Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA307517 George G. Lomeli, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Jose A. Rivera (appellant) appeals from the judgment entered following a jury trial resulting in his convictions for first degree murder with a finding that appellant used a deadly and dangerous weapon, a knife (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1)) and attempted willful, deliberate and premeditated murder with findings that he used a deadly and dangerous weapon, a knife, and that he personally inflicted great bodily injury (§§ 664, 187, subd. (a), 12022, subd. (b)(1), 12022.7, subd. (a)). At sentencing the trial court imposed two consecutive indeterminate terms in state prison of life and 25 years to life, as well as determinate terms totaling five years.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury was unable to agree as to guilt during the initial trial, and appellant was convicted upon retrial.
He contends that: (1) the evidence is insufficient to support the verdict of first degree deliberate and premeditated murder and the finding of deliberation and premeditation with respect to his conviction of attempted murder; (2) the instructions on voluntary manslaughter created an impermissible burden shifting presumption in favor of murder; (3) CALCRIM No. 220’s definition of reasonable doubt is unconstitutional; (4) CALCRIM No. 226 is unconstitutional as it invites the jurors to consider matters outside the record; (5) the prosecutor engaged in misconduct; (6) cumulative error requires a reversal; (7) the trial court denied appellant his Sixth Amendment right to a jury trial on the aggravating factors used to impose consecutive terms of punishment; and (8) the abstract of judgment fails to reflect the trial court’s restitution orders.
We affirm the judgment.
FACTS
In 2006, Ramon Flores (Flores) and his wife Imelda Munoz (Munoz) lived in a Los Angeles apartment with Munoz’s brother and his family. On August 13, 2006, Munoz’s nephew was baptized. In the evening, a number of neighbors gathered to celebrate the baptism in the complex’s parking lot. At 10:00 p.m. approximately seven of the partygoers remained, including appellant, who lived upstairs, Flores and Munoz, and Flores’s friend Hector Valero (Valero) and his wife, Kenia Valero (Kenia). Everyone was seated around a table, and the men had been drinking beer.
Flores was admittedly drunk. At one point, Flores began to deliberately needle appellant by telling appellant that he (Flores) liked appellant’s wife. Appellant became angry and pushed and punched Flores. The men fought. During the fight, Flores picked up a beer bottle, but Munoz grabbed it out of his hand. When appellant appeared to have gotten the best of Flores and was punching Flores as Flores lay on the ground, Valero used a chair to hit appellant. At that point, everyone attempted to separate the men.
Appellant’s wife came downstairs and took appellant upstairs. As appellant departed, the combatants cussed at one another. Appellant threatened that Flores and Valero would “pay for this.”
Soon thereafter, appellant started to return downstairs. His wife stopped him, and Flores and Valero grabbed beer bottles off the table and held them as if they were weapons. Everyone sat down again, and Munoz and Kenia asked their husbands to leave. Flores and Valero refused. Munoz cleared the table of beer bottles.
The record is in conflict with respect to whether Flores had a beer bottle in his hand during the initial confrontation and whether there were one or two confrontations before appellant came downstairs and stabbed his victims.
Ten to fifteen minutes later, appellant flipped open a knife at the top of the stairs. He rushed downstairs and quickly stabbed Valero. He then ran at Flores while Flores retreated and stabbed Flores. Kenia testified that Valero swung a chair at appellant when appellant rushed at him. Flores testified that when appellant hit him, he picked up a chair to defend himself and used it to hit appellant. Appellant’s wife ran downstairs, took the knife from appellant’s hand, and threw it down. She took appellant upstairs.
Valero walked into Flores’s apartment. He was bleeding profusely, and the paramedics were called. Valero’s stabbing proved to be fatal as one knife wound had penetrated his heart. Valero also had two serious wounds to his abdomen and a wound in one arm. After appellant struck Flores, Flores suddenly discovered that he had been stabbed in the upper chest, in the chest under his arm, in the abdomen, and in the leg.
