Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F0900854
HOCH, J.Defendant William Robert McConnell was convicted by jury of second degree murder (Pen. Code, § 187) and found to have personally used a handgun during the commission of the offense (§ 12022.53, subd. (b)). He was sentenced to an indeterminate term of 40 years to life in state prison (15 years to life for the murder, plus 25 years to life for personally discharging a firearm resulting in great bodily injury or death [§ 12022.53, subd. (d)]).
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the sentence enhancement must be stricken because the jury did not find that defendant personally discharged a firearm resulting in great bodily injury or death; (2) the trial court violated defendant’s constitutional rights by admitting his statements to police into evidence because neither his waiver of the right to remain silent nor his subsequent statements were voluntarily given; (3) defendant’s constitutional rights were further violated when the trial court declined to give certain requested jury instructions; (4) the prosecutor engaged in prejudicial misconduct by reading from a California Supreme Court opinion during his closing argument; and (5) the trial court improperly allowed transcripts of defendant’s recorded statements to police into the jury deliberation room without also providing the jury with a means of playing the recordings.
As we shall explain, we agree defendant’s sentence must be modified to strike the enhancement for personal discharge of a firearm resulting in great bodily injury or death because there was no jury verdict form finding that defendant discharged a firearm causing great bodily injury or death. However, because the jury found that defendant personally used a handgun during the commission of the offense, a mandatory firearm use enhancement shall be imposed and executed in its place.
We disagree with the remainder of defendant’s contentions. We conclude that defendant was competent to waive his right to remain silent and that his statements made during police interrogations were voluntarily given. Thus, the trial court did not violate defendant’s constitutional rights by admitting his statements into evidence. With regard to defendant’s claim of instructional error, we find no instructional error. Defendant’s requested jury instructions were properly rejected by the trial court as confusing, duplicative or argumentative. Next, we find no prejudicial prosecutorial misconduct because the quote read by the prosecutor was an accurate statement of the law that came from a majority opinion of our Supreme Court. Finally, there was no error in allowing the transcripts of defendant’s recorded statements to police into the jury deliberation room. For these reasons, we affirm the modified judgment.
FACTS
In August 2009, defendant lived in a rural portion of Plumas County known as Dixie Valley. Several miles of unpaved road separated his house from the nearest town. A sheepherder named Eduardo Campos-Perez also lived in Dixie Valley. He was a Mexican immigrant who spoke very little English. Campos-Perez used an ATV and several dogs to herd the sheep. He lived in a trailer about a mile from defendant’s house.
On the evening of August 6, 2009, Campos-Perez arrived at defendant’s house unannounced. Defendant had consumed several beers during the course of the day and was watching a movie when the unexpected visitor arrived on his ATV. While the men did not share a common language, Campos-Perez managed to convey to defendant that his ATV was having mechanical problems. He also offered defendant some vodka. Defendant invited Campos-Perez onto his porch and retrieved two glasses from the house. After taking a couple shots of vodka, defendant examined the ATV, discovered the gear shifter had come loose, and determined he did not have the proper tools to fix the vehicle.
Defendant and Campos-Perez returned to the porch to drink some more vodka. Their conversation began amicably enough, although they struggled to understand each other. Several drinks later, the men began to fight. According to defendant’s account of events, he told Campos-Perez to keep his dogs away from defendant’s house because the previous year one of these dogs impregnated defendant’s Rottweiler. Without warning, Campos-Perez hit defendant in the face, knocking him to the floor. He then hit defendant two or three more times. When defendant’s Rottweiler stepped in to protect defendant, Campos-Perez started yelling in Spanish and kicked the dog. Defendant grabbed Campos-Perez, pushed him off of the porch, and then helped the man to his feet, explaining that he “felt bad” and did not understand why Campos-Perez suddenly became upset. Campos-Perez continued yelling in Spanish and resumed kicking the dog.
Defendant ran into the house and retrieved a.45 caliber semi-automatic handgun for protection. According to defendant, while he was in the house, Campos-Perez tried to steal his truck. Defendant ran outside with the handgun and “must have” fired two rounds at the vehicle, which ended up stuck in a ditch across the road from the house. One of the rounds struck and flattened the left rear tire. The other round struck the left side of the truck bed, penetrated into the bed, and lodged in the spare tire.
Defendant ran back into the house and exchanged the.45 caliber handgun for a Marlin 30-30 lever action rifle. According to defendant, as he approached the truck with the rifle, Campos-Perez emerged from the driver’s side of the vehicle and “came at [him].” Defendant pulled the trigger, but the rifle did not fire. Defendant “about had a heart attack, ” quickly chambered another round, and shot Campos-Perez in the chest. Campos-Perez immediately collapsed to the ground. Defendant, “totally in shock at this point, ” stood motionless for a couple minutes. Convinced that Campos-Perez was dead, defendant opened the driver’s side door and turned off the vehicle. He then tried to call 911, but neither of his cell phones worked.
