmless error.
1. Additional Facts
Before trial, the court stated it wanted to put on the record matters the parties had discussed in chambers following the previous week's motions in limine. The court noted that as to a journal entry, there had been an issue, and the parties were focusing on the entry from January 31, 2011. The prosecutor commented that she had agreed not to use the other entries.
The record does not include briefing from the motion in limine seeking to exclude journal entries; nor does it include a transcript of the related hearing in chambers.
During the trial, the defense attorney objected to the prosecutor reading the journal entry into the record, but the court interrupted the objection, stating, "Go ahead." The prosecution read almost the entire journal entry into the record. The journal entry began, "Dear God." It explained it had been three years since L.L. had written anything, and that she did not believe anyone but God would understand. She noted Lopez had called her names when he came home from drinking, which had "unlocked memories that [she] suppressed." She described what she could remember: weekends Lopez dragged her name through the mud and hit her, Lopez whipping her twice with a phone cord, and Lopez calling her derogatory names. She described how she repeats in her mind that he does not love, honor, take care of, or respect her. She lamented, "Why, God, do you allow Victor to do and say those things? Will I ever get a chance to feel loved, respected, cared for, comforted, honored, or even liked by my husband in my lifetime?"
In the journal entry, L.L. wrote her lifetime was uncertain, described headaches she had discussed with her doctor, and expressed sadness for being in a situation with a person who hated her and was mean to her. She prayed her children would be successful in life. Then she described other incidents she had suppressed, remembering Lopez's accusations that she slept with someone else and that the children were not biologically his, wanting a paternity test when she was pregnant. She also recalled Lopez bringing someone else home, hitting L.L. in the head, giving L.L. a black eye, choking L.L., and cheating on her. She wrote Lopez forced her to have anal sex with him while he recorded it, insulted her, mentally abused her, and socked her in the face. Her journal entry then asked God to remove Lopez from the family and find a place where he could maintain his faith in God. She asked God to shelter her family from Lopez's "evil, wicked ways", she said he made her feel like a nobody, and wished she did not love him.
2. Forfeiture
The Attorney General argues Lopez forfeited his right to appeal the admission of the journal entry because his objection at trial was ambiguous. Generally, once a court has made a ruling on a motion in limine to admit evidence, the party seeking its exclusion must renew the objection at trial to preserve it for appeal. (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3.) The motion in limine preserves the objection for appeal when the motion advances the specific legal ground and is made at a time when the trial judge can determine the evidentiary question in context. (People v. Ramos (1997) 15 Cal.4th 1133, 1171.) A court's "sufficiently definite and express ruling" on the motion in limine preserves the claim. (People v. Brown (2003) 31 Cal.4th 518, 547.)
While an objection must fairly inform the court of specific reasons for objecting to admission of evidence (People v. Jackson (2016) 1 Cal.5th 269, 366), the ambiguity of the record on this point suggests Lopez may have done so through a pretrial motion and chambers hearing, followed by the objection on the record at trial, which the court interrupted before defense counsel had finished speaking. Accordingly, we consider the issue on appeal.
Lopez contends it was error for the court to admit the journal entry because it referenced events not at or near the time she wrote the journal entry and so was not subject to a hearsay exception under section 1370. We review admission of hearsay evidence under an abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 725 (Waidla).) "It is an abuse of discretion for a trial court to misinterpret or misapply the law." (Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322, 1334; see People v. Smith (2016) 245 Cal.App.4th 869, 873.) We agree section 1370 does not provide a proper basis for the admission of the journal entry.
Section 1370 permits hearsay statements that narrate, describe or explain infliction of physical injury or threat of physical injury when the declarant is not available, the statement is made at or near the time of injury, the statement has indicia of trustworthiness, and it was made in writing, electronically recorded, or made to a physician, nurse, paramedic, or law enforcement official. (§ 1370.) The parties do not dispute that L.L.'s journal entry constituted a written statement, containing descriptions of the infliction of physical injury upon her. However, the statements in the journal were not made "at or near the time" of the physical injuries. (See § 1370, subd. (a)(3).) Only statements to those made close in time to the infliction of the injury, within hours or days rather than weeks or months are admissible. (See People v. Quitiquit (2007) 155 Cal.App.4th 1, 9-10 (Quitiquit).) In Quitiquit, we concluded a statement about a physical injury that had occurred two months earlier did not satisfy the requirement for a temporal connection. (Id. at p. 10.) Here, the journal does not specify when many of the actions described in it occurred. While corroborating testimony places some of the injuries within the same year, without clearer substantiation that L.L. wrote about her injuries near the time they were inflicted, this does not meet the requirements set forth in section 1370.