Appellant declined to testify and did not present witnesses in defense. The parties stipulated to a photograph that depicted appellant’s appearance upon his arrest. The photograph apparently showed that appellant’s head was “split open,” the laceration had been “stapled back together,” and he had suffered additional injuries.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends that the evidence of deliberation and premeditation is insufficient to support his convictions for murder and attempted willful, deliberate, and premeditated murder.
The contention lacks merit.
A. The Relevant Legal Principles
The standard of review was recently summarized in the decision in People v. Jurado (2006) 38 Cal.4th 72 (Jurado): “‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (Jurado, supra, at p. 118.)
“A murder that is premeditated and deliberate is murder of the first degree. (§ 189.) ‘In this context, “premeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.”’ [Citation.] ‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.’ [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing.... [Citations.]” (Jurado, supra, 38 Cal.4th at pp. 118–119.)
Such evidence need not be present in some special combination or be accorded a particular weight, nor is the list exhaustive. (People v. Pride (1992) 3 Cal.4th 195, 247; People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) Rather, such factors serve as an aid to assess whether the killing or attempted killing was the result of preexisting reflection. (People v. Perez, supra, at p. 1125.)
“A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” [Citations.]’ [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
The principles that demonstrate willful, deliberate, and premeditated murder similarly apply to the finding of deliberation and premeditation that requires enhanced punishment for attempted murder. (People v. Bright (1996) 12 Cal.4th 652, 656; overruled on another point in People v. Izaguirre (2007) 42 Cal.4th 126, 132–134; People v. Garcia, supra, 78 Cal.App.4th at pp. 1427–1428.)
B. The Analysis
Appellant argues that the evidence is insufficient to demonstrate the planning and reflection necessary to prove premeditation and deliberation. However, the evidence overwhelmingly shows deliberation and premeditation. After the initial melee, appellant threatened that Flores and Valero would pay for provoking and fighting with him. Shortly thereafter, he followed through with his threat by returning downstairs with a knife and attempting to fatally stab Flores and Valero in the same vital parts of their bodies. (People v. Manriquez (2005) 37 Cal.4th 547, 577–579 [evidence that the defendant had a verbal argument with the victim, there was a lapse of time, and the defendant approached the victim and shot him in vital parts of the body is sufficient to show deliberation and premeditation]; People v. Steele (2002) 27 Cal.4th 1230, 1250 [concerning planning, defendant carried the fatal knife into the victim’s home in his pocket, which makes it “‘reasonable to infer that he considered the possibility of homicide from the outset’”]; People v. Hyde (1985) 166 Cal.App.3d 463, 478 [exacting revenge is a sufficient motive to support a finding of premeditation and deliberation].)
The above evidence was sufficient to support the jury’s finding of deliberation and premeditation.
II. Jury Instructions on Voluntary Manslaughter and Attempted Voluntary Manslaughter
Appellant contends that the instructions on lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter created an impermissible burden-shifting presumption in favor of the greater offenses that violates due process.
Specifically, he argues that the pattern CALCRIM instructions Nos. 522, 570, 571, 603, and 604 lightened the prosecution’s burden of proof by creating an impermissible inference in favor of the prosecution on the pivotal issue of whether appellant’s mental state satisfied the requirements for murder and attempted murder. He urges that the instructions likely had the effect of setting an order of deliberations for the jury such that if they were to presume the crimes were murder and attempted murder unless convinced otherwise, the logical starting point for their deliberations was on the question of whether this was a case of murder and attempted murder. He asserts that such an extrinsic ordering of deliberations is constitutionally impermissible.
We disagree.
A. Background
The trial court charged the jury as to reasonable doubt and as to the elements of murder and attempted murder. It also charged the jury as to voluntary manslaughter and attempted voluntary manslaughter with CALCRIM Nos. 522, 570, 571, 603, and 604.
It informed the jury in CALCRIM No. 522, as follows: “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 that 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.”