The next morning, defendant walked to a neighbor’s house, borrowed an ATV, and drove to Martin Meyer’s house about a mile away. Meyer was one of defendant’s close friends. He was also the man who sold defendant the.45 caliber handgun defendant used to shoot the truck the night before. When defendant arrived, he told Meyer that “he got in a fight, an argument, with the sheepherder and that he had killed him.” Defendant asked Meyer to call his mother and the co-owner of defendant’s house. Defendant also told Meyer to come over to his house to pick up the handgun if he wanted it back since defendant would probably be going to jail and the gun would be confiscated. After retrieving the gun and a phone card from defendant’s house, Meyer drove to the town of Chilcoot, called the Sheriff’s Department, and made the other requested phone calls.
Deputy John Fatheree and Detective Michael Smith arrived a short time later and followed Meyer back to defendant’s house. When they arrived, defendant’s truck was still in the ditch and Campos-Perez’s body was still lying on the ground near the truck. Defendant was standing on the porch with his hands in the air. The Marlin 30-30 rifle defendant used to kill Campos-Perez was lying on a table on the porch along with a.22/.410 rifle/shotgun combo and two air rifles.
Detective Smith questioned defendant on the porch. Later in the afternoon, Sergeant Steven Peay arrived and also questioned defendant. Defendant’s account of events was essentially that described above, except that defendant omitted all mention of the.45 caliber handgun. Defendant was arrested later in the evening, transported to the Plumas County Jail, and questioned again at the Sheriff’s Department shortly after midnight. During this interview, defendant acknowledged the role the.45 caliber handgun played in the events of the previous night, but maintained that Campos-Perez attacked him on the porch, attempted to steal his truck, and ran toward him immediately before the fatal shot was fired.
Certain aspects of defendant’s account are not supported by the physical evidence. For instance, while defendant claimed Campos-Perez attacked him on the porch and hit him several times, neither Detective Smith nor Deputy Fatheree witnessed any injuries on defendant consistent with such an assault. While defendant claimed his dog stepped in to defend him, prompting Campos-Perez to kick the animal several times, the dog did not appear to be injured. Nor were there any bite marks on Campos-Perez’s body. And while defendant claimed Campos-Perez ran toward him prior to being shot, the position of his body and the footprints at the crime scene indicated that Campos-Perez was running, not toward defendant, but in a perpendicular direction away from the truck when the fatal shot was fired. Moreover, the bullet entered Campos-Perez’s upper left arm, severed the humerus, exited the arm through the armpit, and then entered the chest cavity, penetrated the heart, both lungs and liver, passed through a rib, and lodged in the soft tissue on the right side of his body. This path is inconsistent with defendant’s claim that Campos-Perez ran toward him and that defendant fired at the center of his chest.
DISCUSSION
I
Firearm Enhancement
Defendant contends the sentence imposed for the firearm enhancement must be stricken because the jury did not find that he personally discharged a firearm resulting in great bodily injury or death. We agree.
Section 12022.53 establishes three sentence enhancements for the personal use or discharge of a firearm in the commission of certain enumerated felonies. Subdivision (a) specifies the felonies to which the statute applies. (§ 12022.53, subd. (a).) Subdivision (b) provides a 10-year enhancement for the personal use of a firearm. (§ 12022.53, subd. (b).) Subdivision (c) provides a 20-year enhancement for the personal and intentional discharge of a firearm. (§ 12022.53, subd. (c).) Subdivision (d) provides a 25-years-to-life enhancement for the personal and intentional discharge of a firearm proximately causing great bodily injury or death to someone other than an accomplice. (§ 12022.53, subd. (d).)
“Section 12022.53 thus recognizes different degrees of culpability, and imposes ‘three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies.’ [Citation.]” (People v. Grandy (2006) 144 Cal.App.4th 33, 42; People v. Palacios (2007) 41 Cal.4th 720, 725, fn. 3 [“statutory scheme distinguishes among different levels of involvement of a firearm in the commission of a crime”].) For example, a defendant may be found to have personally used a firearm within the meaning of section 12022.53, subdivision (b), where he carried the weapon “by his side, deliberately within [the victim’s] view, ” and “[t]he display of the firearm, along with [the] defendant’s menacing tone of voice, served to intimidate [the victim] into giving up possession of her phone.” (People v. Bryant (2011) 191 Cal.App.4th 1457, 1472.)
In order to qualify for the discharge enhancement of section 12022.53, subdivision (c), the defendant must fire the weapon. While the firearm is not required to project a bullet in order for this enhancement to apply, the weapon must “‘give outlet or vent to’” an explosion within the firing chamber. (People v. Grandy, supra, 144 Cal.App.4th at pp. 42-44 [the defendant discharged a firearm even though the gun misfired and did not emit a bullet].) And in order for the enhancement of section 12022.53, subdivision (d), to apply, the defendant’s discharge of the firearm must proximately cause great bodily injury or death to someone other than an accomplice. This enhancement applies regardless of whether the great bodily injury or death was caused by a bullet or instead by an evasive maneuver of the victim. (See People v. Palmer (2005) 133 Cal.App.4th 1141, 1152; People v. Zarazua (2008) 162 Cal.App.4th 1348, 1361-1362.)