Additionally, statements made more than five years before the charges filed are inadmissible under this provision. (§ 1370, subd. (a)(3).)
The Attorney General contends the journal was admissible under a state of mind hearsay exception. We apply the abuse of discretion standard to review admissibility of hearsay evidence under the state of mind exception. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103 (Escobar).)
Section 1250 permits admission of a declarant's statement if it is offered to prove her state of mind or emotion. (§ 1250, subd. (a)(1).) Under the state of mind exception, evidence of a statement of a declarant's state of mind may be offered unless it lacks trustworthiness. (Waidla, supra, 22 Cal.4th at p. 725.) However, section 1250 does not permit admission of evidence of a statement of a memory to prove the fact remembered. (§ 1250, subd. (b).)
Section 1250 authorizes admission of hearsay statements to demonstrate a declarant's mental state only when the declarant's mental state is factually relevant. (People v. Noguera (1992) 4 Cal.4th 599, 621.) In Escobar, for example, the court concluded the victim's state of mind was relevant because the defendant posited a theory that he killed his wife in the heat of passion, and the victim's prior statements challenged that version of events, casting doubt on defendant's claim that his wife would have made the bold, insulting comments he claimed provoked him. (Escobar, supra, 82 Cal.App.4th at pp. 1103-1104.)
Even if relevant, potential prejudice from hearsay evidence of state of mind requires the trial court to "engage in a careful weighting of its probative value against the danger of undue prejudicial effect on the jury." (People v. Thompson (1988) 45 Cal.3d 86, 103.) We would have expected to see on the record a discussion of the emotional overlay of a journal entry addressed to God, as if it were a written prayer, because such a statement would likely engender sympathy for the writer. It does not appear from the record before us that the court weighed the admission of the journal entry under section 352, but we recognize the court may have done so in chambers prior to the start of trial.
Some of the statements in L.L.'s journal expressed her state of mind, like her statement that she wonders if she will ever feel loved or respected, or her prayer for her children's success. However, these statements are not relevant because they do not contradict Lopez's claim of provocation. (See People v. Riccardi (2012) 54 Cal.4th 758, 822-823, abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Other portions of the journal entry explained L.L's fear of Lopez, which might suggest L.L. was unlikely to provoke Lopez by kicking him. But the two-year lapse between L.L's writing and her death raise concerns about whether these statements represent her present state of mind at the time of her death. (People v. Karis (1988) 46 Cal.3d 612, 637.) Moreover, L.L's descriptions of Lopez's actions were memories that had been unlocked when he came home from drinking. The admission of memories is expressly prohibited by subdivision (b) of section 1250. (§ 1250, subd. (b) [forbidding use of state of mind exception to admit "evidence of a statement of memory or belief or to prove the fact remembered or believed"].)
Other statements were introduced for their substantive truth, including that Lopez cheated on L.L., gave her a black eye, and whipped her with a phone cord. The Attorney General argues this journal entry was admissible under section 1109, but that section does not authorize admission of hearsay evidence.
5. Prejudice
Even if the journal entry was improperly admitted, the error was harmless. The erroneous admission of hearsay testimony is reversible if it is reasonably probable a more favorable result would have been reached absent the error. (Quitiquit, supra, 155 Cal.App.4th at pp. 12-13; People v. Von Villas (1992) 11 Cal.App.4th 175, 251.)
Several of the incidents described in the journal were corroborated by Lopez on cross-examination. Lopez admitted he once gave his wife a black eye, choked her at night, and whipped her with a telephone cord. Lopez argues on appeal he only corroborated the incidents because he was forced to after the journal entry was read. However, nothing prevented the prosecutor from asking about these incidents even without admission of the journal entry into evidence, and Lopez would have been expected to answer the questions truthfully. (See Pen. Code, § 118.)
