Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS072399A
ELIA, J.Defendant Pablo Mora was convicted of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and assault with a semiautomatic firearm (§ 245, subd. (b)) following a jury trial. At trial, the principal defense argument was that defendant had been knocked out by the victim Anthony Trujillo and he had lacked the intent to kill when he regained consciousness and fired his weapon. The jury found that the attempted murder was not willful, premeditated and deliberate. It found true the allegations that, in committing the attempted murder, defendant personally and intentionally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subd. (d)) and, in committing the assault, defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury upon Antonio Trujillo (§ 12022.7, subd. (a)). The court sentenced him to a lower term of five years on the attempted murder conviction (§ 664, subd. (a)) and stayed imposition of other terms.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues that the court incorrectly instructed regarding the legal standard for provocation, the prosecutor misstated the law, his defense counsel rendered ineffective assistance by failing to object to the prosecutor's argument, and the court also improperly admitted evidence of unrelated gun possession. We affirm.
A. Evidence
1. Prosecution's Evidence
On the night he was shot, Trujillo went with Christine Camacho, his friend's sister, to a party in Greenfield. Trujillo subsequently left that party and went with two of his brother's friends to a party in a mobile home on Cherry Avenue without Camacho. Camacho also separately went to that party on Cherry Avenue and saw Trujillo there. He did not seem drunk but "just buzzing." According to Trujillo, he had about one and a half 40-ounce beers that day. He could not recall telling Santa Clara doctors that he had three 40-ounce beers or an officer that he had two and a half 40-ounce beers. Camacho left the party to go pick up a friend.
Trujillo had been there 30 or 40 minutes when he stepped outside on the back porch to get some air after he had finished dancing. There were two males, whom Trujillo had never seen before, standing at the edge of porch close to the steps and they gave him a hard stare. One of the men was short, around five feet tall, and one was tall. According to Trujillo, he walked past them and around the corner to check for Camacho's car because he was ready to leave and wanted a ride. He turned around and was headed back inside.
As Trujillo, who is about six feet tall, passed the two men, the short man asked him where he was from. Trujillo thought it was a gang related question because he was in Greenfield and he was aware of problems between Greenfield and Soledad. Trujillo answered that he was from Soledad. The short man said "fuck Chole, " which is a gang word for Soledad, and shoved Trujillo. Trujillo, who was unarmed, punched the short man in the face with his right hand. The short man lost his balance and fell back. The taller man, who was about Trujillo's size or a little bit taller, then struck Trujillo on the side of the head with his fist. Punches were exchanged. Trujillo pushed the tall man out of the way. The short man rushed Trujillo and grabbed his left leg. Trujillo lost his balance and landed on his side at the base of the steps. The short man pulled out a gun and shot him multiple times as he was trying to get up. At some point during the incident, the short man said "Grinfas, " which is a gang term for Greenfield. Both men ran away.
One bullet entered Trujillo's right upper arm, exited the inner upper arm in the biceps area, and then lodged in his lower right abdomen. Another bullet struck the top of his left ear in a downward angle, traveled beneath the skin along the jaw line, penetrated mid-sternum, traveled just underneath the skin, and ended up in the lower abdomen. A third bullet struck Trujillo on his left flank, penetrated some tissue and traveled around but missed his vital organs.
The party ended when everyone heard gunshots and started running. Crystal Carmargo, the last to leave, went out the backdoor onto the porch, saw Trujillo on the ground at the base of the steps, and saw that he had been shot and was wounded. She called for an ambulance. No one else stayed. She pulled a bench over and helped Trujillo up onto it.
Monterey County Sheriff's Deputy Conan Hickey and his partner Deputy Karl Schumacher responded to a call regarding "shots fired" received at about 1:30 a.m. on July 21, 2007. Camacho, who had returned to Cherry Avenue after receiving a call that something had happened there, helped the officers find the party's location. Deputy Hickey saw evidence of a big party, a lot of beer cans and bottles littering the ground outside the trailer, and it looked like everyone had just scattered.