Defendant was convicted of murder, a felony enumerated in section 12022.53. (§ 12022.53, subd. (a)(1).) The initial information alleged that defendant “personally used and discharged a firearm, to wit: A.45 CALIBER HANDGUN and A MARLIN 30/30 RIFLE, which proximately caused great bodily injury and death to EDUARDO CAMPOS, within the meaning of... §§ 12022.5(a) and 12022.53(b)-(d).” The first amended information alleged that defendant “personally used and discharged a firearm, to wit: A MARLIN 30/30 RIFLE, which proximately caused great bodily injury and death to EDUARDO FIDEL CAMPOS PEREZ, within the meaning of... §§ 12022.5(a) and 12022.53(b)-(d).” The jury found that, in the commission of the murder, defendant “did personally use a firearm, to wit: a handgun.” (Italics added.) The record does not contain any verdict form finding that defendant discharged a firearm causing great bodily injury or death.
Section 12022.5, subdivision (a), provides in relevant part that “any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.” Because the jury was instructed on voluntary manslaughter as a lesser-included offense to murder, and because voluntary manslaughter is not a felony enumerated in section 12022.53, subdivision (a), the firearm enhancement of section 12022.5 would have applied had the jury acquitted defendant of murder and found him guilty of voluntary manslaughter.
In People v. Najera (1972) 8 Cal.3d 504 (Najera), the defendant was convicted by jury of first degree robbery and found to have been armed with a firearm during the commission of the offense. (Id. at p. 506.) Despite the fact that the jury was not asked to find whether the defendant used a firearm in the commission of the robbery, the People argued his sentence could be enhanced under section 12022.5. (Id. at p. 508.) Rejecting this argument, our Supreme Court explained that “one who is ‘armed’ with a firearm does not thereby necessarily ‘use’ it, although the word ‘use’ does not require an actual discharge of the weapon.” (Id. at p. 510, fn. 5.) The court further explained that section 12022.5 “requires a jury determination of the factual question whether or not defendant used a firearm in the commission of the underlying offense, unless defendant has waived a jury trial or has pleaded guilty. As defendant in the instant case did not waive a jury trial nor plead guilty, he was entitled to a jury determination of the matter, preceded by proper jury instructions regarding the meaning of section 12022.5. As explained above, the jury’s finding that defendant was armed with a deadly weapon at the time of the offense was insufficient to establish his use of a firearm.” (Id. at p. 510, fn. omitted.)
In People v. Wiley (1995) 9 Cal.4th 580, our Supreme Court held there is no right under the California Constitution to have a jury determine whether charges were brought and tried separately for purposes of imposing the prior serious felony enhancement of section 667, subdivision (a). (Id. at p. 589.) In so holding, the court discussed Najera, explaining the Najera decision was “undoubtedly correct as a matter of statutory interpretation” and “unnecessarily” cited to the California Constitution. (Id. at p. 588.) The court stated that the “brief mention in Najera of the state constitutional right to a jury trial cannot properly be viewed as a considered decision determining the scope of the California constitutional right to a jury trial, as applied to sentencing enhancements.” (Ibid.)
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) “The rule of Apprendi is grounded on the reasoning that ‘[t]he federal Constitution requires the elements of a crime to be proved beyond a reasonable doubt because they expose the defendant to punishment; likewise, the elements of a sentence enhancement must be proved beyond a reasonable doubt if there is exposure to increased punishment. [Citation.]’” (People v. Izaguirre (2007) 42 Cal.4th 126, 131, quoting People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.)
Here, the allegation that defendant discharged a firearm causing great bodily injury or death increased his punishment by a term of 25 years to life. He therefore had the right under the federal Constitution to have the truth of this allegation decided by a jury. And much like the situation in Najera, supra, 8 Cal.3d 504, the fact that defendant was found to have used a firearm in the commission of the murder does not mean that he necessarily discharged it causing great bodily injury or death. Defendant did not waive a jury trial nor plead guilty. While the information charged defendant with discharging a rifle causing Campos-Perez’s death, he was entitled to have the jury determine whether he did so. The jury’s finding that defendant used a firearm was insufficient to establish that he discharged that firearm causing great bodily injury or death.
Moreover, while “technical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice” (People v. Webster (1991) 54 Cal.3d 411, 447), the failure to secure a finding as to the applicability of section 12022.53, subdivision (d), cannot be construed as a technical defect in the verdict. Nor is it unmistakably clear that the jury intended to find that defendant discharged a firearm causing great bodily injury or death. Indeed, the jury found that defendant used a handgun. Campos-Perez was killed with a 30-30 rifle.
We hereby modify the judgment to strike defendant’s sentence of 25 years to life imposed for violation of section 12022.53, subdivision (d). However, because the jury did find that defendant used a firearm in the commission of the murder, we impose the mandatory enhancement of 10 years under section 12022.53, subdivision (b).