In CALCRIM No. 570, the trial court charged in pertinent part: “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....” In that instruction, the trial court also said: “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.”
In CALCRIM No. 571, the jury was told: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense.” In CALCRIM No. 603, the court said: “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....” In CALCRIM No. 604, the court charged the jury that “[a]n attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense.”
B. The Relevant Legal Principles
Jury instructions that relieve the prosecution of the burden of proving each element of the charged offense beyond a reasonable doubt violate a defendant’s due process rights under the United States and California Constitutions. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278; Carella v. California (1989) 491 U.S. 263, 265, (per curiam); People v. Flood (1998) 18 Cal.4th 470, 480–481, 491.) Such erroneous instructions also violate United States and California constitutional principles requiring all material issues be decided by the trier-of-fact. (Carella v. California, supra, at p. 265; People v. Flood, supra, at pp. 481, 491.) While the trial court may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, under no circumstances may the court direct a verdict for the prosecution. (Sullivan v. Louisiana, supra, at p. 277; People v. Kobrin (1995) 11 Cal.4th 416, 423.) Furthermore, the “prohibition against directed verdicts for the prosecution extends to instructions that effectively prevent the jury from finding that the prosecution failed to prove a particular element of the crime beyond a reasonable doubt. [Citation.]” (People v. Flood, supra, at p. 491.)
The decisions in Sullivan v. Louisiana and Carella v. California have been overruled on the unrelated issue of what constitutes structural error. (See Hedgepeth v. Pulido (2008) ___ U.S. ___ [129 S.Ct. 530, 532].)
C. The Analysis
Appellant makes no claim that the jury instructions omitted an element of the crime. His claim is one of misleading or ambiguous jury instructions. When we review such a contention, the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. (People v. Smithey (1999) 20 Cal.4th 936, 963.) Jury instructions are not considered in isolation, but rather in the context of the entire charge and the arguments of the parties. (People v. Young (2005) 34 Cal.4th 1149, 1202; Smithey, supra, at pp. 963–964; People v. Holt (1997) 15 Cal.4th 619, 677.)
As a preliminary matter, appellant made no request in the trial court for a clarifying instruction. It is settled that in these circumstances, when a defendant fails to request such an instruction, his contention is forfeited. (People v. Young, supra, 34 Cal.4th at pp. 1202–1203.)
Despite the forfeiture, we address the contention on its merits. There is no reasonable likelihood that the jury would have applied the trial court’s instructions unconstitutionally. The trial court charged the jury generally on the burden of the prosecution to prove each charge beyond a reasonable doubt. In that instruction, it informed the jury that “[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” Also, at the end of each instruction concerning the elements of the greater and lesser offenses, the instructions contained a pinpoint instruction on reasonable doubt. These pinpoint instructions left no room for ambiguity as to the prosecution’s burden of proof in the instant murder case. Also, the trial court gave the jury a specific instruction that it was up to the jury to decide on the order of deliberation. In the same instruction, it directed the jury that when it filled out the verdict forms, it should proceed in the order of the greatest offense to that of the lesser offenses. And again, in giving the instruction, the trial court told the jury at each step that the prosecution bore the burden of proof.
Thus, when the jury instructions are considered as a whole, there is no misleading language or ambiguity requiring a reversal.
III. CALCRIM No. 220
Appellant contends that CALCRIM No. 220 improperly defines reasonable doubt and is unconstitutional.
The contention lacks merit.
A. Background
The trial court charged the jury with CALCRIM No. 220, concerning reasonable doubt, as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
In CALCRIM No. 222, the trial court informed the jury in pertinent part that “‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”
B. The Relevant Legal Principles
“The due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 361–362 & cases cited therein.) The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) When reviewing the correctness of reasonable doubt charges, the proper constitutional inquiry is ‘whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.’ (Id. at p. 6.) [¶] ‘“The essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings.” [Citation.] Where such an error exists, it is considered structural and thus is not subject to harmless error review. [Citation.] However, if a jury instruction is deemed “ambiguous,” it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. [Citation.] Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. [Citation.]’ [Citations.]” (People v. Flores (2007) 153 Cal.App.4th 1088, 1092–1093.)