The sheriff's deputies found Trujillo, who was wounded, bleeding heavily, and very incoherent, on a bench near the back porch with a female. When asked what happened, Trujillo replied that he had been stabbed. Trujillo had actually been stabbed in 2005. Three spent.45 caliber bullet casings and two live, unfired rounds were found near each other. Nobody was in the mobile home.
Trujillo was transported to the Santa Clara Valley Medical Center. Dr. John Sherck, a trauma and general surgeon, became involved in treating Trujillo the next day. Three bullets already had been removed from his abdomen. The patient history reflected that Trujillo indicated he had drunk three 40-ounce beers. A drug screen was negative.
After being shot, Trujillo had trouble remembering what happened. In the hospital on July 21, 2007, detective Larry Bryant of Monterey County Sheriff's Office showed Trujillo, who was groggy, two separate photo lineups. Trujillo identified two males who had been at the Cherry Avenue party as his attackers. Neither man turned out to be a suspect. At trial, he could not remember telling deputies on his first day in the hospital that the shorter man had been wearing a red shirt and black pants.
Shaheen Jorgensen, a detective with the Monterey County Sheriff's Office, interviewed Camacho on July 22, 2007. Camacho told him that Trujillo might have been buzzed, but not drunk, when she saw him at the Cherry Avenue party.
Detective Jorgensen was assigned to the investigation of the shooting. When Detective Jorgensen and another detective spoke with Trujillo on the afternoon of July 23, 2007, Trujillo was experiencing a significant amount of pain. Trujillo's answers were vague at times and Trujillo said he was having trouble remembering things. He mentioned the "Grinfas" and "fuck Chole" remarks. He remembered fighting two males, throwing one man onto the ground, and punching the other man while trying to get away. He said he had tripped on a bench and fallen to the ground; as he was getting up, he heard a gunshot. At that time, he was sure that he had correctly identified the men in the photo lineups.
The detective subsequently interviewed Trujillo a number of times and Trujillo gave different facts. During some accounts, Trujillo said he pushed defendant and during others, he said he punched defendant. During a late July 2007 interview, Trujillo told the detective that he had consumed two and a half 40 ounce beers that night. He again mentioned the "Grinfas" and "fuck Chole" remarks. He also said two males approached him and the shorter man spoke to him and threw a punch, which he avoided. He never mentioned that the shorter man had shoved him. Trujillo said he hit the short man, who fell to the ground, and then he started fighting with the taller man. He said the shorter man grabbed his left leg and made him fall to the ground.
During a November 8, 2007 interview, he said he had been pushed to the ground by the taller man. He said that defendant was standing over him when the gunshots were fired.
Before August 9, 2007, a rumor that someone by the name of "Lil Paul" was the shooter and the individual had a "TLS" tattoo on the back of his head reached Detective Jorgensen. The detective was told that "Lil Paul" had a 45-caliber handgun with him.
On August 9, 2007, defendant was in a vehicle that was pulled over by Greenfield police. Defendant fled on foot but was apprehended. As he was being chased by police, defendant tossed two guns, a.44 Ruger revolver and a.45 semiautomatic handgun.
Detective Jorgensen interviewed defendant at the Greenfield Police Department. The detective estimated that defendant was about five feet, one inch tall and about 120 pounds. The recorded interview was played for the jury.
Defendant admitted to the detective that he lived in Greenfield and he was Lil Paul. He recalled that there were a few people from Soledad at the Cherry Avenue party. He thought he was probably wearing black pants, black shirt, and a red sweater. Defendant eventually admitted a fight broke out but he denied throwing the first punch. He repeatedly indicated that he had been hit and knocked unconscious. His buddy had picked him up. When he woke up, he pulled out his gun and shot three times at the victim, whom he did not know. Defendant said there was only one gun used in the shooting and the gunshots came from his.45 caliber gun. He was adamant that the revolver seized had nothing to do with the shooting.
Defendant repeatedly told the detective that when he woke up, he just "let it go" or "let it loose." He did not know if the shooting happened because he was knocked out and did not know what was going on. He said, "That knocking me out thing is what fucked me up." He stated a number of times that he did not even know the victim. He said, "I don't know if there was my emotions, my actions, or imagine of me to be knocked out, and not getting up, and not knowing...." He supposed the shooting was "about anger or something you know, " "[j]ust I think me getting hit." He said he could not remember how he got hit. After the shooting, he ran home.