II
Statements to Police
Defendant also claims the trial court violated his federal constitutional rights by admitting into evidence his statements to police. This is so, argues defendant, because neither the waiver of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) nor his subsequent statements were voluntarily given. We disagree.
A. Police Interrogations
As already mentioned, defendant was initially questioned by Detective Smith on his porch the day following the shooting. Because several rifles were also on the porch, defendant was handcuffed in order to protect the safety of the officers. Defendant was given a preliminary alcohol screening (PAS) test, which recorded a blood-alcohol level of.165 percent. Defendant did not appear to be intoxicated. As Detective Smith explained: “[H]e didn’t have any slurred speech and his walking ability was fine, his -- I think his mental state was fine with his mind. He was answering my questions, he wasn’t slurring his words. I didn’t notice him to be intoxicated.” Defendant was advised of his Miranda rights, acknowledged that he understood these rights, and stated: “I’ll tell you what happened.”
Defendant then explained that Campos-Perez was a “friendly” sheepherder who did not speak English very well and whose dog had impregnated defendant’s dog the previous year. Campos-Perez’s ATV broke down at defendant’s house the previous night. Defendant examined the ATV and determined that he could not fix the vehicle. Campos-Perez brought a bottle of vodka, had been “drinking pretty heavily, ” and was “way drunk” when he arrived. Defendant also drank “a couple shots” of vodka with Campos-Perez while the two were on the porch. Without warning, Campos-Perez hit defendant several times, knocking him out of his chair and onto the floor. When defendant’s dog stepped in to protect defendant, Campos-Perez started kicking the animal. Defendant then got up and knocked Campos-Perez off of the porch. Defendant tried to get the dog to come in the house, but the animal was “pretty freaked out” and would not obey his commands.
Defendant then went inside the house to get a rifle for protection. While defendant was doing so, Campos-Perez started defendant’s truck. Defendant ran out of the house with the rifle. Campos-Perez “tried to run over [defendant’s] dog” and ended up crashing in the ditch. As defendant approached the truck with the rifle, Campos-Perez “got out of the truck and came at [him].” Afraid that Campos-Perez was “going to kill [him], ” defendant shot him in the chest.
Sergeant Peay arrived later in the afternoon and joined in the questioning. After Detective Smith pointed out that there was a bullet hole in the side of the truck, defendant stated he did not remember firing more than one shot, but explained that “[i]t was pretty nuts” and he “may have shot a warning shot.” Defendant also explained that he thought the rifle “dry fired” once and that he was “scared” because Campos-Perez “went psycho on [him].” When Sergeant Peay asked whether defendant had a handgun with him the previous night, defendant responded: “Nope.”
With respect to the fight itself, defendant added that he helped Campos-Perez to his feet after knocking him off the porch because he “felt bad” for knocking him down. Defendant abandoned the claim that Campos-Perez tried to run his dog over, stating instead that when he got out of the house with the rifle, the truck was already in the ditch. Defendant repeated that when he reached the truck, about six to eight feet behind the driver’s side of the vehicle, Campos-Perez “came at [him]” and defendant fired. According to defendant, the rifle “dry fired” when Campos-Perez was still in the truck. He explained that he was not trying to shoot Campos-Perez or the truck at that point, but then stated that he “must have” fired at the truck and that he was “scared.” When Sergeant Peay asked defendant what he was thinking when he got the rifle from the house, defendant responded: “I was going to save my life.” And when Sergeant Peay pointed out that Campos-Perez was leaving in defendant’s truck when defendant grabbed the rifle, defendant answered that he “thought he was coming back” and that “crazy people will come back.”
At the close of the interview, Detective Smith stated: “We’re trying to figure out what, what we’re going to do with you. [¶]... [¶]... I’ll tell you what, if anything if you think of anything later on if you happen to go with the deputies if you got something else to talk about, don’t be afraid to call [¶]... [¶] Because I think once you get your attorney you’re not going to be able to probably talk to us anymore... [¶]... [¶] He’ll shut you down.”
As already mentioned, defendant was arrested later in the evening and transported to the Plumas County Jail. Defendant was exhibiting symptoms of alcohol withdrawal when he arrived and was given the anti-anxiety medication Librium to ease these symptoms. Shortly after midnight, defendant was transported to the Sheriff’s Department and again questioned by Detective Smith and Sergeant Peay. While defendant appeared to be tired, he did not appear to be sick or disoriented. Detective Smith again advised defendant of his Miranda rights and defendant again acknowledged that he understood these rights before answering questions.