Additionally, some of the incidents relayed in the journal were described by other witnesses, including (a) Lopez killing L.L.'s dog by kicking it, (b) his jumping into the swimming pool with L.L. who could not swim, (c) his daughter stepping between Lopez and L.L. to deescalate a situation, and (d) Lopez pushing and threatening to kill L.L. before their son held back Lopez on March 8, 2013. These incidents paint a similar picture of domestic abuse, serving much the same purpose as the journal entry. Given the extent of the evidence of domestic violence, it is not reasonably probable an outcome more favorable to Lopez would have occurred absent introduction of the journal entry. C. Prosecutorial Error
While the Attorney General argues the journal entry was evidence that contradicted provocation, in closing arguments the prosecutor referred to it as evidence of the defendant's propensity for violence.
Appellant contends the prosecutor erred by shifting the burden of proof to the defendant, misstating an element of provocation, and making comments about defendant's entitlement to a defense. The Attorney General contends the prosecutor did nothing improper, but even if she did, the objections were forfeited for failure to specify a federal constitutional law violation and because any such action constituted harmless error.
Although we refer to " 'prosecutorial "misconduct" ' " in our opinion—largely because it is used in the relevant precedent—we recognize the word "misconduct" is " 'somewhat of a misnomer to the extent that it suggests that a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (People v. Centeno (2014) 60 Cal.4th 659, 666-667.)
1. General Principles
"A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202 (Cole).) "Misconduct that infringes upon a defendant's constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury's verdict." (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375 (Pigage), citing Chapman v. California (1967) 386 U.S. 18.) A violation of state law is harmless if there is "no reasonable likelihood that the jury relied on the prosecutor's remarks to the appellant's detriment." (People v. Forrest (2017) 7 Cal.App.5th 1074, 1086 (Forrest).) "[O]nly misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm." (Pigage, at p. 1375.)
"In the absence of any evidence of confusion on the part of the jury, '[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.' " (Forrest, supra, 7 Cal.App.5th at p. 1083, quoting People v. Sanchez (2001) 26 Cal.4th 834, 852.)
2. Burden-shifting
During closing arguments, the prosecutor argued that imperfect self-defense did not apply because Lopez could not prove he believed in the moment he was killing his wife that he himself might die. She also stated, "The defendant cannot—the defense cannot prove that to you, not from the interview with Detective Binks and Coyle, not from the testimony. That never came out. That was never developed. The evidence does not support imperfect self-defense." Defense counsel objected to these statements. He argued that a criminal defendant is not required to prove anything, so the prosecutor's comments improperly shifted the burden of proof. After the court admonished the prosecutor about her use of the word "prove," the prosecutor agreed to address the burden of proof requirements with the jury.
The prosecutor then told the jury, "[t]he burden of proof, again—and I said this earlier in my argument—is on the prosecution to show you that there is no voluntary manslaughter for heat of passion and there is no voluntary manslaughter for imperfect self-defense." She ended her closing argument with, "The job of the prosecution is to prove the case to you beyond a reasonable doubt. The facts support a conviction of first-degree murder. Everything in this case starting with the history of domestic violence supports a conviction of first-degree, willful, premeditated, deliberate murder."
The court provided the jury with written instruction CALCRIM No. 220, which states a defendant is presumed innocent and "requires that the People prove a defendant guilty beyond a reasonable doubt." Jurors also received jury instruction CALCRIM No. 571, which states, "The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder."
The applicable principles in this context are well settled. " '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' " (People v. Hill (1998) 17 Cal.4th 800, 829, citing People v. Marshall (1996) 13 Cal.4th 799, 831 (Marshall).) If a statement can be reasonably interpreted as shifting the burden of proof to a defendant, it constitutes misconduct. (See Hill, at pp. 832-833 [statements that could be reasonably interpreted as suggesting the prosecution does not have the burden of proving every element of a crime constituted misconduct].)
The prosecutor's statement in closing that the defendant could not "prove" elements of imperfect self-defense inappropriately suggested that the burden of proof was on Lopez. Any such impression was short-lived, however. Defense counsel objected, and the court heard argument outside the jury's presence. The court concurred with defense counsel. After a short discussion, even the prosecutor agreed.
It might have been preferable had the court, on resuming formal proceedings, said something to the jury indicating that it had sustained defense counsel's objection. Nonetheless, the prosecutor immediately corrected her misstatement by explicitly stating that the prosecution bore the burden of proving there was no voluntary manslaughter, thereby curing any possible harm. (See Pigage, supra, 112 Cal.App.4th at p. 1375.) Additionally, the jury instructions correctly stated the burden of proof, and defense counsel reiterated the proper burden during his argument. There is, thus, no question that the jury applied the proper standard. (See Forrest, supra, 7 Cal.App.5th at p. 1083.) There was no fundamental unfairness, and even in the absence of the misstatement it is not likely Lopez would have received a more favorable outcome.