The three shell casings recovered from Cherry Avenue address on July 21, 2007 were compared to defendant's.45 semiautomatic handgun seized on August 9, 2007. It was determined that the gun expelled those three recovered casings.
Semiautomatic handguns have problems if they are not cleaned and maintained properly or if they are not being held properly. Someone who is rushed and firing without any training is more likely to jam a gun than a trained person. A jam can occur in a semiautomatic firearm if the gun is not held firmly and if that happens, the shooter will have to manually pull back the slide to eject the jammed cartridge. In addition, if the slide is pulled back when a round is already in the chamber, a live round is ejected onto the ground.
2. Defense Evidence
Dr. Light, a clinical and rehabilitation neuropsychologist, testified regarding head injury. His research focused on the long term consequences of head injury. He described three types of head injury, including blunt force injury, which can occur with a blow or a punch.
Dr. Light explained that symptoms after a concussion include dizziness, nausea, vomiting, tinnitus, sensitivity to sound, headache, irritability, and sleep problems. A minor head injury typically is a blow to the head with concussive symptoms and no loss of consciousness. Mild head injury typically involves some loss of consciousness, approximately five to 20 minutes, with the same post-concussive symptoms. But a person may suffer a mild traumatic head injury and a concussion even if they are not knocked unconscious by a blow to the head. A person knocked out for at least 30 seconds will have similar but more widespread and severe symptoms.
A person knocked unconscious for a second or two usually would realize there was a gap because the person infers from the confused post-concussive state that there was a loss of consciousness. But if a person loses consciousness from head injury, the person's self report of the duration of unconsciousness is totally unreliable.
The severity of head injury is graded on the depth and duration of unconsciousness after the blow. Post-traumatic amnesia (PTA) is the period during which the person with head injury is not learning new information and is not oriented. PTA is usually four times the length of time that the person was unconscious. The more quickly a person struck in the head begins to have clear memories, the less severe the head injury.
A mild head injury and concussion may result in cognitive problems related to memory, learning, and higher level executive function, which includes planning, organization, and decision-making. A person suffering a traumatic head injury and a loss of consciousness of 30 seconds in duration would experience PTA for some period of time and then partial recall as the person emerged from PTA. The injury would impact the person's memory, speed of thinking and processing time, decision-making, threat analysis, intellectual functioning, including sensation and perception, and focus.
A blow to the head impacts decision-making in four different ways: (1) it can affect the processing of sensory input, which can result in vision and auditory acuity problems; (2) it can affect abstraction, which is non-concrete problem solving; (3) it can affect the resulting motor output; and (4) it can trigger the primitive flight or fight reaction caused by the release of adrenaline. Threat analysis, impulse behavior suppression, and weighing consequences are all executive, higher level cognitive processes. A concussed state can result in deficits in these areas and affect perception of threat.
Dr. Light met with defendant. He administered a neuropsychological screening evaluation on November 7, 2008. He determined that defendant likely had a learning disorder because the test results were consistent with dyslexia and possibly some language issues. He testified that a head injury can exacerbate preexisting learning disabilities. But defendant's concussive symptoms were not related to the learning disability.
Dr. Light viewed the DVD recording of defendant's interview with Detective Jorgensen. The fact that defendant only knew that he was knocked out but could not describe the blow was consistent with retrograde amnesia and suggestive of a concussion. It is very common to not remember being knocked out and to have a period of time that is missing. Dr. Light found it "very striking and very important" that defendant, instead of saying I don't remember anything, was struggling to understand what had happened but he could not explain it, which was more classic of a concussed state. Defendant's statements in the interview indicating he was trying to come "to grips with what happened and why it happened, that's not me" was "classic for someone who's had a concussion...."
Defendant's recall of the three gunshots was not inconsistent with a concussed state because someone in a concussed state would more easily recall gunshots because they are loud and the brain tags them with an emotional marker. While a blow to the head resulting in a concussed state would impact decision-making, the injured person may still be able to engage in quite high-level physical activities or actions. For example, a football quarterback with traumatic brain injury might perform well and win the game but have no memory of actually playing. The football player might not have intact cognition.
