Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-060795-2.
Bruiniers, J.
A jury convicted appellant Scott Thomas McAlpin of the first degree murder (Pen. Code, § 187) of his former girlfriend, Anastasia Melnitchenko (Annie), rejecting his claim he acted in the heat of passion in response to provocation. The trial court sentenced him under the “Three Strikes” law after finding true allegations of a prior serious felony conviction, but struck a five-year sentence enhancement for the prior conviction. McAlpin appeals, contending the trial court erred in: (1) denying his Batson/ Wheeler motions challenging the prosecutor’s use of peremptory challenges in a discriminatory manner based on gender; (2) admitting hearsay statements from Annie, expressing her belief he was going to kill her; and (3) incorrectly instructing the jury on the standard for objectively adequate provocation to mitigate a killing to voluntary manslaughter. The People appeal from the trial court’s order striking the sentence enhancement.
All further statutory references are to the Penal Code unless otherwise specified.
The victim was identified by her first name throughout the trial court record. We also do so for consistency and intend no disrespect.
Batson v. Kentucky (1986) 476 U.S. 79, 97 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276–277 (Wheeler), disapproved in part by Johnson v. California (2005) 545 U.S. 162 (Johnson).
We conclude the CALCRIM form provocation instruction given for voluntary manslaughter was ambiguous, but that any error was harmless. We also conclude that the trial court had no authority to strike the sentence enhancement, and we modify the judgment accordingly. The judgment as modified is affirmed.
I. Factual and Procedural Background
In June 2006, McAlpin was charged by information with the first degree murder of Annie. The information also alleged a first degree burglary conviction in October 2003, as both a strike under the Three Strikes sentencing provisions (§§ 667, subds. (b)–(i), 1170.12) and a five-year sentence enhancement (§ 667, subd. (a)). At trial, the People contended McAlpin stalked and killed Annie when she ended their relationship. McAlpin argued Annie was a willing participant in their relationship, and that her verbal provocation during an argument caused him to “snap” and kill her. The jury was instructed on first degree murder and the lesser included offenses of second degree murder and voluntary manslaughter. In December 2008, after two days of deliberations, the jury convicted McAlpin of first degree murder.
The trial court found true the alleged prior conviction doubling the minimum indeterminate term and sentenced McAlpin to a term of 50 years to life. (§§ 190, 1170.12, subd. (c)(1).) Over the People’s objection, however, the trial court struck the five-year sentence enhancement for the prior conviction (§ 667, subd. (a)). (§ 1385, subd. (a).)
McAlpin filed a timely notice of appeal from the judgment of conviction. The People filed a timely notice of appeal from the trial court’s order striking the prior conviction as a sentence enhancement. (§ 1238, subd. (a)(10).)
The following evidence was presented at trial.
The Relationship
Annie began dating McAlpin in early 2001, and was romantically involved with him off and on until her death on October 22, 2005. During this time, she reported several incidents of domestic violence. On December 23, 2001, McAlpin became upset when Annie ended a telephone call to assist a male customer at work. He told her she “was getting bold with him and that he was going to come down and smack the fucking taste out of [her] mouth.” True to his word, he came to the store and slapped Annie twice in the face, knocking her off her chair. As she ran for the phone to call the police, McAlpin pushed her, and she fell to the floor. The two ran outside, struggling for the phone. McAlpin grabbed her and “threw” her back inside the store, causing her to hit her head and lose consciousness. McAlpin was served with an emergency protective order prohibiting all contact with Annie, and on January 22, 2002, she obtained a civil restraining order against him.
Annie testified against McAlpin at a July 2003 preliminary hearing on domestic violence charges. Her testimony was read into the record during trial in this case.
McAlpin threatened to kill himself “ ‘if you are not back with me by Valentine’s Day....’ ” Several weeks later, he appeared on Annie’s balcony at 1:00 or 2:00 a.m. with a knife. He yelled, “ ‘Do you want me to prove to you how much I love you?’ ” and slashed his wrists.
In early March 2002, Annie heard a knock on her bedroom window around 1:30 a.m. and saw McAlpin outside holding up a note indicating he was “going to go and kill [himself] right now” if Annie did not call him. Annie said she was going to call his parents and the police. He threw the note at the window, yelled “ ‘I love you... [f]uck you, bitch...’ ” and ran away. When police officers responded, Annie’s telephone rang, and an officer answered it. The caller yelled obscenities and said “ ‘You should have never called the police, now I’m really going to kill myself.’ ” When the officers left, they saw McAlpin’s car nearby and detained him. A few days later, he was served with a criminal protective order.
A week later, McAlpin forced his way inside Annie’s mother’s apartment when Annie answered a knock at the door. He prevented Annie from getting to a phone to call police and said “he wasn’t going to leave until he had said everything that he had to say.” Annie started screaming. McAlpin pushed her down on the couch, jumped on top of her, and put both his hands over her mouth to stop her screaming. He pinched her nose shut with one hand, and held his hands over her mouth and nose for 20 to 30 seconds. She could not breathe. The whole time, he was rambling incoherently, “ ‘I have no problem doing this... I’m desperate, and... it’s going to be either you or me tonight.’ ” He said if she “wasn’t going to be with him, that he would make sure that [she] wouldn’t be with anybody else either[:]... ‘You don’t understand. I’m desperate. I don’t care anymore. I already messed everything up and I don’t care about anything anymore.’ ” He threatened to kill himself and leave a note “to make sure everybody knows it’s [Annie’s] fault....” Police knocked on the door, and he fled over the balcony. He was served with another criminal protective order. A few weeks later, McAlpin called Annie at 3:00 a.m. on the apartment intercom, and said: “ ‘I’m not going to let you fuck up my life. I’ll kill you, bitch.’ ”
In early July 2002, Annie woke at 3:00 a.m. to find McAlpin “halfway through [the] window” of her bedroom. He looked over at her and said “ ‘boo, ’ ” laughing strangely. He told her, “ ‘I’ll give you one week to come back to me and if you don’t, I’ll kill you bitch.’ ” In late July 2002, McAlpin was arrested in connection with these incidents and served with another criminal protective order.
In October 2003, he entered a guilty plea to multiple felony charges, including: (1) assault with force likely to cause great bodily injury; (2) stalking with a protective order in place; (3) false imprisonment; and (4) first degree burglary. He also pled guilty to misdemeanor charges for second degree burglary, violation of multiple court orders, harassing phone calls, destruction of telephone equipment, and criminal threats. He was placed on five years of probation on the condition he serve one year in the county jail, have no contact with Annie, and attend domestic violence counseling. Annie said she was very upset by the plea agreement and afraid for her safety. McAlpin was released from jail at the end of 2003.
On August 2, 2004, Annie was treated in the emergency room for injuries from an assault. She reported that when she left work at 2:30 a.m., her “ex-boyfriend” was waiting for her, stole her purse and cell phone, and attacked her when she ran after him, throwing her to the ground and beating her.
McAlpin was taken into custody, and in December 2004, he pled guilty to felony assault with force likely to cause great bodily injury and was granted probation on the same conditions. Annie said she could not count on the system to protect her and could protect herself better by maintaining contact with McAlpin so she would know his moods and be able to control the situation. She said McAlpin would eventually kill her. McAlpin was again released from jail in the spring of 2005.
Annie’s friend, Heidi Barnes testified that McAlpin was intensely jealous and did not believe Annie was faithful despite repeated assurances. Annie told her that on two occasions McAlpin had said “ ‘ “I love you” ’ ” while he was strangling her. Once, when she threatened to leave him, he threw her to the floor and choked her, saying, “ ‘ “Don’t leave me... but I love you, don’t leave me.... ” ’ ” More frequently near the end, Annie expressed fear he would kill her: “ ‘[H]e said if she ever leaves him, he’ll kill her.’ ”
The People called psychotherapist Marjorie Cusick as an expert in domestic violence to explain the “cycle of violence” and “behavior consistent or inconsistent with... a victim of domestic violence.” McAlpin presented evidence that Annie visited him in jail, spoke with him by phone during his incarceration and was verbally abusive when she was not allowed to do so. After he was released in 2005, Annie visited his house several times a week and asked to stay with his family. A defense witness said there was a “kind of a back and forth thing between the two of them.” Barnes said Annie had a pattern of breaking up with McAlpin and later reconciling with him because “[h]e always promised to change and not hit her anymore....”