3. Misstatement of Law
Lopez contends the prosecutor's misstatement of heat of passion law unlawfully prejudiced his defense. During closing arguments, the prosecutor stated, "Heat of passion. Was the defendant provoked? As a result, did the defendant act rashly under intense emotion? The provocation would have caused a person of average disposition to do the same." After defense counsel objected, the court read CALCRIM No. 570 back to the jury, explaining, "I'm not trying to suggest the law has been misstated or not. I will re-read it to you. I encourage you to read it when you're back into the jury room when deliberating."
Later during the prosecution's closing argument, after discussing the issue in chambers, the prosecutor told the jury to consider whether "[k]nowing all of those things, a person of average disposition would have reacted the exact same way." Defense counsel again objected: "You're basically saying that it has to be sufficient provocation that would cause an average person in the exact same circumstances to kill her. That's not the law. The law is it would be sufficient provocation to cause an average person to act rashly and under the influence of intense emotion that obscured his reasoning or judgment, not that an average person would kill."
After additional discussion outside the presence of the jury, the parties agreed on the following pinpoint instruction: "The law regarding heat of passion doesn't say that provocation would have caused a person of average disposition to kill. Instead the law is provocation that causes a person to act rashly[,] impulsively, or without thinking. The proper focus is placed on the defendant's state of mind, not on his particular act. To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react without reflection." That afternoon, the court read the pinpoint instruction, but replaced the word "reflection" with "provocation" in the last sentence. A copy of the pinpoint instruction with the correct language was provided to the jurors during deliberation.
It is improper for the prosecutor to misstate the law. (Marshall, supra, 13 Cal.4th at p. 831.) A murder conviction requires proof of express or implied malice. (Beltran, supra, 56 Cal.4th at p. 941.) The absence of malice precludes a conviction for murder. (Ibid.) Manslaughter is a lesser included offense of murder, and it can be proved when a defendant acts in the heat of passion, preventing the formation of malice. (Ibid.; Pen. Code, §192.) Heat of passion arises if, " ' 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 such passion rather than from judgment.' " (People v. Barton (1995) 12 Cal.4th 186, 201; see Beltran, at p. 957.)
CALCRIM No. 570 describes the elements of 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." The jury instruction also explains: "In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570.)
The average person does not need to be provoked to kill; he or she must be provoked to act rashly and without deliberation. (Beltran, supra, 56 Cal.4th at pp. 938, 942, 957.) "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." (People v. Najera (2006) 138 Cal.App.4th 212, 223.)
To preserve a claim for prosecutorial error, defense counsel must make a " 'timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety.' " (People v. Clark (2011) 52 Cal.4th 856, 960 (Clark), quoting Cole, supra, 33 Cal.4th at p. 1201.) Additionally, defense counsel should request a pinpoint instruction to correct a misstatement of heat of passion law to refocus a jury "on the relevant mental state, properly set out in CALCRIM No. 570, and away from whether an ordinary person of average disposition would kill in light of the provocation." (Beltran, supra, 56 Cal. 4th at p. 956.)
In explaining the level of provocation necessary for heat of passion, the prosecutor told the jury that it has to be enough to "cause[] a person of average disposition to do the same" and to "react[] the exact same way." (Italics added.) Defense counsel made a timely and specific objection. It is not completely clear whether the prosecutor meant to suggest that for heat of passion to apply, a reasonable person would have responded to the provocation by killing the victim. But the trial court's sidebar discussion with counsel, particularly following the second reference, certainly suggests a concern that there was a reasonable likelihood the prosecutor's comments could be understood in that fashion. (See People v. Cortez (2016) 63 Cal.4th 101, 130.)
To the extent they were so understood, however, any mistake in phrasing was promptly rectified by the trial court with a recitation of the jury instructions for heat of passion, and jurors are presumed to have followed the court's instructions. (See Beltran, supra, 56 Cal.4th at p. 956; see also Pigage, supra, 112 Cal.App.4th at p. 1375; Forrest, supra, 7 Cal.App.5th at p. 1083.) More importantly, the court provided a specific, pinpoint instruction expressly noting that adequate heat of passion will cause "a person to act rashly, impulsively, or without thinking. The proper focus is placed on the defendant's state of mind, not on his particular act. To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react without provocation." This pinpoint instruction cured any error because it refocused the jury on the appropriate mental state. (Beltran, at p. 956.) Though the court misspoke in reading the pinpoint instruction, this also does not constitute reversible error because the written instructions control. (People v. Mills (2010) 48 Cal.4th 158, 201 (Mills).) The trial court's clarifying instruction means that it is not reasonably probable any ambiguity engendered by the prosecutor misled the jury. (See Beltran, at p. 956.)