But Dr. Light conceded that defendant's actions after being knocked out might be consistent with rage. He agreed they could also be consistent with waking up to a fight and reacting without thinking.
Dr. Light agreed that it may be very difficult to attribute symptoms and behavior to mild head injury if someone is also drunk or acting on adrenaline or emotionally responding to a traumatic event. He acknowledged that a shooter, who potentially killed someone and could not deal with his situation, might block out memories and this was called psychogenic denial or amnesia. Dr. Light acknowledged that a person punched in the ear could experience ringing in the ear or loss of balance without any brain damage. He agreed the memory of an event should not come and go because that was not typical brain physiology. Partial retrograde amnesia, however, is consistent with a head trauma. Dr. Light was familiar with cases of feigned memory loss where someone did not want to admit something.
Deputy Hickey testified that, on July 21, 2007, he spoke with Camacho at the scene of the crime. She told the deputy that she had driven Trujillo to a different party and had left him there. She indicated that Trujillo appeared intoxicated when she saw him at the Cherry Avenue party. The deputy stated that the casings and the unexpended bullets were found within a two to three foot radius and within two and a half to three and a half feet of the bottom porch step.
Defendant's older sister testified that she first saw defendant's purple and red left eye on a Sunday morning a couple weeks before his arrest. His mother, with whom he lived, testified that she noticed his left eye was black and the inside was red on Saturday July 21, 2007. Two coworkers at Della Mora Plumbing noticed defendant's black eye a couple of weeks before defendant's arrest.
Sylvia Bustos, who lived in a mobile home on Cherry Avenue outside Greenfield, threw a party on Friday July 20, 2007. Late in the evening, she heard a loud noise and then saw a lot of people running. After the noise, everybody ran outside. As she went out past the porch, she did not pay any attention to whether anyone was injured and just ran. She did not call 9-1-1. Bustos did not invite defendant to the party but she was sure he had been invited by a friend.
B. Heat of Passion Form of Voluntary Manslaughter
"Although section 192, subdivision (a), refers to 'sudden quarrel or heat of passion, ' the factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim (see In re Thomas C. (1986) 183 Cal.App.3d 786, 798...), or be conduct reasonably believed by the defendant to have been engaged in by the victim. (See People v. Brooks (1986) 185 Cal.App.3d 687, 694...; see also 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes Against the Person, § 512, p. 579.) The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Berry (1976) 18 Cal.3d 509, 515...; People v. Valentine (1946) 28 Cal.2d 121, 138-139....) 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' (People v. Barton, supra, 12 Cal.4th at p. 201.)" (People v. Lee (1999) 20 Cal.4th 47, 59.)
"Thus, '[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. (People v. Wickersham (1982) 32 Cal.3d 307, 326-327....)' " (People v. Manriquez (2005) 37 Cal.4th 547, 584.) "To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. (Wickersham, supra, 32 Cal.3d at p. 327.)" (People v. Moye (2009) 47 Cal.4th 537, 550.) " ' "To satisfy the objectiveor 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " (People v. Wickersham, supra, 32 Cal.3d at p. 326.)' (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144....)" (People v. Moye, supra, 47 Cal.4th at p. 549.)
A defendant lacks malice when the defendant acts in the heat of passion. (People v. Blakeley (2000) 23 Cal.4th 82, 87-88; see People v. Rios (2000) 23 Cal.4th 450, 454, 461-462.)
C. Instruction on Provocation
The trial court instructed the jury in accordance with the standard instruction on attempted voluntary manslaughter: "An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion. [¶] The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person; [¶] 2. The defendant intended to kill that person; [¶] 3. The defendant attempted the killing because [he] was provoked; [¶] 4. The provocation would have caused a person of average disposition to act rashly and without due deliberation; that is, from passion rather than judgment; and [¶] 5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment." (See CALCRIM No. 603 (2009 ed.) p. 420.) As to the sufficiency of the provocation, the court instructed: "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." (Italics added.) (See id. at pp. 420-421.)