The defense contended the relationship was mutually combative and that Annie “had a temper, ... was moody, and... could be provocative and belittling.” There was evidence Annie yelled profanity at McAlpin, hit him aggressively, and constantly belittled him—calling him an “ ‘idiot, ’ ” “ ‘stupid, ’ ” “ ‘fucking loser, ’ ” and telling him, “ ‘You are not shit.... You are less than a man.’ ” She also said, “ ‘I could send you back to jail in one phone call, so you better do what I say.’ ” He was “walking on eggshells” and “doing every little thing to... make [her] happy.” Barnes agreed that when Annie was angry at McAlpin, she screamed, cursed, and used sexually explicit language.
Annie’s Death and McAlpin’s Arrest
A defense witness testified that Annie seemed upbeat and happy in late September or early October 2005. She and McAlpin were talking about moving in together, and she said “ ‘everything would work out fine... as long as [he] doesn’t make me upset or get me mad and I got to call the cops.’ ”
Barnes testified, however, that a month before her death, Annie was crying and shaking and said her heart had been pounding fast and she could not sleep. Annie said she was extremely anxious because she wanted to end her relationship with McAlpin but was afraid he would kill her if she left him. She also said, “ ‘I know he’s going to kill me. There’s nothing that anybody [can] do.’ ”
The parties reconstructed the events of the week of October 17, 2005, using cell phone records. The People contended McAlpin could not accept the relationship was over and was stalking Annie. McAlpin contended Annie was calling him too. He was arrested on Tuesday, October 18, 2005, for a probation violation and released the next morning. He called Annie at 1:40 p.m. that day.
When Barnes called McAlpin the night of Wednesday, October 19, 2005, he said Annie had broken up with him and “ ‘they were over.’ ” He and Barnes went out for a drink that night. McAlpin told Barnes he and Annie had broken up a month earlier and were talking, but “[i]t’s over this time, ... there is no way she’s going back to him and he was very devastated.” He said Annie told him during a recent phone call “she’s going to be sucking another guy’s dick on his birthday [Friday, October 21].”
Annie slept at her mother’s apartment Thursday night, October 20, 2005. Around 2:30 a.m. that night, McAlpin was seen looking intently into the apartment complex’s parking garage, moving from one window to another, “as if looking for something.” He told a night staff person for the complex that he was waiting for his girlfriend, and the staff person asked him to leave. McAlpin was seen 40 minutes later jumping over the wall into the pool area.
Annie’s mother said Annie left the apartment at 8:45 a.m. Friday morning, October 21, 2005. Security tapes show her with McAlpin at Panda Express at 11:21 a.m. the next day, Saturday, October 22.
McAlpin called his friend Nathan Aguiar at 8:30 or 9:00 a.m. on Sunday, October 23. He was crying and said he had killed Annie, describing the events leading to her death as follows. A couple of days before his birthday, he saw Annie “ ‘sucking someone’s dick in the parking lot’ ” at the apartment complex where she was staying. He sat there in disbelief but “ ‘couldn’t take anymore’ ” and went home. Annie called the next day to get together for his birthday. On his birthday, they spent “ ‘a wonderful day’ ” at the beach, spent the night together, and made love. The next day, he confronted Annie about what he had seen. At first, she denied the incident but when he pressed the issue, she got angry and yelled, “ ‘ “I sucked his dick, I swallowed his cum, and I fucked other guys too, and I hope it kills you.” ’ ” He slapped her once or twice. When she saw her eye swelling, she said: “ ‘ “This is exactly what I wanted. Now you are going to go back to jail, and I’m going to fuck all of your friends.” ’ ” McAlpin told Aguiar: “ ‘I just snapped and started choking her. [¶]... [¶] I choked her to death and she didn’t even fight. [¶]... [¶]... [B]efore he knew it, it was over....’ ” McAlpin said he was going to kill himself because he could not live without Annie. He said he had taken a bottle of pills, and if that did not work, he would drive off a cliff.
Aguiar called the police, and the responding officer called McAlpin on his cell phone. McAlpin said he told Aguiar his relationship with Annie was dead. He said, “ ‘I loved her, ’ ” then said he meant: “ ‘I love her. I love her very much. But we just can’t work things out.’ ”
At 11:40 a.m. that day, a park ranger saw McAlpin’s car in the Marin Headlands, parked against a guard rail by a steep slope. McAlpin was sitting in the driver’s seat with his feet on the pavement, vomiting on the road. He said he had been drinking all night. The ranger learned of McAlpin’s probation search condition and had the car searched. Annie’s body was found in the trunk, along with a half bottle of Smirnoff Ice and a handwritten note to “Dearest Annie”: “I want to start by saying I’m deeply sorry for my actions I have displayed throughout our relationship. I hate myself every day for putting my hands on you.” A blood-stained knife was found in the center console. McAlpin tried to flee but was apprehended and placed under arrest. He had deep lacerations to his wrists.
The Autopsy
Dr. Ikechi Ogan concluded the cause of death was asphyxiation due to manual strangulation and that the time between Annie’s last meal and her death was quite close. Ogan said “[i]t was obvious that the body had undergone some degree of trauma.” There were premortem abrasions and contusions on the neck and face and blunt impact trauma to the eye, as well as bruises and scrapes of the same age on the torso, chest, abdomen, and extremities, consistent with an altercation. Defensive wounds were on the hands and arm. He found “scanty” petechial hemorrhages but said the number and distribution of petechia has no bearing on the duration of the strangulation. Ogan said it takes three to five minutes of sustained pressure to kill—longer if there is a struggle. After the victim loses consciousness, pressure must be maintained another minute or two.
Forensic pathologist Paul Herrmann testified for the defense that there is no minimum time to kill by strangulation. Some die within 45 seconds to a minute; others die instantaneously. Death takes longer if the victim struggles. Herrmann said there is no way to know how long it took Annie to die. He noted that compression of the vagus nerve can cause death instantly, but he said it was not possible to tell if that was what caused Annie’s death. He said that McAlpin did not use a great deal of pressure.
McAlpin’s Neuropsychological Expert
Dr. Michael Shore opined a prior beating had caused McAlpin mild to moderately severe brain damage, evidenced by impulsivity and deficits in attention, memory, and problem solving. Shore also opined that McAlpin’s “choice-making” and “emotional control” machinery are broken, producing intense, prolonged, inappropriate reactions in emotional or unexpected situations.
Attorney Argument
The prosecutor contended McAlpin “was determined to have [Annie] in his life no matter what. [¶]... [I]f he couldn’t have her, no one else would.” Focusing on McAlpin’s prior threats, she argued: “[M]urder as a solution to his issues with Annie has been percolating in his head for a long time.... [¶]... [¶]... This isn’t an impulsive one-time... situation. [It] is a... planned conclusion to his jealous fears and paranoia.” She said deliberation can occur “with one continuous squeezing until you’ve squeezed the life out of someone” and that “it takes time to kill in this manner.” Defense counsel maintained McAlpin reacted rashly and impulsively to Annie’s provocation and was not guilty of murder. On rebuttal, the prosecutor contended there was no adequate provocation and McAlpin had overreacted when Annie “had done nothing wrong.” Instead, she argued, McAlpin knew he was going to jail, and “the thought of [Annie] being out there with a life without him was more than he could handle.”
II. Discussion
A. Jury Selection
McAlpin contends he “was deprived of due process, a fair trial, and a representative jury by the trial court’s failure to remedy the prosecutor’s discriminatory use of peremptory challenges against female prospective jurors.”
1. Background
Before jury selection, prospective jurors completed lengthy questionnaires. After voir dire by the court and counsel, the prosecutor used her first two peremptory challenges to excuse Jill P. and Millie A. She used her next three challenges to excuse Cheryl C., Mary B., and Tammara P.