C. The Analysis
Appellant makes two claims in this contention. He argues that the directions in CALCRIM No. 220, especially when considered in conjunction with the definition of evidence in CALCRIM No. 222, precludes the jury from considering whether a reasonable doubt exists based on a lack of evidence; and (2) CALCRIM No. 220’s direction to “impartially compare and consider all the evidence” undermines the presumption of innocence and lightens the prosecution’s burden to prove guilt beyond a reasonable doubt.
As appellant acknowledges, the Courts of Appeal in every appellate district have rejected the same or similar challenges to CALCRIM No. 220. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1118–1119; People v. Stone (2008) 160 Cal.App.4th 323, 332; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; People v. Campos (2007) 156 Cal.App.4th 1228, 1239 (Campos) [and cases cited therein]; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268–1269; People v. Flores, supra, 153 Cal.App.4th at pp. 1092–1093, People v. Westbrooks (2007) 151 Cal App 4th 1500, 1509–1510; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154.)
We see no reason to depart from the conclusions expressed in these cases. Furthermore, appellant forfeited the contention as he failed to ask the trial court to clarify the language he complains of in CALCRIM No. 220. (People v. Young, supra, 34 Cal.4th at pp. 1202–1203.)
IV. CALCRIM No. 226
Appellant contends that charging the jury with CALCRIM No. 226, concerning the credibility of witnesses, violated his right to due process and to the confrontation of witnesses.
We disagree.
A. Background
The trial court charged the jury with CALCRIM No. 226, in part, as follows: “You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.” (Italics added.)
B. The Relevant Legal Principles
The jury’s verdict must be based upon the evidence developed at the trial. (See People v. Nesler (1997) 16 Cal.4th 561, 578)
Again, “[i]n determining the correctness of jury instructions, we consider the instructions as a whole. [Citation.] An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words.” (Campos, supra, 156 Cal.App.4th at p. 1237.)
C. The Analysis
Appellant argues that CALCRIM No. 226 is “troubling” because the “‘common sense and experience’” language encourages jurors to consider matters not in evidence. He asserts that the italicized language in the instruction creates “a genuine danger that th[e] instruction will cause jurors (1) to rely on extrajudicial evidence and/or (2) to employ a standard less than proof beyond a reasonable doubt since ‘common sense’ can be used as a substitute for objective (and substantial) evidence of guilt.”
The court in Campos, supra, 156 Cal.App.4th 1228, addressed this very issue. That court said: “To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror’s background, experience and reasoning must necessarily provide the backdrop for the juror’s decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience.” (Campos, supra, at p. 1240.) We agree with the court’s analysis in Campos.
Moreover, here, the jurors were instructed that they must decide the facts based on the evidence presented (CALCRIM No. 200), and that they were not to conduct research or investigate the crime (CALCRIM No. 201). The trial court told the jurors that their determination of guilt had to be based on evidence received at trial (CALCRIM No. 220), that they were only to consider evidence (sworn testimony and exhibits) presented in the courtroom (CALCRIM No. 222), and that they had to decide whether the facts have been proved based on “all the evidence” (CALCRIM No. 223). It informed the jury that it should review all the evidence before concluding that the testimony of one witness proves a fact (CALCRIM No. 301) and with other instructions emphasizing the exclusive significance of the evidence (CALCRIM No. 302). With these instructions, the jurors would have been well aware that the term “‘common sense and experience’” was not a license to consider matters outside of the evidence. (Campos, supra, 156 Cal.App.4th at p. 1240.)