Appellant argues that the italicized language constituted an incorrect and misleading definition of provocation. He points out that the standard instruction on voluntary manslaughter, as revised in December 2008, states with regard to the sufficiency of the provocation: "It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment." (CALCRIM No. 570 (2009 ed.) pp. 353-354, italics added.)
While the italicized wording in the voluntary manslaughter instruction may be better than the italicized wording in the attempted voluntary manslaughter instruction in the sense that it reminds jurors that they are deciding whether a person of average disposition would have reacted from passion rather than judgment, the attempted voluntary manslaughter instruction given in this case was not incorrect or misleading. The instruction given makes clear, in context of the instruction as a whole, that the jurors must decide with regard to the sufficiency of the provocation whether the evidence is sufficient to prove that "the provocation would have caused a person of average disposition to act rashly and without due deliberation; that is, from passion rather than judgment...." Further, the court specifically instructed the jury to "[p]ay careful attention to all of these instructions and consider them together." Nothing in the instruction suggests that the heat of passion form of voluntary manslaughter is limited to the circumstances where a reasonable person "would react in a violent manner and attempt to kill" as claimed by defendant.
Defendant asserts that, if even if the instruction was not patently incorrect, it was ambiguous and the prosecutor's argument would have led the jury to misunderstand the legal standard for provocation sufficient to support voluntary manslaughter. He points to a number of remarks made by the prosecutor during argument that state a normal person would not be provoked into killing or acting violently if punched and the prosecutor's statement indicating attempted voluntary manslaughter requires that "a normal person would be provoked into violence under the same circumstances." The prosecutor also told the jury with respect to the provocation requirement: "We're saying just a normal, every day [sic] citizen, who got punched like that, would fly into a rage or fly into whatever heightened emotional state. And that's where it fails."
In People v. Najera (2006) 138 Cal.App.4th 212, which is cited by defendant, the reviewing court concluded the defendant was not entitled to a voluntary manslaughter instruction and, consequently, did not reach his contention that the standard instruction explaining sudden quarrel or heat of passion was ambiguous. (Id. at pp. 215, 226.) The appellate court in Najera did determine that the prosecutor had misstated the legal standard of provocation by arguing that the law required a reasonable person to have killed under the circumstances. (Id. at p. 223.)
Defense counsel in closing argument read the instruction regarding attempted voluntary manslaughter to the jury because, as he told the jury, the prosecutor's "ad-libbing of the law in that regard requires me to do this because it's wrong and confusing."
"When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 777.) Even if some of the prosecutor's comments in this case misapplied or misstated the legal standard of provocation, the jury was told: "You must follow the law as I explain it to you, even if you disagree with it. If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions." "We presume that jurors understand and follow the court's instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17....)" (People v. Gray (2005) 37 Cal.4th 168, 231.) It is not reasonably likely that the jury in this case misunderstood or misapplied the challenged instruction to mean that the heat of passion form of attempted voluntary manslaughter required that "a person of average disposition" or a normal or reasonable person would have been so provoked as to kill or act violently.
D. Alleged Prosecutorial Misconduct
"Although counsel have broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law [citation]...." (People v. Bell (1989) 49 Cal.3d 502, 538.) Insofar as defendant contends that portions of the prosecutor's argument misstated the legal standard of provocation and asserts that these remarks violated his rights under the Sixth and Fourteenth Amendments, we find these claims waived. (See People v. Kipp (2001) 26 Cal.4th 1100, 1130.) " 'To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.' (People v. Brown, supra, 31 Cal.4th at p. 553.) There are two exceptions to this forfeiture: (1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct.... A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. (People v. Boyette, supra, 29 Cal.4th at p. 432.)" (People v. Panah (2005) 35 Cal.4th 395, 462.) No exception applies here. (Cf. People v. Najera, supra, 138 Cal.App.4th at p. 224.)
Defendant also asserts that the prosecutor misstated the law by arguing in closing that defendant did not act in the heat of passion if defendant "picked the fight" or "attacked first" or "started it." He argues that the prosecutor's argument confused the laws of self-defense and heat of passion.