Moreover, it is not reasonably probable a more favorable result for the defendant would have been reached absent the error, particularly given the compelling evidence of the defendant's guilt. (Forrest, supra, 7 Cal.App.5th at p. 1086.) In Forrest, for example, the court found the misstatements of law were harmless because the jury found the defendant guilty of first degree murder, expressly finding premeditation and deliberation, with evidence strongly supporting that conclusion. (Ibid.) A "jury's finding of premeditation and deliberation is 'manifestly inconsistent with having acted under the heat of passion' " (People v. Franklin (2018) 21 Cal.App.5th 881, 894), and such a finding by the jury here nullifies any finding of prejudice. (See People v. Wharton (1991) 53 Cal.3d 522, 572.) The prosecutor's limited, ambiguous reference to the requirement that an average person "do the same" as the defendant, followed by a curative instruction did not prejudice the defendant.
4. Comments Regarding Defense
Lopez takes issue with the prosecutor's argument, which he characterizes as stating that "even the obviously guilty have the right to present a defense." He asserts that the prosecutor was "suggest[ing]to the jury that defense counsel was inventing the provocation defense simply because he could, when the fact is there was ample evidence to support it." Lopez contends this constitutes prosecutorial misconduct.
During closing arguments, the prosecutor said, "When we talked about during jury selection, I said to you everybody has a right to a trial. A guy comes in as we're picking the jury, steals all of our purses and wallets, that guy can have a trial. That person has a right to testify and say, You know what, I had the consent of all the people in that courtroom to take their wallets and take their purses, right? Just because somebody said something doesn't mean it's true." Defense counsel objected to the argument as misconduct for shifting the burden to the defendant by trivializing the heat of passion defense and suggesting there was no good faith basis for it, thereby impugning him personally, as well as the entire system. The prosecutor responded that everyone has a trial, and that the jury should evaluate the evidence.
In chambers, the court noted, "[E]verybody has a right to a trial, that's fine. I think that comparing that to a situation where somebody is obviously guilty, for example, stealing everybody's purse, and we're all there to watch it is probably not a good idea, . . . ." Defense counsel asked the court to provide a curative instruction, but the court instead allowed the prosecutor to correct the issue and told defense counsel he could let the court know if he was satisfied with what the prosecution had done after the rebuttal. The issue was not raised again after the rebuttal.
"A prosecutor is not permitted to make false or unsubstantiated accusations that counsel is fabricating a defense or deceiving the jury." (Clark, supra, 52 Cal.4th at p. 961, citing People v. Bemore (2000) 22 Cal.4th 809, 846.) Moreover, "to the extent that the remarks might be understood to suggest that counsel was obligated or permitted to present a defense dishonestly, the argument [is] improper." (People v. Bell (1989) 49 Cal.3d 502, 538 (Bell).)
The prosecutor's comments here were arguably more subtle than other comments courts have found did not rise to the level of prejudicial misconduct. For example, in People v. Friend (2009) 47 Cal.4th 1, the prosecutor called defense counsel " 'a true believer' who would 'support her belief based only on her belief,' and likened her arguments to 'spit[ting] in your face to insult you.' " (Id. at p. 30.) The prosecutor also repeatedly stated the defense counsel had obscured the truth and confused the jury. (Ibid.) The court concluded this was not misconduct, and even if it had been, it was harmless because it was not reasonably probable it affected the jury's evaluation of evidence. (Id., at p. 31)
In Bell, supra, 49 Cal.3d 502, the prosecutor told the jury it was common for a defense counsel to try to confuse them because "it's his job to get his man off. He wants to confuse you." (Id. at p. 538.) The court commented, "to the extent that the remarks might be understood to suggest that counsel was obligated or permitted to present a defense dishonestly, the argument was improper." (Ibid.) However, the court also noted such a misleading aspect of an argument could be cured by admonition. (Ibid.; Id. at pp. 539-540.)