Unlike the decision in People v. Bickerstaff (1920) 46 Cal.App. 764, 773, and People v. Paulsell (1896) 115 Cal. 6, 7, cited by appellant, CALCRIM No. 226 does not instruct jurors to use their common sense and experience in applying the standard of reasonable doubt, which could potentially conflict with the beyond-a-reasonable-doubt standard. It only asks the jurors to use their common sense and experience in assessing witness credibility. (See Campos, supra, 156 Cal.App.4th at p. 1240.)
V. Prosecutorial Misconduct
Appellant raises two contentions of prosecutorial misconduct. He asserts that during final argument: (1) the prosecutor made misleading remarks to the jury about the law concerning provocation and heat of passion; and (2) the prosecutor made misleading remarks to the jury about the law concerning deliberation and premeditation.
A. Background
In arguing the case to the jury, the prosecutor commented on several relevant legal principles set out by the trial court in the jury instructions.
The prosecutor told the jury that premeditation and deliberation are required for a verdict of first degree murder. He gave an example to the jury concerning “how quickly one can get to premeditation and deliberation.” The prosecutor explained that “[w]e all make everyday decisions when we drive.” At stop signs and railroad crossings, drivers look to the left and right and make a decision about whether it is safe to go forward. “That split second that you looked to the left and to the right, you did what’s called deliberation, it’s safe to enter, and premeditation, you weighed whether it’s safe to enter. That’s how quickly, ladies and gentlemen, you can get to first degree murder, snap-snap (indicating). If you believe that an individual thought about it, considered it, that’s first degree.”
He commented on the requirements for heat of passion. He read to the jury the three enumerated elements in CALCRIM No. 570 that demonstrate sudden quarrel or heat of passion that reduces murder to manslaughter. He said, “[a]s a result of that provocation, defendant acted rashly and under the influence of intense emotion that obscured his reasoning,” and “That provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” He emphasized that provocation is not determined from “the subjective view of the defendant, [but] from the objective view of like circumstances, ‘objective’ meaning the reasonable person standard.”
The prosecutor then made the following remarks: “Ladies and Gentlemen, you are the reasonable person standard. If you believe that a reasonable person, after being told by an individual, ‘Hey, I like your wife, you like my wife,’ a fight ensues, 20 minutes later, you go upstairs—if a reasonable person would go back upstairs, 20 minutes later grab a knife, come down and start stabbing two individuals, if you believe that a reasonable person would do that, there you have it Ladies and Gentleman, you have voluntary manslaughter, not murder.” He informed the jurors that they were “the reasonable people” and “You are the person of average disposition, the reasonable person.”
He said, “And how does that work, in a nutshell? Well, it’s the heat of passion that is obscured by that intense emotion. There’s a provocation, something that excites the passion. The killing occurs because he’s under this intense emotion. He acted rashly, without thinking. There it is. The ordinary reasonable person. The situation would cause a reasonable person to act rashly and without thinking.” The prosecutor urged: “The defendant is not permitted to set up his own standard of conduct to justify himself, meaning here the defendant runs downstairs. Ladies and Gentlemen, he is taken back up. He’s the one that runs downstairs and initiates physical contact again.”
In rebuttal argument, the prosecutor argued that even if heat of passion was established during the initial melee, the evidence showed that there was a cooling period prior to the stabbings. The prosecutor asserted: “If you are to believe this is voluntary manslaughter by heat of passion, you have to believe that is what an ordinary person would do; that if someone said something negative about you or your spouse, anything negative, that you will react so irrationally, go somewhere for 15, 20 minutes, come back with a knife and start stabbing. If you believe that, then you as a jury convict him of voluntary manslaughter.” The prosecutor urged that this was not voluntary manslaughter because appellant was simply upset over some words that were said to him.
B. The Relevant Legal Principles
A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642–643.) Misconduct by a prosecutor that does not render a trial fundamentally unfair is error under state law if the prosecutor uses “deceptive or reprehensible methods” to attempt to persuade the court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.) “‘A defendant’s conviction will not be reversed for prosecutorial misconduct’ that violates state law, however, ‘unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1071.)
“‘“[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 284.)