Noting the prosecutor had used her first five challenges against women, defense counsel made a Batson/Wheeler motion, contending she was discriminating based on gender. The defense argued neither the questionnaire nor the voir dire responses of these women provided a legitimate basis for a prosecution strike and the prosecutor must have challenged them because of their gender. Without expressly finding the defense had made a prima facie showing of discrimination, the trial court asked the prosecutor, “Do you want to respond to that right now?”
The prosecutor noted, “It’s a little hard... where 50 percent of the population is the protected class to sometimes not have... what may appear to be a pattern.” She said her practice was to give prospective jurors a tentative rating based on the questionnaire and that she had done so in this case. She said gender is noted on each questionnaire but not taken into account by her rating system. She explained: “[P]art of what I’m doing is looking at... what the ultimate jury is that I wanted and... these jurors that are coming up.... [¶]... [¶]... [T]here are two main areas I looked at for everyone. That was their answer to 73 and the answer to the psychiatric questions, which I think are key in this case.” Question 73 asked prospective jurors to indicate their level of agreement (agree strongly, agree somewhat, no opinion, disagree somewhat, or disagree strongly) with the following statements:
· “If a person is arrested, charged with a crime and brought to trial, he is probably guilty of something.”
· “A defendant on trial should be required to prove his innocence.”
· “If a defendant does not testify at trial he is probably guilty.”
· “Regardless of what the law says, a defendant in a criminal trial should be required to prove his or her innocence.”
· “Criminals have too many rights.”
· “The criminal justice system makes it too hard... to convict people....”
· “In general, persons convicted of serious crimes receive lenient sentences....”
The prosecutor said she “would put ‘bad’ any time they have no opinion or disagree or disagree strongly.... From... the Prosecution’s perspective, even though this didn’t make them unfair jurors... [to be] challenge[d] for cause, [they are] not the best jurors. I obviously would like to have [their] initial reactions on the other side.”
Questions 81 through 84 asked for prospective jurors’ views on mental illness in the context of a criminal trial:
“81. Do you believe that too often mental illness is used as an excuse for bad behavior or the commission of crimes?
82. Do you believe that people with certain types of mental illnesses don’t have control over their behavior?
83. If a mental health professional testifies for the defense in this case, would you discount or disbelieve this testimony either because the witness was a mental health expert or because the witness testified for the defense?
84. Do you have any reservations about psychological testimony offered in court on behalf of a defendant?”
The prosecutor indicated that prospective jurors who marked “Yes” on question 82 “came under a bad rating... because anybody that [sic] thinks... somebody can’t control themselves because of... mental illness is... not going to be my ideal juror.” She said: “[M]y decision here is based on the rating I made based on the objective factors they all answered to and the fact that I know what I have coming up.” She made a record as to why these women were given a “lesser rating than some of the other jurors.”
Jill P.
The prosecutor said Jill P. had “bad” answers on questions 73 and 81 through 83, and “on the mental health area [during voir dire]. [¶]... [W]ith other jurors... coming up, ... she was not one of my best jurors.... [A]nybody [with] ‘bad’ answers on 73 combined with ‘bad’ answers on 81 to 83... got a low grade.”
Millie A.
The prosecutor noted that Millie A. had a degree in psychology, and “I’m not going to keep any... juror [with] that outside experience. I don’t think there is any way that somebody could have that kind of experience, go to the jury room, and make her decision based on the evidence just presented here.”
Cheryl C.
The prosecutor said Cheryl C. “had... ‘bad’ answers on No. 73.... [S]he has a good friend who works as a licensed mental health worker. I’m trying to avoid anyone [with]... outside knowledge of the mental health area. [¶]... [H]er father abused her mother, and it was never prosecuted.” Identifying on the questionnaire any preconceived ideas of how a domestic violence victim should act, Cheryl C. checked both yes and no and wrote “Realistic.” The prosecutor said this meant “her initial reaction was she was not sure. [¶] She has... step children [who] are incarcerated.... [¶] And... [she] might feel... empathy for... [McAlpin’s] parents... who... would be in court every single day.”
Mary B.
The prosecutor said Mary B.’s answers were neutral to bad on questions 81 through 84. “She really had very little information to give [on] the questionnaire and in court. I found [it] very difficult to get any information out of her.” The prosecutor felt she had “much better jurors coming up....”
Tammara P.
The prosecutor said Tammara P.’s answers on question 73 were “bad, ” “her ex-husband is bipolar[, ] and she believes that certain types of mental illnesses, people don’t have control over their behavior.... [¶] She had domestic violence herself, but more importantly, it was by a person who was bipolar. The mental aspect of her abuser was something... I am concerned about. [¶] She would call her sister who [happened] to be a police officer, but she never called [the police], and anybody [with] domestic violence in their background, I’m going to be a little more cautious of....” The prosecutor said she would not accept a juror with Tammara P.’s responses if she still had challenges or had “jurors... coming up.”
The trial court gave defense counsel an opportunity to comment but he declined. After taking the matter under submission, the trial court denied the motion: “[The prosecutor] has... given plausible justifications for her peremptories with respect to either of the five people [defense counsel] referred to [in his] motion..., such that I cannot conclude there was a discriminatory reason for those challenges.”
Voir dire resumed and the prosecutor exercised her sixth and seventh peremptory challenges against men and her eighth challenge against Jennifer L. Defense counsel again objected under Batson/Wheeler based on the prosecution’s peremptory challenge against Jennifer L. The trial court held a hearing on the motion the next morning. At the hearing the prosecutor noted that she had passed on “several” panels that included six women, she had exercised “several” challenges against men, and the most recent panel she had passed on was evenly divided and reflected the percentage of women in the general population (51 percent).
By the time of the hearing, the prosecutor had passed on two panels that included five women and two panels that included six women.
Jennifer L.
The prosecutor said Jennifer L.’s answers on question 73 were “bad” and “[o]n 82, ... she makes the comment, ... ‘Some people do have mental conditions which control their behaviors. We all know this. Hopefully, the experts could sort it out.’ [¶] The People don’t anticipate... calling an expert. I’m concerned she would need... our side [to] call an expert... to make a decision on the mental health issue. [¶] She’s anti-death penalty. People who are anti-death penalty tend to be less conservative on the jury. [¶] She’s been a reporter for ten years. Reporters tend to be more liberal people.... [¶] Any one of those things individually I might not have made this choice. But you put them [all together, ] that’s why I made the choice.”
The trial court denied the motion, stating: “I think the law is clear as long as there is a plausible non-discriminatory exercise.... It’s such a large class, it’s not a minority in the classic sense of that word, that the analysis of whether or not one or more challenges are being exercised for discriminatory reasons becomes somewhat more difficult to make an assessment about. [¶] So unless you exercise all of your challenges against men, which would maybe subject you to a challenge in that regard, these are the kind of judgments that are made by attorneys, as long as there is a plausible justification by the attorney for the challenges, which I think there is in this case....”
As jury selection continued, the prosecution passed three more times on a jury panel that included five or six women before she used her ninth and final peremptory challenge against prospective juror Nathalie W.—with no objection from the defense. As sworn, the jury consisted of eight men, four women, and a male alternate.
2. Analysis
“Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender. [Citations.] Such a use of peremptories by the prosecution ‘violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla); Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276–277; J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 130–131.) [peremptory challenges based on gender violates equal protection].) The procedure for evaluating claims of a discriminatory use of peremptory challenges is the same under both the state and federal Constitutions. (Bonilla, supra, 41 Cal.4th at p. 341.) “ ‘First, the defendant must make out a prima facie case by “showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has [done so], the “burden shifts to the State to explain adequately the... exclusion” by offering permissible [gender]-neutral justifications for the strikes. [Citations.] Third, “[i]f a [gender]-neutral explanation is tendered, the trial court must then decide... whether the opponent of the [peremptory challenge] has proved purposeful... discrimination.” [Citation.]’ [Citations.]” (People v. Lancaster (2007) 41 Cal.4th 50, 74; Johnson, supra, 545 U.S. at p. 168.) “[T]he court must undertake a ‘sincere and reasoned attempt to evaluate the prosecutor’s explanation, ’... to determine whether the stated reasons are genuine. [Citations.]” (People v. Tapia (1994) 25 Cal.App.4th 984, 1014 .) The prosecutor is presumed to use peremptory challenges in a constitutional manner. (People v. Zambrano (2007) 41 Cal.4th 1082, 1104, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) “The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the opponent of the strike. [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 612–613 (Lenix).)