Defendant began by admitting he had a.45 caliber handgun that he “might have grabbed” the night he killed Campos-Perez, but stated that he did not remember shooting this gun and that he gave it back to Meyer and did not want to get his friend involved. Defendant then recounted the version of events previously delivered, with the addition of the role played by the.45 caliber handgun. After defendant and Campos-Perez drank “eight or nine shots” of vodka, Campos-Perez hit defendant several times without warning, knocking him to the floor and prompting defendant’s dog to become involved. Campos-Perez started yelling in Spanish and kicked the dog. Defendant grabbed Campos-Perez, threw him off of the porch, and then helped him up. Campos-Perez continued kicking the dog. Defendant ran into the house and retrieved the.45 caliber handgun. While defendant was in the house, Campos-Perez tried to steal his truck. Defendant ran outside with the handgun and “must have” fired two rounds at the vehicle. Defendant then ran back into the house and exchanged the handgun for the rifle. As defendant approached the truck with the rifle, Campos-Perez emerged from the driver’s side of the vehicle and “came at [him].” Defendant pulled the trigger, but the rifle did not fire. Defendant chambered another round, and shot Campos-Perez in the chest.
Toward the end of the interview, defendant stated: “Well actually it’s probably about time to get an attorney involved in this.” Defendant then paused and said: “No, I don’t really. I’m not trying to mislead you guys I have a hard time even figuring out what my own intentions were [¶]... [¶] I know me I’m not a murderous thug or anything [¶]... [¶] However, I do believe in protecting life and property.” Defendant then stated: “I think I better wait for an attorney at this point.” Defendant answered some “fairly innocuous” questions following this statement.
Defendant moved to suppress the statements made during these interviews. The trial court denied the motion with respect to the first interview and the majority of the second interview, suppressing only those statements elicited after defendant stated that he wanted to wait for an attorney.
B. Waiver of Defendant’s Miranda Rights
Defendant contends the “initial waiver on the morning of August 6 was involuntary because of his level of intoxication” and “the effects of chronic liver disease, ” which, according to defendant, “made it impossible for [him] to rationally assess the decision to waive his Miranda rights.” We are not persuaded.
The determination of whether a waiver of Miranda rights was voluntary, knowing, and intelligent has two dimensions. “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]” (Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421].)
Defendant does not argue that he was coerced, intimidated, or deceived into waiving his Miranda rights. Instead, he bases his argument on the second component of the analysis, his level of comprehension. However, our Supreme Court “has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs, where, as in this case, there is nothing in the record to indicate that the defendant did not understand his rights and the questions posed to him.” (People v. Clark (1993) 5 Cal.4th 950, 988, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Breaux (1991) 1 Cal.4th 281, 300-301; People v. Jackson (1989) 49 Cal.3d 1170, 1189.) “All that is required is that the defendant comprehend ‘all of the information that the police are required to convey’ by Miranda. [Citation.] ‘Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.’ [Citation.]” (People v. Clark, supra, 5 Cal.4th at p. 987.)
In this case, despite defendant’s blood-alcohol level and liver disease, he was coherent, did not slur his words, stated that he understood each right that was read to him, appeared to understand the questions posed, and gave detailed answers. Indeed, Detective Smith believed “the PAS might have been a mistake” until defendant acknowledged that he had taken a large shot of vodka from a coffee cup. We conclude that defendant was aware of and understood his Miranda rights and voluntarily, knowingly, and intelligently waived these rights.
Nor are we persuaded the subsequent waiver of defendant’s Miranda rights at the Sheriff’s Department was involuntary “because it was influenced by the detective’s advisement that an attorney would ‘shut him down, ’ and because the jail had administered Librium, a drug which was likely to induce drowsiness and confusion.” First, Detective Smith’s statement at the end of the first interview, that defendant should feel free to call him if he thought of anything else and that an attorney would probably advise him not to do so, cannot be held to have rendered defendant’s subsequent waiver of Miranda rights involuntary. Aside from reminding defendant that he had the right to an attorney, this statement should have conveyed to defendant that continuing to talk to the police was perhaps not the best idea since his attorney would probably advise against it.
Second, despite the fact that defendant was given Librium to ease his symptoms of alcohol withdrawal, we conclude he was competent to waive his Miranda rights. In this regard, People v. Breaux, supra, 1 Cal.4th 281, is instructive. The defendant in that case had taken heroin earlier in the day, was shot in the arm and thigh while trying to escape from police, and was given morphine at the hospital to alleviate his pain. (Id. at pp. 299-300.) Our Supreme Court found a voluntary waiver of Miranda rights because “the officers did not use an intimidating tone” and “defendant did not appear intimidated at all.” (Id. at p. 300.) The court also found the waiver to be knowing and intelligent, explaining that “defendant appeared to understand the questions, he was responsive, and his answers were prompt, detailed, and pertinent.” (Id. at pp. 300-301.) The same is true of defendant’s second interview in this case. We find a voluntary, knowing, and intelligent waiver of defendant’s Miranda rights.
C. Voluntary Character of Defendant’s Statements
Defendant further asserts that “the statements themselves were involuntary, ” and that the use of these statements at trial violated his federal constitutional rights, particularly the right to due process under the Fourteenth Amendment and the privilege against self-incrimination under the Fifth Amendment. Not so.