C. The Analysis
1. The Remarks on Heat of Passion
The objective component of heat of passion is whether in the circumstances, an ordinary person would be so inflamed that he would lose reason and judgment. The provocative conduct may be verbal, but it “‘must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.’” (People v. Manriquez, supra, 37 Cal.4th 547, 585–586.) “‘“A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.”’ [Citation.]” (People v. Najera (2006) 138 Cal.App.4th 212, 226 (Najera).)
The People argue a forfeiture. “‘“[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]”’ [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 157.) We agree there is a forfeiture as trial counsel did not object in the trial court to any of the remarks complained of on appeal. In an attempt to avoid the forfeiture, appellant argues several exceptions to the rule of forfeiture. He asserts that: (1) the misconduct was so serious that it resulted in a violation of due process; (2) the failure to object and request a jury admonishment is excused because the error is grave and the admonition would not have cured any harm flowing from the improper comments; and (3) the contentions should be considered on its merits to avoid a claim of ineffective trial counsel. Our review of the record discloses that no exception applies. Nevertheless, we address the contentions on the merits.
Citing the decision in Najera, supra, 138 Cal.App.4th at page 223, appellant contends that the record shows that the prosecutor misled the jury by arguing that the determination of heat of passion should be based on the defendant’s conduct rather than on the circumstances in which the defendant was placed. He asserts that the comments constitute deceptive or reprehensible conduct because the law is misstated in such a way as to amount to an attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements of the offense.
In Najera, the issue of prosecutorial misconduct was raised in the context of claims of waiver and ineffective trial counsel. During final argument, the prosecutor had urged that in determining whether the defendant acted in the heat of passion, there was “a reasonable, ordinary person standard.... Any reasonable, ordinary person walking in on a child being molested, if they had a gun in their hand, would probably do the same thing.... Would a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody? That’s the standard.” (Najera, supra, 138 Cal.App.4th at p. 223, italics in the original.) In rebuttal, the prosecutor stated: “‘[T]he reasonable, prudent person standard... [is] based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that’s not a reasonable person standard.’” (Ibid.) The defendant argued that trial counsel’s failure to object to the prosecutor’s comments constituted ineffective assistance of counsel.
The court observed that “[a]n unlawful homicide is upon ‘“a sudden quarrel or heat of passion”’ if the killer’s reason was obscured by a “‘provocation”’ sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. [Citation.]” (Najera, supra, 138 Cal.App.4th at p. 223.) “The focus is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.” (Ibid.)
After setting out the applicable legal principles, the court held that the prosecutor’s remarks were misleading and a misstatement of law. It said that the record showed that the jury was misled by the remarks as during deliberations, it made an inquiry to the trial court concerning that very point. (Najera, supra, 138 Cal.App.4th at p. 224.) However, in Najera, despite the error, the court concluded that no reversal was necessary. The court explained that the remarks did not require a reversal as the victim conduct that precipitated the attack—calling the defendant a “‘faggot’”—demonstrated no provocation. Thus, the error was harmless, as in the first instance, appellant was not entitled to instructions on voluntary manslaughter. (Najera, supra, 138 Cal.App.4th at pp. 223–226.)
The question this court must address is not whether some of the prosecutor’s remarks, viewed in isolation, could be misleading. Rather, this court asks whether there is a “reasonable likelihood that the prosecutor’s arguments misled the jury in an objectionable fashion.” (People v. Morales, supra, 25 Cal.4th at p. 47.) Here, we find no error as the comments were not misleading and are distinguishable from those made by the prosecutor in Najera. In context, the prosecutor’s remarks would not have been understood to require the jury to focus on the reasonableness of the killer’s conduct, as contrasted with making the determination as to whether the circumstances were such as to amount to adequate provocation.