We look to the third stage of the Batson analysis—the trial court’s conclusion that defendant had not shown purposeful discrimination. At the third stage of the Batson/Wheeler inquiry, “the issue comes down to whether the trial court finds the prosecutor’s [gender]-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 339 (Miller-El I).) The ultimate question is “whether the advocate allowed [her] calculus to be infected by [gender] bias and then lied to the court in an attempt to get away with it.” (Lenix, supra, 44 Cal.4th at p. 626.)
The trial court made no finding of a prima facie showing of discrimination but requested the prosecutor’s reasons for her peremptory challenges. Our Supreme Court encourages trial courts to ask for explanations of contested peremptory challenges, even in the absence of a prima facie showing. (People v. Howard (2008) 42 Cal.4th 1000, 1019–1020 (Howard); Bonilla, supra, 41 Cal.4th at p. 343, fn. 13.) If the trial court ultimately finds no showing was made, the request for and provision of explanations does not convert a first-stage Batson/Wheeler case into a third-stage case. (Howard, at pp. 1019–1020.) In this case, however, the trial court ruled on the question of purposeful discrimination, so whether a prima facie showing was made is moot. (Lenix, supra, 44 Cal.4th at p. 613, fn. 8.)
Plausibility is reviewed but not reweighed in light of the entire record. (Miller-El v. Dretke (2005) 545 U.S. 231, 265–266 (Miller-El II); Lenix, supra, 44 Cal.4th at p. 621.) We review the trial court’s finding for substantial evidence, giving “ ‘great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.]’ ” (Lenix, at pp. 613–614, fn. omitted; Snyder v. Louisiana (2008) 552 U.S. 472, 477 (Snyder).) In assessing credibility, the trial court is able to draw “upon its contemporaneous observations of the voir dire.” (Lenix, at p. 613.) “ ‘As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” [Citations.]’ [Citation.]” (Miller-El I, supra, 537 U.S. at p. 339 .) Absent “ ‘exceptional circumstances, ’ ” we defer to the credibility findings of the trial court. (Snyder, at p. 477.)
In this case, the trial court accepted the prosecutor’s detailed explanations for each of the contested peremptory challenges. Substantial evidence supports its determination that the prosecutor had no discriminatory intent.
a. Comparative Juror Analysis
For the first time on appeal, McAlpin seeks to challenge the credibility of the prosecutor’s explanations by a limited “comparative juror analysis” that focuses almost exclusively on the questionnaire responses to questions 73 and 81 through 84. Comparative juror analysis involves comparison of challenged prospective jurors and seated jurors. (Miller-El II, supra, 545 U.S. at p. 241 [if “prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step”]; People v. Bell (2007) 40 Cal.4th 582, 600.) “[W]hen the defendant relies on [evidence of comparative juror analysis] and the record is adequate to permit the comparisons[, ]... comparative juror analysis must be performed on appeal even when such an analysis was not conducted below.” (Lenix, supra, 44 Cal.4th at p. 607.) Our Supreme Court has recognized, however, the “inherent limitations” of attempting to conduct such an analysis on a cold appellate record. (Id. atp. 622.) “In the trial court... advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact.... [¶]... [¶] For these reasons, comparative juror evidence is most effectively considered in the trial court where the defendant can make an inclusive record, where the prosecutor can respond to the alleged similarities, and where the trial court can evaluate those arguments based on what it has seen and heard.” (Id. at pp. 622–624.) An appellate court “ ‘is not privy to the unspoken atmosphere of the trial court—the nuance, demeanor, body language, expression and gestures of the various players. [Citation.]’ ” (People v. Johnson (2003) 30 Cal.4th 1302, 1320–1321, overruled on another point in Johnson, supra, 545 U.S. 162.)
McAlpin maintains the majority of the sworn jurors answered questions 73 and 81 through 84 the same as or “in a manner indistinguishable from” the prospective jurors the prosecutor challenged. (See Snyder, supra, 552 U.S. at p. 483 [implausibility of the prosecutor’s race-neutral reason was reinforced by acceptance of white jurors to whom this explanation applied equally].) The record demonstrates that the responses of a number of the seated jurors to question 73 also merited a “bad” rating in the prosecutor’s view. In addition, nine of the seated jurors answered “No” to question 81, indicating they did not believe mental illness was used too often as an excuse, and nine answered “Yes” to question 82, indicating their belief the mentally ill do not have control over their behavior—also “bad” responses for the prosecution.
“Overlapping responses alone are not enough to demonstrate purposeful discrimination.” (People v. Calvin (2008) 159 Cal.App.4th 1377, 1389, fn. 4 (Calvin), citing People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1020.) A side-by-side comparison is necessary to demonstrate the seated jurors were similarly situated. (Calvin, at p. 1389, fn. 4.) McAlpin has not provided such a comparison. Indeed, he considers each question separately without evaluating each juror’s responses as a whole. “Advocates do not evaluate panelists based on a single answer. Likewise, reviewing courts should not do so.” (Lenix, supra, 44 Cal.4th at p. 631, fn. omitted.) Further, “the question is not whether we... find the challenged prospective jurors similarly situated..., but whether the record shows... the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects.” (People v. Huggins (2006) 38 Cal.4th 175, 233.)
For example, McAlpin correctly points out that Tammara P.’s answers on question 73 were the same or better for the prosecution than those of seated Juror No. 4. He fails to recognize, however, that Juror No. 4’s response to question 81 strongly favored the prosecution, as he not only indicated his belief mental illness is used too often as an excuse for criminal behavior but also noted in explanation: “Some people just won’t accept responsibility for their own action/choice—and, tend to ‘blame’ it on other factors.” Moreover, although Juror No. 4 agreed in responding to question 82 that certain mental illnesses could be a factor in bad behavior, he indicated he would require this to be “proven scientifically.” Tammara P., by contrast, provided “bad” answers to both questions, and said during voir dire that her ex-husband’s mental illness contributed to his abusive conduct—suggesting she was more likely to find McAlpin’s alleged head injury a contributing factor.
McAlpin also is mistaken in his contention that the prosecutor identified the responses to questions 73 and 81 through 84 as the “make-or-break criteria for selecting jurors, ” the “most important” criteria, and the “primary reasons driving the strikes.” The prosecutor noted the questionnaire responses in discussing her practice of evaluating prospective jurors, indicating they were “key.” Nonetheless, she also set out her other reasons, which as a whole were sufficient to support each challenge. For the most part, McAlpin does not address these reasons or challenge them on substantial evidence grounds. Because he has not done so, we are not persuaded by his contention the trial court erred prejudicially in “ ‘failing to point out inconsistencies and ask probing questions’ regarding [the] manifest disconnect between the prosecutor’s asserted reasons [as they related to questions 73 and 81 through 84] and the actual record.” (See People v. Silva (2001) 25 Cal.4th 345, 385.)
McAlpin contends the record does not show Cheryl C. personally had “outside knowledge of the mental health area, ” or “that her friend actually worked ‘as a licensed mental health worker’ in a ‘mental health area.’ ” “Restorative justice, ” he argues, has almost “no relationship to... mental health services....” Still, he does not dispute the prosecutor’s other reasons for striking Cheryl C.
b. Statistical Analysis
For the first time in his reply brief, McAlpin relies on a statistical analysis, responding to similar arguments by the People. He notes the prosecutor’s “strike rate” of women (7 of 9 challenges; 77.8 percent) and her “exclusion rate, ” the percentage of exercised challenges used against potential female jurors (77.8 percent) with the percentage of female potential jurors known to be in the venire (18 of 40; 45 percent). Of the 18 women qualified to serve, the prosecutor challenged seven (38.9 percent). By contrast, the prosecutor struck 9.1 percent (2 of 22) of eligible males on the venire. These statistics might permit an inference of discrimination if our focus were on the threshold Batson question of whether a prima facie showing was made, but they are not dispositive of the issue before us—whether substantial evidence supports the trial court’s finding that the prosecutor’s reasons were genuine.