“In reviewing the voluntary character of incriminating statements, ‘“[t]his court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] With respect to the conflicting testimony, the court must ‘accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’” [Citation.]’ ‘In order to introduce a defendant’s statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.]... When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court’s determination of voluntariness.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 404; People v. McWhorter (2009) 47 Cal.4th 318, 346.)
“A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions.” (People v. Maury, supra, 30 Cal.4th at p. 404, citing People v. Benson (1990) 52 Cal.3d 754, 778.) After reviewing the record, including the taped statements, we do not find the requisite coercion. Moreover, the mere fact that defendant had a blood-alcohol level of.165 percent during the interview on his porch does not render the statements adduced during that interview involuntary. (See People v. Hendricks (1987) 43 Cal.3d 584, 589-590 [defendant mixed and drank two or three whiskey-and-cokes during the interview, but was able to comprehend and answer all the questions the officers asked].) Nor does the fact that defendant was suffering from alcohol withdrawal and given Librium shortly before the second interview at the Sheriff’s Department. (See People v. Perdomo (2007) 147 Cal.App.4th 605, 616-618 [defendant was recovering from surgery and appeared to be under the influence of narcotic pain medication, but provided coherent and detailed answers to the officers’ questions]; see also People v. Hernandez (1988) 204 Cal.App.3d 639, 648 [defendant was suffering from drug withdrawal, but was coherent and able to comprehend all questions asked].) We conclude defendant’s capacity to comprehend and resist was not “so disabled that he was incapable of free or rational choice.” (In re Cameron (1968) 68 Cal.2d 487, 498.)
The trial court did not violate defendant’s constitutional rights by admitting his statements into evidence.
III
Instructional Error
Defendant further asserts that his constitutional rights were violated when the trial court declined to give certain requested jury instructions, one of which would have informed the jury that an assault, trespass, or theft of property could amount to “provocation” sufficient to reduce murder to voluntary manslaughter. He is mistaken.
“Murder involves the unlawful killing of a human being with malice aforethought [§ 187, subd. (a)], but a defendant who intentionally commits an unlawful killing without malice is guilty only of voluntary manslaughter [§ 192]. [Citation.] For purposes of voluntary manslaughter, an intentional unlawful killing can lack malice when the defendant acted under a ‘“‘sudden quarrel or heat of passion’”’ or when the defendant acted under ‘“[an] unreasonable but good faith belief in having to act in self-defense.”’ [Citation.]” (People v. Blacksher (2011) 52 Cal.4th 769, 832.) “Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation].” (People v. Breverman (1998) 19 Cal.4th 142, 153-154.)
“‘It is well settled that the trial court is obligated to instruct on necessarily included offenses -- even without a request -- when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 715.)
In accordance with this rule, the trial court properly instructed the jury regarding voluntary manslaughter. After the jury was instructed on the elements of murder and the difference between first and second degree murder, the jury was informed: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.” (CALCRIM No. 522.)
The jury was then instructed on heat of passion voluntary manslaughter: “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. [¶] A defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] One: The defendant was provoked; [¶] Two: As a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and [¶] Three: The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.” (CALCRIM No. 570.)
The instruction continued: “In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such 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 re[g]ain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] The People have a burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant [not] guilty of murder.” (CALCRIM No. 570.)
The version of the instruction given to the jurors during their deliberations properly instructs: “If the People have not met this burden, you must find the defendant not guilty of murder.” However, the reporter’s transcript records the last half of this sentence as “you must find the defendant guilty of murder.” This was either a misstatement by the trial court or a typographical error by the court reporter. Assuming it was the former, in light of the instructions as a whole, we do not believe the jury would have been misled by the error. Nor does defendant raise this error on appeal and has therefore forfeited the issue. (See Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1261-1262 [failure to raise an issue on appeal may result in a forfeiture of the issue].)
The jury was also properly instructed on imperfect self-defense voluntary manslaughter (CALCRIM No. 571), self-defense as a complete defense to murder and voluntary manslaughter (CALCRIM No. 505), and on the right to use reasonable force to eject a trespasser from real property (CALCRIM No. 3475).
Defendant complains that the trial court refused to give the jury the following instruction: “Where it is shown that the defendant was provoked by an assault, trespass, or theft of property, such provocation may be sufficient to reduce murder to manslaughter.” Defendant argues that this instruction was needed to clarify CALCRIM No. 570 because “almost any emotion can fall within the category of legal provocation; it can be ‘any violent, intense, high-wrought or enthusiastic emotion.’” According to defendant, “without a pinpoint instruction that informs the jury which emotions potentially amount to legal provocation, the jury is left at sea, and is likely to base its decision on subjective factors rather than any rule of law.” We are not persuaded.
Defendant is correct, of course, that “[a] criminal defendant is entitled, on request, to an instruction ‘pinpointing’ the theory of his defense.” (People v. Wharton (1991) 53 Cal.3d 522, 570 (Wharton); People v. Wright (1988) 45 Cal.3d 1126, 1137.) However, “instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories ‘is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.’” (Wharton, supra, 53 Cal.3d at p. 570, quoting People v. Wright, supra, 45 Cal.3d at p. 1143.)