Here, before final argument, the trial court read to the jury complete instructions on heat of passion that reduced murder to voluntary manslaughter and heat of passion that reduced attempted murder to attempted voluntary manslaughter. (CALCRIM Nos. 570, 603.) The court’s instructions were proper statements of the law. Immediately before making the complained-of remarks, the prosecutor read to the jury the elements for finding voluntary manslaughter on a theory of sudden quarrel or heat of passion. The point of the prosecutor’s argument was that for voluntary manslaughter, the provocation had to cause a person of average judgment to act rashly, and the prosecutor asked the jury rhetorically whether a reasonable person would have been provoked merely because another man said to him, “Hey, I like your wife, you like my wife.”
The prosecutor also argued that the jurors were persons of reasonable sensibilities and urged there was no adequate provocation—all that had happened in this instance was that appellant had become upset over some words that were said to him. The prosecutor’s remarks, viewed in context, amounted to nothing more than a request that the jury apply to appellant’s conduct the standard that the ‘conduct [by the victim must] be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.’” (Najera, supra, 138 Cal.App.4th at p. 225.) The remarks are not like those in Najera, which focused entirely on how “the killer responded to the provocation and the reasonableness of the response....” (Id. at p. 223.)
Further, during the defense final argument, trial counsel informed the jury that the prosecutor’s remarks on this point were potentially misleading. Thus, the jury was alerted that it should refer to the trial court’s jury instructions for the appropriate standard. During deliberations, the jury was given a written copy of the trial court’s instructions. Additionally, as contrasted with Najera, there was no evidence in the record that the prosecutor’s remarks had confused the jury, and there was no inquiry on this point during jury deliberations. (Najera, supra, 134 Cal.App.4th at p. 224.)
Moreover, the trial court charged the jury with CALCRIM No. 222, which directed the jury, as follows: “Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence.” In CALCRIM No. 200, the trial court told the jury that it was required to follow the law as explained in its instructions. Also, if the attorney’s comments conflicted with the law in its instructions, the jury should follow its instructions. On review, we are required to presume that the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
The record contains no evidence of misconduct under either state or federal standards.
2. Deliberation and Premeditation
Appellant contends that the prosecutor made misstatements of law that constituted misconduct and that the remarks constituted a “particularly egregious form of prosecutorial impropriety” that involved “an attempt to relieve the prosecution of its burden to prove the elements of its case beyond a reasonable doubt.” Appellant concedes that it does not take an extended period of time for a person to deliberate and premeditate and that a reasoned judgment may be reached relatively quickly. But he takes issue with the prosecutor’s remarks as the prosecutor’s example of driving omitted the important element of deliberation that requires “‘careful thought and weighing of considerations for and against the proposed course of action.’” He claims that the example “minimized the seriousness of the matter under consideration.”
“‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citations.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 829–830.)
Appellant attempts to persuade this court to find error based on an analogy to improper prosecutorial comment that equates reasonable doubt to a mere reasonable decision. In People v. Nguyen (1995) 40 Cal.App.4th 28, 35–36, the prosecutor improperly suggested the reasonable doubt standard was the same as applied to daily life decisions such as changing lanes or getting married. In People v. Johnson (2004) 115 Cal.App.4th 1169, 1171, the trial court improperly amplified the statutory definition of reasonable doubt by suggesting the jury’s beyond-a-reasonable–doubt decision equated to planning a vacation or scheduling flights. That is not what the prosecutor did here. By his example, the prosecutor attempted to explain the concept of deliberation and premeditation, not reasonable doubt. His point was that the process of deliberation and premeditation can occur very quickly, which is what the law provides. The prosecutor’s failure to also fully explain the concept of deliberation did not denigrate the standard of reasonable doubt, nor did it trivialize the decision the jury would make on deliberation and premeditation.