Of the 56 prospective jurors questioned by the parties, 28 were women. Of these, the trial court excused 10 women and six men for cause. Accordingly, only 18 women and 22 men were subject to peremptory challenges.
We also reject McAlpin’s more generalized challenge to any reliance by the prosecutor on “bad” responses to question 73. In a footnote in his opening brief, he “questions whether it is a constitutionally-permissible use of a peremptory challenge by a prosecutor... to strike a juror because they express general support for and belief in the substance of the Bill of Rights to the United States Constitution.” In his reply brief, he treats this issue as an assertion of error, contending the jury selection process was “essentially invalid from the outset, and the trial court should have declared a mistrial as soon as the prosecutor revealed that [she] had [struck] the female jurors because of their expression of beliefs that were consistent with the United States Constitution and... with the jury instructions....” McAlpin provides no authority, however, to show the prosecutor’s reliance on the answers to question 73 was unconstitutional or that it invalidated jury selection. A “prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion that the juror will be unfavorable to his or her cause....” (People v. Pinholster (1992) 1 Cal.4th 865, 914, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 459.) Indeed, a prosecutor may use a peremptory challenge on any basis that does not deny equal protection. (People v. Cruz (2008) 44 Cal.4th 636, 655.)
McAlpin may also have waived his assertion of error regarding question 73. (See People v. Gray (1998) 66 Cal.App.4th 973, 994.) Before trial, counsel met and conferred on a proposed juror questionnaire and marked the agreed and contested questions as exhibits. These exhibits are not included in the record, and we are unable to identify the prosecution questions to which McAlpin objected.
B. The Alleged Evidentiary Error
McAlpin contends the trial court erroneously admitted a hearsay statement in which Annie expressed fear he was going to kill her. We find no error in the admission of this evidence.
1. Factual Background
McAlpin filed a motion in limine, seeking to preclude certain testimony by Barnes, including Annie’s statement a month before her death that “ ‘[h]e’s going to kill me, ’ ” which McAlpin contended constituted inadmissible hearsay. The trial court concluded the testimony was admissible, reasoning: “[T]here is a big issue as to whether or not [Annie]... acted in a way that was consistent... [with] somebody who was fearful or not fearful. Her behavior... might be explained on the basis of her being fearful. [¶] [T]hese statements then, if they are relevant to her state of mind, and how [she] behaved given her state of mind might be admissible for that non-hearsay purpose.... [Her] state of mind... explain[s] how she may or may not have acted in this case. [¶]... [¶]... [Her] mental state... and... behavior is a crucial issue [in] how the jury is going to go about deciding what offense in particular, if any, was committed here. [¶]... [T]hose statements... certainly would be helpful to the jury to know in assessing how [she] acted, what her frame of reference was.”
2. Analysis
We review the trial court’s evidentiary ruling for abuse of discretion. (See People v. Jablonski (2006) 37 Cal.4th 774, 821 [trial court’s relevance determination]; People v. Rowland (1992) 4 Cal.4th 238, 264 [trial court’s ruling regarding admissibility of evidence under the state of mind exception to the hearsay rule].)
The hearsay rule makes inadmissible “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) Under Evidence Code section 1250, subdivision (a), “a statement of the declarant’s then existing state of mind [or] emotion... is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind [or] emotion... at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” Annie’s statement showed her state of mind in the weeks before her death, namely, her fear of McAlpin. “[A victim’s fear of the killer] may... be in issue when, according to the defendant, the victim has behaved in a manner inconsistent with that fear.” (People v. Hernandez (2003) 30 Cal.4th 835, 872–873 [citing People v. Lew (1968) 68 Cal.2d 774, 778–780, in which the court found a victim’s expressions of fear were relevant to disprove defendant’s claim she was sitting on his lap examining his gun when it accidentally discharged].) McAlpin’s primary contention at trial was that Annie provoked him by boldly taunting him about her sexual activities with other men and his return to jail. Annie’s alleged fear is not consistent with such provocative behavior and is directly relevant to whether she engaged in it.
McAlpin contends the trial court admitted this evidence in violation of Evidence Code section 1250, subdivision (b), which provides: “[Section 1250] does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” Relying on People v. Ruiz (1988) 44 Cal.3d 589, 607, he maintains the only purpose for evidence of Annie’s belief he would someday kill her was “as proof that her prognostications were justified, and that ‘[he] in fact killed [her].’ ” (See id. at p. 608[only purpose for evidence of victims’ expressions of fear was “as proof those fears were justified, and that defendant in fact killed them”].) We disagree. Annie’s statement was not offered to prove the fact believed, i.e., that McAlpin killed her; he conceded at trial that he killed her. The jury was asked to decide which offense he committed. This issue turned on whether Annie provoked him in the manner he claimed.
McAlpin also argues, without supporting authority, that a declarant’s statement as to her own intent to act in the future is admissible, but not her belief as to a defendant’s future conduct. This contention has no merit. (See Evid. Code, § 1250, subd. (a) [statements “of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health)...” are admissible when relevant].)
C. The Alleged Instructional Error
McAlpin contends the trial court, in refusing his requested modifications to CALCRIM Nos. 511 and 570, erroneously advised the jury his “reaction to the provocation had to be reasonable or ‘justified’ to permit a manslaughter verdict.” We agree the instructions created ambiguity and should have been modified. We find any error, however, was harmless.
1. The Standard of Review
In evaluating a claim of instructional error, we must decide whether the relevant law was correctly conveyed to the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525 (Kelly).) After determining the relevant law, we look to the meaning of the instructions at issue, considering the specific language under challenge. (Ibid.; see People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574 [de novo review of instruction’s wording].) For ambiguous instructions, the test is “whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1202 (Young); Kelly, at pp. 525–526.)
2. Relevant Proceedings
a. The Jury Instructions at Issue
The issue for the jury was not whether McAlpin killed Annie, but whether the killing was a willful, deliberate and premeditated murder, as the prosecution contended, or an offense arising from and mitigated by adequate provocation, as the defense urged. The jury was instructed that: (1) provocation may reduce murder from first degree to second degree and may reduce murder to voluntary manslaughter (CALCRIM No. 522); (2) a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant acted during a sudden quarrel or in the heat of passion (CALCRIM No. 570); and (3) a killing is excused and not unlawful if it occurred by accident in the heat of passion (CALCRIM No. 511).
CALCRIM No. 570 was revised in December 2008, after the verdict was rendered in this matter. Unless otherwise noted, all references to CALCRIM No. 570 are to the instruction as added in January 2006.
McAlpin challenges those elements of the instructions focusing on the issue of provocation, specifically: (1) what constitutes sufficient provocation to reduce an unlawful killing from murder to voluntary manslaughter based on a sudden quarrel or heat of passion (CALCRIM No. 570), and (2) as a circumstance of an accidental killing in the heat of passion (CALCRIM No. 511). Former CALCRIM No. 570 provided in pertinent part: “It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.” (Italics added.) The same language appears in CALCRIM No. 511. McAlpin asked the trial court to omit the italicized language because it erroneously suggested his conduct in reaction to the alleged provocation must be objectively reasonable. The trial court denied his request, noting provocation is sufficient if it is “such that a reasonable person would react to it in the way that resulted in the person’s death[.]”
In the transcription of the court’s oral instructions, the reading of CALCRIM No. 511 varied slightly from the written text, stating that the jury should consider “whether a person of average disposition would have been provoked and how such a personwould have acted in such a situation knowing the same facts.” Whether the court misspoke or there was a transcription error, the written instruction, provided to the jury, was unmodified.
b. Arguments by Counsel
The prosecutor did not address provocation in her initial argument to the jury. Defense counsel explained the law regarding adequate provocation to reduce a killing from murder to manslaughter: “Provocation has to be sufficient to cause an average person to act rashly without due deliberation. [It] does not have to be sufficient to cause an average person to kill someone. Otherwise manslaughter wouldn’t be a crime. [¶] If the person kills someone when it’s reasonable to kill someone, it’s not a crime.... But the provocation does have to be sufficient to cause an average person to act rashly without due deliberation.” Defense counsel contended Annie’s “vengeful, harsh words were... uttered with sufficient contempt to cause a reasonable person to act rashly.”