In Wharton, supra, 53 Cal.3d 522, our Supreme Court held that the trial court “erred in refusing to instruct the jury, at defendant’s request, that legally adequate provocation could occur over a considerable period of time.” (Id. at p. 571.) There, the defendant’s theory at trial was that “no single action on the part of the victim provoked the fatal blow” and that a certain “book-throwing incident was merely the culmination of his pent-up frustration and anger emanating from his ongoing dysfunctional relationship with the victim. In other words, his defense theory at trial was that he killed after enduring provocatory conduct by the victim over a period of weeks.” (Ibid.) Our Supreme Court concluded: “Because defendant requested a ‘pinpoint’ instruction on his theory of the case that was neither argumentative nor duplicated in the standard instructions, the trial court erred in failing to deliver it to the jury.” (Ibid.)
The same was not true, however, with respect to the trial court’s refusal of another requested instruction which would have told the jury that “if provocation occurred over such a period, the jury ‘must’ take that period of time into account in determining the effect of the cooling-off period.” (Wharton, supra, 53 Cal.3d at p. 570.) Our Supreme Court explained: “By directing that the jury ‘must’ take into account the long period of provocation in determining the effect of a cooling-off period, defendant’s proposed instruction improperly singled out one factor, favorable to defendant, and improperly elevated it over other factors that the jury should also consider. This portion of the instruction was thus objectionable as argumentative and properly refused....” (Id. at p. 571.)
Here, defendant’s theory was that Campos-Perez trespassed on his property, assaulted him on the porch, and attempted to steal his truck, all of which provoked defendant to act from passion rather than from judgment. Unlike Wharton, where the jury would not have understood that legally adequate provocation could occur over a considerable period of time, we do not believe the jury in this case needed to be told that an assault, trespass, or theft of property could amount to provocation. This is so because the jury was told that “no specific type of provocation is required.” (CALCRIM No. 570.) The jury was also told that any act or series of acts “over a short or long period of time, ” can amount to legally adequate provocation if it “would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” (Ibid.) We believe the jury understood from the instructions given that assault, trespass, and theft of property could amount to provocation.
Defendant also complains that the trial court refused to instruct the jury with CALJIC No. 8.44, which provides: “Neither fear, revenge, nor the emotion induced by and accompanying or following an intent to commit a felony, nor any or all of these emotional states, in and of themselves, constitute the heat of passion referred to in the law of manslaughter. Any or all of these emotions may be involved in a heat of passion that causes judgment to give way to impulse and rashness. Also, any one or more of them may exist in the mind of a person who acts deliberately and from choice, whether the choice is reasonable or unreasonable.” The trial court refused this instruction as “more confusing than helpful to the jury” and explained that the same concept was “covered in the CALCRIM jury instructions.” We agree with the trial court’s assessment.
The point conveyed by CALJIC No. 8.44 is that no specific emotion alone constitutes heat of passion. (See People v. Booker (2011) 51 Cal.4th 141, 181, fn. 21.) The same point is adequately made by CALCRIM No. 570: “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.” While CALCRIM No. 570 uses different examples of emotions that may cause a person to act without due deliberation and reflection, i.e., in the heat of passion, the same point is made.
Finally, defendant complains that the trial court refused to give the jury the following instruction: “If you find the alleged victim herein came onto the defendant’s property and assaulted him and otherwise committed illegal acts such as stealing the defendant’s vehicle and driving in a dangerous manner, and those actions caused immediate fear and panic, under these circumstances you may reasonably infer that the defendant was aroused to passion and his reason was obscured by such provocation which may be sufficient to produce such effects in a person of average disposition and based on those facts if you believe them to be true, the defendant would be guilty of manslaughter only, if anything.” This proposed instruction is argumentative and was properly refused by the trial court. (See People v. Wright, supra, 45 Cal.3d at p. 1137 [argumentative instruction “implies certain conclusions from specified evidence”].)
Having found no instructional error, we also reject defendant’s assertion that his due process right to present a complete defense was violated.
IV
Prosecutorial Misconduct
We also reject defendant’s contention that his conviction must be reversed because the prosecutor quoted the following passage from In re Christian S. (1994) 7 Cal.4th 768 at page 783, during his closing argument to the jury: “We caution, however, that the doctrine [of imperfect self-defense] is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense. We also emphasize what should be obvious. Fear of future harm -- no matter how great the fear and no matter how great the likelihood of the harm -- will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. ‘“[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.”... [¶] This definition of imminence reflects the great value our society places on human life.’ [Citation.]”