Before final argument, the trial court charged the jury with instructions on the concepts of deliberation and premeditation. (CALCRIM Nos. 521, 601.) In its instructions, the trial court told the jury that the “test [for deliberation and premeditation] is the extent of the reflection, not the length of time,” and that the People have the burden of proof in demonstrating that the killing was first degree murder or a deliberate and premeditated attempted murder, in lieu of some lesser offense. It instructed the jury that “[t]he defendant acted deliberately if he carefully weighted the considerations for and against his choice and, knowing the consequences, decided to kill.” (CALCRIM Nos. 521, 601.) Given the above jury instructions, the trial court’s direction that the jury decide the case according to its instructions on the law, and the general charge on reasonable doubt, it is not reasonably likely that the jury was misled with respect to the requirements for deliberation. Nor would the jury have construed the prosecutor’s remarks in such a way as to lessen the prosecutor’s burden of proof.
VI. Cumulative Error
Appellant contends that the cumulative effect of the alleged trial errors warrants a reversal of his convictions. “[T]he litmus test [for cumulative error] is whether a defendant received due process and a fair trial.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) We find no trial error here, much less cumulative error or a denial of due process. Consequently, we will not order a reversal.
VII. Consecutive Sentencing
Appellant contends that the imposition of consecutive sentences on the basis of aggravating factors not found by the jury violates his Sixth Amendment right to a jury trial pursuant to the decisions in Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270.
“The Federal Constitution’s jury-trial guarantee assigns the determination of certain facts to the jury’s exclusive province. Under that guarantee, this Court held in Apprendi [v. New Jersey (2000) 530 U.S. 466] ‘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.’ [Citation.]” (Oregon v. Ice (2009) ___ U.S. ___ [129 S.Ct. 711, 716] (Ice).)
Recently, in Ice, the United States Supreme Court upheld Oregon’s consecutive sentencing law, which authorizes trial courts to impose consecutive terms of imprisonment under criteria that afford the trial court constrained discretion. (Ice, supra, 129 S.Ct. at p. 717.) The court held that the “twin considerations” of historical practice and respect for state sovereignty counseled against extending Apprendi’s rule to the imposition of sentences for discrete crimes. (Ice, supra, at p. 717.) The California Supreme Court has also concluded that a defendant has no right to a jury trial on factors considered by the trial judge as the basis for imposing consecutive terms. (People v. Black (2007) 41 Cal.4th 799, 820–823.) As this court is bound by precedent, appellant’s contention must be rejected. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
VIII. The Abstract of Judgment
During the oral proceedings of sentencing, the trial court imposed $200 restitution and parole revocation restitution fines pursuant to sections 1202.4, subdivision (b), and 1202.45. Pursuant to an agreement entered into by the parties, the trial court ordered appellant to pay $8,000 to the Restitution Fund. Appellant requests, and the People agree, as does this court, that the abstract of judgment fails to set out the above orders.
Section 1202.4, subdivision (f), provides in pertinent part: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.... [¶]... [¶] (2)... Restitution ordered pursuant to this subdivision shall be ordered to be deposited to the Restitution Fund to the extent that the victim... has received assistance from the Victim Compensation Program....”
The abstract of judgment erroneously indicates that the trial court ordered appellant to pay a $8,000 restitution fine and a $8,000 parole restitution fine respectively pursuant to sections 1202.4, subdivision (b) and 1202.45. The abstract of judgment fails to reflect the trial court’s order that appellant pay $8,000 to the Restitution Fund pursuant to section 1202.4, subdivision (f).
A reviewing court may correct clerical errors in the abstract of judgment where the clerk’s notations fail to accurately reflect the oral proceedings of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
In our disposition, we will order the abstract of judgment amended to reflect the restitution fines and the restitution ordered by the trial court.
DISPOSITION
The judgment is affirmed.
The superior court is ordered to cause its clerk to prepare and file an amended abstract of judgment providing that, inter alia, appellant was ordered to pay the following: (1) a $200 section 1202.4, subdivision (b), restitution fine; (2) a $200 section 1202.45 parole revocation restitution fine, which is ordered stayed until such time as parole is revoked; and (3) $8,000 to the state Restitution Fund pursuant to section 1202.4, subdivision (f)(2).
We concur: DOI TODD Acting P. J., CHAVEZ J.