The prosecutor's comments here were not directed at the defense attorney and, in the context of the prosecution's complete closing, were fleeting. Additionally, the prosecutor emphasized the jury should decide the case on the law and the facts. The comments did not mislead the jury. And while the court did not give a curative instruction, it did admonish the prosecutor and allow her to correct any misapprehension. The court also gave defense counsel an opportunity to object after rebuttal if he was not satisfied with how it was handled. Counsel did not renew his objection, waiving the claim on appeal. (People v. Campos (2007) 156 Cal.App.4th 1228, 1236, fn. 6 (Campos).)
A waiver is the express relinquishment of a known right, while a forfeiture is the failure to invoke a right. (Campos, supra, 156 Cal.App.4th at p. 1236, fn. 6.) Here, defense counsel had invoked the right but later failed to revive his claim, thus waiving the issue on appeal.
Finally, appellant implies that the alleged errors, taken collectively, are sufficient to demonstrate a "reasonable possibility of a different result," justifying a reversal. We disagree. Even had Lopez testified to feeling suicidal after killing his wife and had the journal entry not been admitted, there was overwhelming evidence indicating that he acted with premeditation and deliberation. There is no reasonable probability of a different result. D. Inadvertent Misuse of the Word "Innocent" in One Procedural Jury Instruction
CALCRIM No. 3550 says," Do not reveal to me or anyone else how the vote stands on the (question of guilt/[or] issues in this case) unless I ask you to do so." However, the court instead read the instruction as follows: "Do not reveal to me or anyone else how the vote stands on the question of guilt or innocence in this case unless I ask you to do so." (Emphasis added.) Lopez argues this mistake constitutes reversible error because the jury's task was to determine whether Lopez was guilty or not guilty, and "[a] not guilty verdict is not the equivalent of finding the defendant innocent." (People v. Lloyd (2015) 236 Cal.App.4th 49, 62.) The Attorney General contends Lopez forfeited this argument by failing to object at trial. However, "an erroneous oral recitation of jury instruction can be raised on appeal without an objection should it implicate a 'substantial right[ ]' of a criminal defendant (§ 1259) . . . ." (Mills, supra, 48 Cal.4th at p. 201, fn. 15.)
At the outset, we note this was a preliminary, procedural instruction made at the start of the final jury instructions as part of the explanation for how jurors should behave during deliberations, not an instruction defining burdens of proof or describing substantive elements of law. (People v. Cleveland (2004) 32 Cal.4th 704, 751, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390 ["Instructions that contain the word 'innocence' or 'innocent' do not suggest that a defendant has the burden of establishing innocence"].) Treating this instruction like one that defines the burden of proof misconceives its focus.
Additionally, "[t]he risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke." (Mills, supra, 48 Cal.4th at p. 200.) "[O]n appeal we give precedence to the written instructions." (Id. at p. 201.) "To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control." (People v. Wilson (2008) 44 Cal.4th 758, 803.) For example, in Mills, the trial court replaced the word "rashly" with "reasonably" in the heat of passion instruction, but the Supreme Court concluded it did not constitute a reversible error because the written instructions were correct, even though the words themselves connote contradictory meanings. (Mills, at pp. 200-201.)
Similarly here, the written instructions—which were correct—are controlling, and the jury is presumed to have read and followed them. (Forrest, supra, 7 Cal.App.5th at p. 1083.) Moreover, Lopez was not claiming innocence in this case, having acknowledged he killed his wife. Lopez contends this made the mistake in the jury instruction conflicts with other instructions, justifying reversal because it is not possible to know which of the instructions the jury followed.
However, the People v. Dail (1943) 22 Cal.2d 642 case he cites for this proposition is distinguishable. In Dail the court erroneously instructed the jury that the credibility of an accomplice witness must be judged by the same standard used to judge other witnesses, then later gave an instruction that testimony of an accomplice must be viewed with distrust. (Id. at p. 653.) The instruction there was central to the matter. In contrast here, the court inadvertently replaced one word with another, and the mistake did not create an absolute conflict in standards for judging the evidence; a defendant can be both not guilty and also innocent. Here there was no question the defendant was guilty of homicide; the question was whether he should be convicted of murder or manslaughter. Thus, there is no reasonable likelihood the single, isolated misuse of the word "innocent" impacted the jury's deliberations, particularly as used in a general instruction regarding juror etiquette and not one defining procedural or substantive requirements for determining the defendant's guilt.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. NARES, J.