On rebuttal, the prosecutor argued: “[I]n order to reduce murder to manslaughter the victim has to have committed some provoking provocative act.... [¶]... [¶]... The... thing about manslaughter is you have to... judge it by an objective person’s standard, an ordinary, normal person. It’s not whether the defendant had the brain injury and it caused him to react [and] [t]herefore, it’s manslaughter. He doesn’t get to set up his own standard. It’s whether a normal, objective person would have reacted in that way. Not killing, but reacted in a rash, emotional heat of passion response. [¶] We don’t care really whether the defendant did or not. We know he reacted in an overreacting way. He murdered her. The question is, [w]ould the victim’s actions have caused a normal ordinary person to overreact?”
In contending there was not adequate provocation to support manslaughter, the prosecutor argued that even if the jury believed Annie had made the provocative statements attributed to her, “she had every right to be with any man she wanted” and “[t]he fact that [McAlpin] saw [her engaging in a sexual act with another man], even if that occurred, ... he would not be justified in killing her.” In discussing Annie’s alleged statements, the prosecutor argued: “[Annie] finally gets fed up and says, ‘Yeah, I did it. I loved it. I’m going to do it again.’ [¶] Well, you know what? She had every right to respond like that. There is nothing about that situation that puts her to blame. That doesn’t give [McAlpin] the right to kill her and then hide her.” The prosecutor said even if Annie told McAlpin he was going back to jail, she was going to be with other men, and “ ‘I hope it kills you, ’ she had every right to have that response” and, even if she made these statements “in a taunting manner, that doesn’t excuse his actions.”
c. Deliberations
The afternoon of the first full day of deliberations, the jury sent the trial court a written request: “We are struggling with the concept of ‘reasonable person.’ Can you offer any insight there?” (Request No. 6.) After discussing the request with counsel, the trial court responded: “The exact term ‘reasonable person’ does not appear in the instructions. Could you clarify which instruction or instructions your question concerns[?]” Shortly thereafter, the jury responded on the same request form: “Does the ‘ordinary person of average disposition’ standard/test cited in the manslaughter definition also apply to determining Murder 1 or Murder 2? ‘Standard of conduct’ – Similarly, this is cited in manslaughter – Does it also apply to M1, M2?” The trial court noted the jury had “now clarified [it was] referring to the ordinary person of average disposition standard or test cited in the manslaughter definition” and “this apparently explains why they might have been at a jam in their deliberations.”
Defense counsel urged the trial court to tell the jury that there is no objective “reasonable person” standard for provocation in considering the degree of murder, citing People v. Fitzpatrick (1992) 2 Cal.App.4th 1285. (See id. at pp. 1295–1296 [rejecting the People’s contention “the jury must apply an objective standard of provocation to reduce first degree murder to second degree murder, just as to reduce murder to manslaughter”].) The trial court responded to the jury’s request: “The terms ‘ordinary person of average disposition’ and ‘standard of conduct’ relate only to your consideration of whether there was a provocation so as to reduce the offense from murder to manslaughter. Please see Instruction 522 relating to your consideration of provocation as it relates to reducing murder in the first degree to murder in the second degree.”
CALCRIM No. 522, as given to the jury, provides: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to voluntary manslaughter. The weight and significance of the provocation, if any are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked by the victim, consider the provocation in deciding whether the crime was first or second degree murder. When the provocation occurred and the nature of the provocation may be relevant to your consideration of whether the killing occurred with or without deliberation and premeditation. Also, consider the provocation in deciding whether the defendant committed murder or voluntary manslaughter.”
3. The Law on Provocation
“Manslaughter, an unlawful killing without malice, is a lesser included offense of murder. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1086 (Koontz); § 192.) “ ‘ “[A] defendant who intentionally and unlawfully kills lacks malice... when [he] acts in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a))....” [Citation.]... [H]eat of passion... reduce[s] an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation]....’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye); People v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi).) “ ‘[T]he factor which distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation... caused by the victim....’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 705 (Avila).)
“The heat of passion requirement... has both an objective and a subjective component. [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1252–1253 (Steele).) “The defendant must actually, subjectively, kill” (id. at p. 1253) “while under ‘the actual influence of a strong passion’ induced by... provocation...” (Moye, supra, 47 Cal.4th at p. 550). The provocation must be objectively sufficient in that it would naturally arouse a passion “ ‘in the mind of an ordinarily reasonable person under the given facts and circumstances, ’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]” (Steele, at pp. 1252–1253; Moye, at p. 549.) Thus, “ ‘[h]eat of passion arises when “at the time of the killing, the [defendant’s] reason 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.” [Citations.]’ [Citation.]” (Moye, at p. 550.)
In determining whether objectively sufficient provocation exists, the question is whether a defendant’s resulting mental state, not his conduct, was reasonable in light of the provocation. A “reasonable person” does not kill, regardless of provocation, and a culpable homicide is definitionally not “reasonable.” The test of adequate provocation is whether “ ‘an average, sober person would be so inflamed that he or she would lose reason and judgment.’ ” (People v. Johnston (2003) 113 Cal.App.4th 1299, 1311–1312 (Johnston).) “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 (Najera).) In Najera, the defense contended that the prosecutor committed misconduct and misstated the law by arguing that heat of passion is determined by asking “ ‘Would a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody?’ ” (Ibid., italics omitted.) He said “ ‘the reasonable, prudent person standard... [is] based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that’s not a reasonable person standard.’ ” (Ibid., italics omitted.) The court concluded the prosecutor, by focusing on the reasonableness of the defendant’s conduct in response to the provocation, had incorrectly stated the law. (Id. at p. 224.)
In Najera, the jury was instructed using CALJIC No. 8.42, which is substantially similar to CALCRIM No. 570. (Najera, supra, 138 Cal.App.4th at pp. 224, 226.) The court found the prosecutor’s statements to be misconduct, but harmless error, since the alleged provocations (calling Najera a “jota” or “faggot”) were not sufficient to entitle the defendant to a voluntary manslaughter instruction in the first instance. (Id. at p. 226 & fn. 2.) For the same reason, the court found it unnecessary to decide if the trial court’s response to a jury inquiry regarding the “reasonable person” standard set forth in CALJIC No. 8.42 was sufficient. (Id. at p. 226.)
The People contend Najera “is not the undisputed authority on the standard, ” citing language from several decisions that purportedly refute McAlpin’s “view that provocation need not be such as to provoke a reasonable person to a homicidal rage.” The language on which the People rely, however, addresses the degree of arousal in defendant’s mental state, not his conduct. (See, e.g., Avila, supra, 46 Cal.4th 680, 706 [“[r]easonable people do not become homicidally enraged”]; Carasi, supra, 44 Cal.4th at p. 1307 [“ ‘homicidal rage or passion’ ”]; Koontz, supra, 27 Cal.4th at p. 1086 [same]; People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1236 [same]; People v. Pride (1992) 3 Cal.4th 195, 250 [“to arouse feelings of homicidal rage or passion in an ordinarily reasonable person”]; People v. Lee (1999) 20 Cal.4th 47, 59 [whether the victim did or said anything sufficiently provocative that her conduct would cause an average person to react with deadly passion]; People v. Dixon (1995) 32 Cal.App.4th 1547, 1556 [“would a reasonable person develop homicidal rage”]; People v. Golsh (1923) 63 Cal.App. 609, 614 [“effect upon the mind and emotions of the average man—the man of ordinary self-control”]; People v. Superior Court (Henderson) (1986) 178 Cal.App.3d 516, 524, fn. 4 [“would trigger a homicidal reaction in the mind of an ordinarily reasonable person”], italics added; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705 (Fenenbock) [“provocation so serious that it would produce a lethal response in a reasonable person”]; Moye, supra, 47 Cal.4th at pp. 549–550 [“[t]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim”].) None of these cases holds provocation is sufficient only if it would cause an ordinary person of average disposition to react with deadly force. To the extent their language suggests otherwise, it was unnecessary to the decisions and, therefore, dicta. (See People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 (Ault) [“cases are not authority for propositions not considered”].)