"It is well established that the ordinary self-defense doctrine -- applicable when a defendant reasonably believes that his safety is endangered -- may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances." (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
Again, this claim of prosecutorial misconduct was not preserved for review on appeal because defense counsel did not object. (People v. Dykes (2009) 46 Cal.4th 731, 773.) The record does not show that the failure to object and request an admonition was excused.
In any event, the prosecutor's challenged remarks regarding the initiation of provocation were not misstatements of law. The California Supreme Court has stated: " '[T]he victim must taunt the defendant or otherwise initiate the provocation.' [Citations.]" (People v. Avila (2009) 46 Cal.4th 680, 705; see People v. Verdugo (2010) 50 Cal.4th 263, 293.) Appellate courts have recognized that a "claim of provocation cannot be based on events for which the defendant is culpably responsible" (People v. Oropeza (2007) 151 Cal.App.4th 73, 83) and a killer who provokes a fight cannot assert provocation by the victim (People v. Johnston (2003) 113 Cal.App.4th 1299, 1312-1314). (Cf. People v. Jackson (1980) 28 Cal.3d 264, 306, plur. opn. [predictable conduct by an awakening burglary victim who resists does not constitute the kind of provocation sufficient to reduce a murder charge to voluntary manslaughter], overruled on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901.)
In People v. Johnston, supra, 113 Cal.App.4th 1299, an appellate court queried whether a person who provokes a fight could claim provocation. (Id. at p. 1312.) The court concluded that the answer was no, stating, "We may assume that defendant did not travel to his ex-girlfriend's residence for the purpose of committing a homicide, even though he armed himself with a knife before going there. But it was he who instigated the fight with [her older brother] Anthony by creating a loud disturbance at the residence, cursing the mother of the victim and girlfriend and, most particularly, challenging Anthony to come out and fight. Having done that, he cannot be heard to assert that he was provoked when Anthony took him up on the challenge. Defendant was 'culpably responsible' for the altercation." (Id. at p. 1313.) Treatises on substantive criminal law are in accord with this analysis. (See 2 Wharton's Crim. Law (15th ed. 1994) § 157, p. 352 ["If the defendant causes the victim to commit an act which the defendant could claim provoked him, he cannot kill the victim and claim he was provoked. Thus, a defendant is guilty of murder when he arms himself and plans to insult the victim and then kills him if the victim strikes him in resentment over the insult. [Fn. omitted.]"]; 2 LaFave, Substantive Criminal Law (2d ed. 2003) p. 496 ["[A] violent, painful blow, with fist or weapon, ordinarily will [constitute a reasonable provocation]. [Fn. omitted.] Even in the case where the defendant kills in response to a violent blow, however, he may not have his homicide reduced to voluntary manslaughter if he himself by his own prior conduct (as by vigorously starting the fracas) was responsible for that violent blow. [Fn. omitted.]"].)
The Supreme Court in People v. Barton (1995) 12 Cal.4th 186 did not hold, as asserted by defendant, that an instruction on voluntary manslaughter was appropriate even where the defendant was the aggressor in a confrontation. In Barton, the Supreme Court determined that the record contained substantial evidence from which the jury could reasonably find that defendant intentionally killed the victim in a sudden quarrel or heat of passion. (Id. at p. 202.) The court pointed to defendant's testimony that, shortly before the killing, his daughter "had come to him, extremely upset, and told him that a man (later identified as victim Sanchez) had threatened her with serious injury by trying to run her car off the road, and that he had spat on the window of her car" and evidence that "[w]hen defendant and his daughter confronted Sanchez about his conduct, Sanchez called defendant's daughter a 'bitch' and he acted as if he was 'berserk.' " (Ibid.) The defendant's angry confrontation with the victim ended with the fatal shooting. (Ibid.) It appears that in Barton there apparently was sufficient evidence of provoking conduct reasonably believed by the defendant to have been engaged in by the victim. (See People v. Moye, supra, 47 Cal.4th at p. 550; see also People v. Brooks (1986) 185 Cal.App.3d 687, 693-694 [provocation was sufficient where the defendant shot the man whom he had heard fatally stabbed his brother just two hours earlier].)