Defendant argues that “[r]eading the Supreme Court language on ‘imminent peril’ distorted the legal rule and denied [defendant] a fair trial.” He relies on People v. Hawthorne (1992) 4 Cal.4th 43 (Hawthorne), a case in which the prosecutor, in closing argument, “impugned the integrity of [defense] counsel, in part by quoting from Justice White’s dissenting opinion in United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149], to the effect that law enforcement has an obligation to ascertain ‘the true facts surrounding the commission of the crime’ [citation], which defense counsel do not.” (Hawthorne, supra, 4 Cal.4th at p. 59.) Our Supreme Court held this to be misconduct: “The closing statements of counsel should relate to the law and the facts of the case as each side interprets them. Whether or not attributed, the views expressed in Justice White’s dissent interject an extraneous generalization, potentially diverting the jury’s attention from the specifics upon which they must focus. Moreover, this generalization ‘is not one that is shared by all judges or courts. It paints with too broad a brush.’ [Citation.] We therefore disapprove its use even in response to a personal attack by defense counsel.” (Id. at pp. 60-61.)
However, this misconduct did not require reversal: “The prosecutor did not express any improper personal opinions regarding defendant’s guilt or the credibility of witnesses. [Citation.] This portion of the argument was relatively brief and, especially when viewed in context, hardly so inflammatory as to distract the jury from a thorough and reasoned evaluation of the evidence. [Citation.] Finally, the court specifically admonished the jury ‘not to consider any citations or any judge’s statements in any case.... It is not to be part of your consideration....’ We find no likelihood that the jury failed to place the arguments of counsel in proper perspective or that the objectionable comments materially contributed to the verdict.” (Hawthorne, supra, 4 Cal.4th at p. 61.)
We need not decide whether the prosecutor in this case engaged in misconduct by reading from In re Christian S., supra, 7 Cal.4th 768, because we find no conceivable prejudice. Unlike the portion of Justice White’s dissent read by the prosecutor in Hawthorne, the quote read in this case is an accurate statement of the law that came from a majority opinion of our Supreme Court. We fail to see how defendant could have been prejudiced by an accurate statement of the law. Moreover, like Hawthorne, the quotation was relatively brief, was unlikely to distract the jury from a thorough and reasoned evaluation of the evidence, and the trial court admonished the jury that “this is not jury instruction, this is argument, and again please keep in mind that the jury instructions you’re required to follow are the ones given to you by the Court.” We find “no possibility that the jury would have reached a more favorable verdict had the [purported] misconduct not occurred.” (People v. Wash (1993) 6 Cal.4th 215, 261; People v. Gionis (1995) 9 Cal.4th 1196, 1220.)
V
Jury Deliberations
Nor do we agree with defendant’s final claim that the trial court improperly allowed transcripts of defendant’s recorded statements to police into the jury deliberation room without also providing the jury with a means of playing the recordings.
First, we disagree with defendant’s premise that the jury was not given a means of playing the recordings. It appears from the record that the recordings themselves were sent into the deliberation room, but that the only equipment available to play these recordings was in the courtroom. The jury was informed that it could request to see any of the evidence in the case, even evidence not allowed into the deliberation room, and further understood that the courtroom had the capability of playing the recordings. From this, we believe the jury understood that it had a means of playing the recordings, i.e., a simple request to have the recordings played.
Second, the trial court allowed the jury to take the transcripts of the recordings into the jury deliberation room because it had witnessed jurors taking notes on the transcripts as they viewed the video of defendant’s interview at the Sheriff’s Department and surmised that the jurors had also taken notes on the transcripts while listening to the audio recording of the interview on the porch.
Section 1137 provides in relevant part that, “[u]pon retiring for deliberation, the jury may take with them... notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.” This section “implicitly approves of juror notetaking and contemplates that such notes will be used during deliberations.” (People v. Thompson (1988) 45 Cal.3d 86, 119.) Here, the jury was informed that the transcripts were being allowed into the deliberation room in order for the jurors to have access to the notes taken on the transcripts. The trial court also admonished the jury that the transcripts were not evidence, and that the evidence was the recordings themselves, which the jurors understood would be played for them upon request. We presume the jury followed the trial court’s instructions. (People v. Gonzales (2011) 52 Cal.4th 254, 292.)
Moreover, as defendant acknowledges, a transcript of a recorded statement may be taken into the jury deliberation room “in order to help [the jury] understand the recording while it [is] being played.” (People v. Beverly (1965) 233 Cal.App.2d 702, 718; People v. Fujita (1974) 43 Cal.App.3d 454, 473.) Thus, had the jury requested a playback of the recorded statements, this would not be an issue. But the fact that the jury did not request such a playback does not establish that the jury improperly used the transcripts as evidence. Again, the jury was instructed not to do so, and we must presume it followed this instruction.
We find no error in allowing the jury to bring their notes, taken on transcripts that were not evidence in the case, into the jury deliberation room.
DISPOSITION
The judgment is modified to strike defendant’s sentence of 25 years to life, which was imposed under Penal Code section 12022.53, subdivision (d). The judgment is further modified to impose and execute a sentence of 10 years for violation of Penal Code section 12022.53, subdivision (b). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modifications and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., ROBIE, J.