We believe Najera places the proper focus on the effect the provocation would have on the reason and judgment of a reasonable person, and that its holding is entirely consistent with case law, including decisions cited by the People. “ ‘ “[T]he fundamental of the inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion... to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ [Citations.]” (Fenenbock, supra, 46 Cal.App.4th at p. 1704 [whether jury could have found defendant’s reason was so disturbed by anger or outrage that he acted impulsively]; People v. Manriquez (2005) 37 Cal.4th 547, 585–586 [“provocation ‘must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment’ ”]; Moye, supra, 47 Cal.4th at p. 550 [“sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection”]; People v. Logan (1917) 175 Cal. 45, 48–50 [the fundamental inquiry is “whether it be sufficient to obscure reason and render the average man liable to act rashly”]; People v. Hurtado (1883) 63 Cal. 288, 292 [the offense must be “committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person” and “the provocation must at least be such as would stir the resentment of a reasonable man”].)
Indeed, the analysis in Najera appears to have prompted the Judicial Council to recognize the ambiguity in the CALCRIM No. 570 version used in this case, and to modify the instruction accordingly. The Advisory Committee on Criminal Jury Instructions recommended the change in 2008 “because of concern that the original draft [of CALCRIM No. 570] could raise doubt in a juror’s mind about whether the state of mind required for voluntary manslaughter was that an average person similarly situated would have been provoked to kill, or whether provocation resulting in passion rather than judgment was sufficient.” (Judicial Council of Cal., Advisory Com. Rep. on Crim. Jury Instns. (Oct. 10, 2008) p. 2.) The revision “clarified that the latter is required.” (Ibid.) The instruction now provides, in pertinent part, that “[i]n 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 (2008 rev.) (Summer ed. 2010), italics added.)
We note that CALCRIM No. 511 has not been similarly revised, although it appears to suffer from the same defect.
We agree with McAlpin that the language of former CALCRIM No. 570 was ambiguous and did not adequately frame the relevant question for the jury: whether he was provoked by circumstances “ ‘sufficient to cause an “ ‘ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’ ” ’ [Citation.]” (Carasi, supra, 44 Cal.4th at p. 1306; Johnston, supra, 113 Cal.App.4th at p. 1311.) The modifications he requested should have been given.
4. Did the Jury Misunderstand the Law of Provocation?
As we find the trial court’s instructions created an ambiguity regarding the law of provocation, we must determine whether a reasonable likelihood exists that the jury misunderstood and misapplied the instructions. (Young, supra, 34 Cal.4th at p. 1202.) “ ‘ “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ [Citation.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 182.) We also consider the arguments of counsel. (Young, at p. 1202.)
The People argue that, in assessing the adequacy of the provocation, allowing the jury to consider how an ordinary person would react in the same situation “merely serves to inform the ultimate determination of whether such a person would act from passion rather than from judgment.” McAlpin contends “[t]he prosecutor capitalized on the erroneous instruction[s]” during her rebuttal argument “by arguing that manslaughter was not available as a defense if [Annie’s] purported provocation was conduct within her legal rights, and that manslaughter was not available unless [he] was ‘justified in killing her.’ ” (Underscoring omitted.) McAlpin also maintains the prosecutor’s arguments emphasized the ambiguity in CALCRIM Nos. 570 and 511 and, in tandem with the erroneous instructions, virtually eliminated manslaughter as a possible verdict, as they “wrongfully insist[ed] that not only must the provocation be of a nature that would put a reasonable person in a heat of passion, but also that [his] response... must be equally reasonable or justified.” (Underscoring omitted.)
As in Najera, the prosecutor’s comments interspersed correct statements of law with erroneous ones, thereby creating confusion. (Najera, supra, 138 Cal.App.4th at p. 224.) Although she initially states the question as “whether a normal, objective person would have reacted in that way. Not killing, but reacted in a rash, emotional heat of passion response, ” she goes on to frame the relevant reaction in terms of conduct: “We know [McAlpin] reacted in an overreacting way. He murdered her. The question is, [w]ould the victim’s actions have caused a normal ordinary person to overreact?” The jury reasonably could have understood this to mean that defendant overreacted in killing Annie and that its task was to determine whether a reasonable person would have had the same overreaction, in other words, whether the alleged provocation would have caused a reasonable person to kill. Indeed, during deliberation, the jurors sought clarification of the law on provocation, specifically the applicability of the objective standard, albeit with respect to the degree of murder.
Nevertheless, a deficit in one instruction may be supplied by another or cured by the instructions as a whole. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Although the prosecutor characterized the requisite provocation as moving a reasonable person to kill, her overall description of voluntary manslaughter was accurate to the extent she focused on the objective circumstances that would cause a reasonable person to act rashly. CALCRIM No. 570 correctly advised the jury that to be sufficient, the provocation must have been such as to “cause[] an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” And the trial court instructed the jury: “If you believe the attorneys’ comments on the law conflicts [sic] with my instructions, you must follow my instructions.” Absent any indication to the contrary, it must be presumed the jury followed the trial court’s instructions and not the prosecutor’s argument. (People v. Boyette (2002) 29 Cal.4th 381, 436; Najera, supra, 138 Cal.App.4th at p. 224.)
CALCRIM No. 570, in the form given to the jury here, read: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked by the victim; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] and 3. The provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. [¶] If enough time passed between the provocation and the killing for a person of average disposition to “cool off” and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.” (Italics added.)
McAlpin further contends the prosecutor’s argument the killing was not “justified” by Annie’s alleged conduct emphasized the instructional ambiguity. We agree with the People that the prosecutor was simply arguing “that Annie’s decision to see other men [when] she and [McAlpin] had separated was not legally sufficient to provoke the passions of a reasonable person.”
Moreover, even if we were to find a reasonable likelihood the jury misunderstood and misapplied the law regarding provocation as it relates to voluntary manslaughter, we conclude that any error in this regard was harmless.
5. Any Instructional Error Was Harmless
The People maintain that the instructional error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), which provides for reversal only if it appears “reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error.” McAlpin contends, however, that the Chapman standard applies because the “combination of instructional error and misleading argument violated [his] federal constitutional right to present a defense and have it fairly considered by the jury....” (See Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 740–741; see Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) McAlpin contends he was deprived of due process and a fair trial and maintains this error “cannot be deemed harmless beyond a reasonable doubt.” We need not decide whether the instructional error in this case is reviewable under Watson or Chapman, as we conclude the error was harmless under either standard.
“If a trial court’s instructional error violates the United States Constitution, ... [Chapman] requires the People, in order to avoid reversal of the judgment, to ‘prove beyond a reasonable doubt that the error... did not contribute to the verdict obtained.’ [Citation.] But if... instructional error violates only California law, the standard is that stated in [Watson]....” (People v. Mower (2002) 28 Cal.4th 457, 484.)
Instructional error is not prejudicial if “the jury necessarily resolved the factual question adversely to the defendant under other instructions.” (People v. Mincey (1992) 2 Cal.4th 408, 438–439 [failure to instruct].) In convicting McAlpin of first degree murder, the jury necessarily found he “acted willfully, deliberately, and with premeditation.” “First degree willful, deliberate, and premeditated murder involves a cold, calculated judgment, including one arrived at quickly [citation], and is evidenced by planning activity, a motive to kill, or an exacting manner of death. [Citation.] Such state of mind ‘is manifestly inconsistent with having acted under the heat of passion—even if that state of mind was achieved after a considerable period of provocatory conduct.’ [Citation.]” (Carasi, supra, 44 Cal.4th at p. 1306; People v. Wharton (1991) 53 Cal.3d 522, 572.) The jury was instructed that McAlpin acted willfully “if he intended to kill”; acted deliberately “if he carefully weighed the considerations for and against his choice and[, ] knowing the consequences, decided to kill”; and acted with premeditation “if he decided to kill before committing the act that caused death.” Thus, the jury necessarily found that McAlpin acted intentionally, weighed his choices, and decided to kill Annie before strangling her.