Under the circumstances of this case, the prosecutor could properly argue there was no legally sufficient provocation by victim Trujillo since there was evidence that defendant had started the fight.
The record does not establish that the alleged prosecutorial misconduct resulted in a denial of due process. (See People v. Thompson (2010) 49 Cal.4th 79, 120; see Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464].)
E. Alleged Ineffective Assistance of Counsel
Defendant further asserts that his defense counsel rendered ineffective assistance by failing to object to the prosecutor's remarks suggesting defendant could not have acted in the heat of passion because he was the initial aggressor. "The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (Strickland).) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)" (People v. Stanley (2006) 39 Cal.4th 913, 954.)
As discussed, we do not find these challenged remarks to be improper. In addition, the court told the jury that it was required to decide whether defendant was provoked and whether the provocation was sufficient and did not state any rigid rule precluding the jury from considering the issue. It also instructed the jury to disregard any attorney comments conflicting with its instructions: We presume the jury followed these instructions. (Cf. People v. Hamilton (2009) 45 Cal.4th 863, 957.) Defendant failed to establish either prong of his ineffective assistance claim.
F. Evidence of Second Gun
Before trial, defense counsel sought to exclude evidence of the second gun seized when defendant was stopped by police on the ground that it had nothing to do with the shooting and the evidence would be prejudicial because the jury might treat it as character evidence and infer that defendant had a propensity for violence. The prosecution suggested evidence of the second gun seized was relevant because defendant made an incriminatory statement that he had the only gun during the incident while he was discussing the second gun with an officer and that statement would be relevant if defendant's companion testified, as anticipated, that the victim had a gun and defendant shot the victim to save the companion from being shot. In addition, the prosecuting attorney contended that consciousness of guilt was shown by evidence that defendant ditched both guns while running from police. The prosecuting attorney also maintained that any prejudice was "miniscule" given that defendant already admitted shooting the victim three times with a gun. The court concluded that the evidence of the second gun was relevant because it was part of factual circumstances surrounding defendant's apprehension and his statements to police and the evidence was not significantly prejudicial.
Defendant now contends that the trial court erred by admitting evidence of the second gun because it was irrelevant and inflammatory and insists that his convictions must be reversed because admission of the evidence denied him a fair trial in violation of his due process rights under the Fourteenth Amendment to the federal Constitution. He interposed no constitutional objection below. Consequently, defendant's constitutional claim is cognizable on appeal only insofar as he is arguing that any error in admitting the challenged evidence had the additional legal consequence of depriving him of due process. (People v. Partida (2005) 37 Cal.4th 428, 435-436; see Evid. Code, § 353.)
The evidence of the second gun fell within the bounds of "relevant evidence, " that is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Evid. Code, § 210), since evidence of the guns being ditched was part of the evidence of his conduct indicating a consciousness of guilt and the in-custody discussion regarding the second gun was the context for his statement indicating that there was only one gun during the shooting and he had it. Since defendant had admitted the.45 caliber gun was his and he had done the shooting, the court could reasonably conclude that the probative value of the evidence of the second gun outweighed any undue prejudice. (See Evid. Code, § 352.)
"A trial court's exercise of discretion in admitting or rejecting evidence pursuant to Evidence Code section 352 'will not be disturbed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice.' (People v. Milner (1988) 45 Cal.3d 227, 239....)" (People v. Cain (1995) 10 Cal.4th 1, 33.) We discern no manifest abuse of discretion. Our rejection of the evidentiary claims disposes of the constitutional claim. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Cain, supra, 10 Cal.4th 1, 33.)
Defendant argues for the first time that the evidence of the second gun was inadmissible character evidence (see Evid. Code, § 1101, subd. (a)) and its admission violated due process. Defendant forfeited these issues by failing to make a timely objection on this ground below. (Evid. Code, § 353, subd. (a).)
Of course, defense counsel was free to request a limiting instruction at trial to avoid any possible misuse of the evidence as character evidence if concerned. (See Evid. Code, § 355.)
The judgment is affirmed.
WE CONCUR: PREMO, Acting P. J., McADAMS, J.