In light of the verdict, we may reasonably conclude from the jury’s requests during deliberations that it adopted the prosecution’s theory of the case. The jury asked to see evidence indicating it was considering: (1) whether Annie struggled and how long the strangulation went on, factual issues the parties indicated were determinative of deliberation; (2) McAlpin’s prior conduct and threats to kill Annie, which the prosecutor tied to premeditation; and (3) provocation, including whether the relationship was mutually combative. On the day of the verdict, the jury’s requests suggest it was focused on the prosecutor’s premeditation and deliberation arguments.
McAlpin contends, however, that in responding to Request No. 6, the trial court “did not in any way explain that the evidence of provocation necessary to reduce the degree of conviction from first-degree murder to second-degree did not have to be judged from a reasonable person’s standard; nor did it explain that the evidence of the person’s reaction to the provocation for... second-degree murder... should not be judged from a reasonable person standard.” (Underlining omitted.) McAlpin maintains the jury should have been told that if he “reacted to the provocation in a manner that was impulsive rather than deliberate, he could not be convicted of first-degree murder regardless of how unreasonable his reaction was.” (Underlining omitted.) It is not clear whether he asserts the trial court’s response to the jury’s request as error in itself. If so, he has waived it by failing to support it with reasoned argument and legal authority. (See Gray, supra, 66 Cal.App.4th at p. 994.) If instead, he contends that instructional error under CALCRIM Nos. 570 and 511 also tainted the jury’s determination of whether the offense was first or second degree murder, we disagree. The trial court’s response reasonably informed the jury that the provocation standard applicable to manslaughter does not apply to second degree murder and that provocation may be relevant to whether McAlpin acted with deliberation and premeditation. (See CALCRIM No. 522 [focusing on whether the provocation affected the defendant’s ability to premeditate and deliberate, not whether his response was objectively reasonable].) The jury also was instructed before deliberations began: “A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.” We presume the jury followed that instruction. (Avila, supra, 46 Cal.4th at p. 719.)
D. The People’s Appeal
The trial court struck a five-year enhancement under section 667, subdivision (a) based on McAlpin’s prior serious felony conviction because: “1. It’s already taken into account in the doubling of the term. [¶] 2. [McAlpin’s] otherwise crime free life with respect to... any prior convictions or criminal conduct relating to anybody else other than Annie.... [¶] 3. The age and family circumstances of [McAlpin].” The People contend the trial court had no authority to strike the five-year sentence enhancement (§ 667, subd. (a)), and asks us to modify the judgment to include an additional five-year consecutive term as a sentence enhancement for McAlpin’s prior conviction.
“[S]ection 1385, subdivision (a), authorizes a trial court to dismiss a criminal action ‘in the furtherance of justice’.... [T]he power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions. [Citations.]” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) A trial court’s power to strike an enhancement under section 1385, subdivision (a) is subject “to strict compliance with the provisions of section 1385 and to review for abuse of discretion.” (Romero, at p. 504.) To the extent this issue turns on a question of law, we consider it independently. (People v. Jones (2007) 157 Cal.App.4th 1373, 1380 & fn. 5.) As noted by the People: “[S]ection 1385, subdivision (b) expressly prohibits trial courts from utilizing... section 1385 to strike prior serious felony conviction enhancements under... section 667, subdivision (a).” (People v. Wilson (2002) 95 Cal.App.4th 198, 201(Wilson); see § 1385, subd. (b) [“[t]his section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667”].) Indeed, the Legislature enacted this provision to expressly withdraw the trial court’s power to strike prior serious felony conviction allegations under section 667, subdivision (a). (Romero, supra, 13 Cal.4th at p. 521.) Thus, although a trial court may strike a prior conviction for purposes of the Three Strikes law (id. at pp. 529–530), it may not strike a five-year sentence enhancement under section 667, subdivision (a) based on that conviction. (§ 1170.12, subd. (c) [second strike applies “in addition to any other enhancement or punishment provisions which may apply”]; § 667, subd. (e) [same]; People v. Turner (1998) 67 Cal.App.4th 1258, 1268–1269 (Turner); People v. Garcia (2008) 167 Cal.App.4th 1550, 1560–1561; Wilson, supra, 95 Cal.App.4th at p. 201; People v. Purata (1996) 42 Cal.App.4th 489, 498 (Purata); People v. Dotson (1997) 16 Cal.4th 547, 553 (Dotson).)
On appeal, McAlpin concedes the trial court had no authority to strike the prior serious felony conviction alleged under section 667, subdivision (a) but contends “the appropriate remedy is a remand for the trial court to compose a fair sentence within its discretion based on the entirety of factors, including those factors such as defendant’s age, history, and lack of prior criminality that warrant a reduction in punishment.” In the circumstances of this case, we disagree. Here, there is no need to remand for resentencing because the trial court has no discretion in adding a five-year consecutive term under section 667, subdivision (a). (See§ 667, subd. (a)(1) [mandatory consecutive enhancement term]; Turner, supra, 67 Cal.App.4th at p. 1269 [“[w]hen the truth of the allegation of conviction of a crime qualifying for a five-year enhancement has been established, it is mandatory that the enhancement be imposed”].)
McAlpin contends “[t]he trial court has discretion to fashion a sentence appropriate to serve the interest of justice....” Under the Determinate Sentencing Law (DSL), when the statute specifies three possible terms, “the appropriate term shall rest within the sound discretion of the court.” (§ 1170, subd. (b).) In this case, however, McAlpin was not punished under the DSL, and the trial court’s only discretion was in deciding whether to strike his prior serious felony conviction for purposes of the Three Strikes sentencing provisions. (See § 190; People v. Hernandez, supra, 30 Cal.4th at p. 865 [“[a]bsent a special circumstance finding, the punishment for first degree murder is imprisonment for a term of 25 years to life”].) The decisions on which McAlpin relies in seeking remand for resentencing do not hold otherwise. Indeed, neither court considered the issue he raises: whether a reviewing court must remand the case for resentencing when the unauthorized sentence is the product of a statutory requirement leaving no room for trial court discretion. (See Ault, supra, 33 Cal.4th at p. 1268, fn. 10 [“cases are not authority for propositions not considered”].) In any case, the trial court indicated that if we were to conclude on appeal that the enhancement does not constitute a dual use of the prior conviction: “Then the five-year term would be in order.”
These cases involve the exercise of the trial court’s discretion, specifically, its decision to impose consecutive or concurrent sentences—which is not at issue here. (See People v. Gamble (2008) 164 Cal.App.4th 891, 894; People v. Oates (2004) 32 Cal.4th 1048, 1068 [holding it error to conclude section 654 did not permit multiple enhancements under section 12022.53, subdivision (d)]; see Cal. Rules of Court, rule 4.424 [a trial court must consider the applicability of section 654 “[b]efore determining whether to impose either concurrent or consecutive sentences....”], invalidated in People v. Alford (2010) 180 Cal.App.4th 1463, 1473.)
California courts have consistently rejected the trial court’s conclusion that imposition of a five-year sentence enhancement (§ 667, subd. (a)) constitutes dual use of the prior conviction when a defendant has been sentenced under the Three Strikes law based on that conviction. (See, e.g., People v. Nelson (1996) 42 Cal.App.4th 131, 136–137; Dotson, supra, 16 Cal.4th at pp. 554–556 [indeterminate term under Three Strikes law]; Purata, supra, 42 Cal.App.4th at p. 498; see Turner, supra, 67 Cal.App.4th at p. 1268 [“[i]n the Three Strikes context, the same allegation that a particular prior qualified as a serious felony may serve two separate purposes:... as a five-year enhancement under section 667, subdivision (a); and as a ‘strike’ [under] the Three Strikes laws”].)
III. Disposition
The judgment is modified to impose an additional five-year consecutive term as a sentence enhancement for McAlpin’s prior serious felony conviction (§ 667, subd. (a)). The judgment is affirmed as modified, and the matter is remanded to the trial court with directions to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment in accordance with this disposition.
We concur: Simons, Acting P. J., Needham, J.