Opinion
E051674 Super.Ct.No. INF063053
02-10-2012
THE PEOPLE, Plaintiff and Respondent, v. PIETRO ALBERTO SAINTIS, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristen Kinnaird Chenelia, and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristen Kinnaird Chenelia, and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Pietro Alberto Saintis (defendant) was convicted of the second degree murder of his girlfriend, Donna Bodkin, whom he beat and strangled to death during a quarrel. He contends that his trial attorney provided constitutionally deficient representation when he failed to object to a portion of the prosecutor's closing argument, in which the prosecutor misrepresented the elements of voluntary manslaughter. He also contends that the court had a sua sponte duty to give a clarifying instruction following the prosecutor's misstatement of the law.
We agree that the prosecutor's argument misstated the law. However, because it is not reasonably likely that the jury would have convicted him of voluntary manslaughter rather than second degree murder in the absence of the misstatement, defendant has not met his burden on the claim of ineffective assistance of counsel. And, we reject the contention that the court had a duty to give a clarifying instruction in the absence of a request from defendant. Accordingly, we will affirm the judgment.
PROCEDURAL HISTORY
Defendant was charged with the murder of Donna Bodkin. Following the prosecution's case-in-chief, the trial court granted a defense motion to fix the offense at no more than second degree. The jury found defendant guilty of second degree murder.
The court imposed the mandatory sentence of 15 years to life, and defendant filed a timely notice of appeal.
FACTS
Defendant spent the evening of November 7, 2006, playing pool or ping pong and drinking with some friends at a bar in Palm Desert. During the evening, he had bragged that he could get his girlfriend, Donna Bodkin, to engage in a threesome with him and his friend Mark Caldwell.
Defendant testified that he knew that Bodkin would never agree to such a thing and that he had no actual intention of engaging in a threesome that evening. Nevertheless, he admitted that he had told investigators that he had bragged to his friends that he could persuade her to do so. He told investigators he was upset with Bodkin because he had promised his friends a threesome and she did not show up as promised.
Defendant telephoned Bodkin twice, and she agreed to come join him at the bar. During the second phone call, she told him she was on her way on the bus. However, she never arrived at the bar. Defendant's third and fourth telephone calls to Bodkin went unanswered.
Defendant left the bar and walked by himself to Caldwell's house. When Caldwell returned home around 1:00 a.m., he found defendant asleep in his hammock. Defendant asked Caldwell to give him a ride to Bodkin's RV in Desert Hot Springs. According to defendant, he was worried about Bodkin; according to Caldwell, he was angry and kept saying that he needed to see her. Caldwell at first refused, but when defendant offered him $100, he agreed to take defendant to Bodkin's home. He dropped defendant off at Bodkin's RV sometime between 1:00 and 2:00 a.m.
When defendant arrived at Bodkin's RV, he could see her inside, cleaning the kitchen. He went inside and asked her why she had not come to the bar. She did not give him a clear answer, but according to defendant's testimony, although he was irritated with her refusal to give him a clear answer, they did not have an argument about it. Rather, they engaged in conversation, inhaled some "lines" of dope, and then agreed to walk to a local store to buy some food. Before they left the RV, however, there was a knock at the door. Defendant could see a man outside the door. He told Bodkin to get rid of him. Bodkin went to the door and spoke to the man, who then left. Defendant did not know who he was, but suspected that he might be someone Bodkin was buying drugs from or using drugs with, or someone she was seeing socially.
He asked Bodkin who the man was but she did not give him a satisfactory answer. They argued, and they both became angry. Bodkin slapped defendant and pushed him, and told him to leave. When Bodkin pushed him, he stepped back and hurt his knee. That provoked him, and he slapped her across the face. Bodkin began screaming "Don't. Somebody help." Defendant grabbed her and wrestled her to the floor. He held her down and put his hand over her mouth to keep her from screaming. Bodkin bit his thumb, hard. He hit her to make her release his thumb. He was angry at that point. Bodkin struggled and kept screaming for help. They struggled, and defendant hit her numerous times. He was "just in a rage, an uncontrollable, stupid rage."
Defendant did not recall strangling her, but the evidence showed that Bodkin died from manual strangulation. Sufficient pressure was exerted against her throat to fracture the throat cartilage. She also had numerous blunt force traumatic injuries, including a laceration of her forehead that went down to the bone, a broken nose and blackened right eye. She had scratches and bruising on her cheeks, on the bridge of her nose, and on her chin, neck, forearms, torso, thighs, ankles and the back of her right arm. Defendant's DNA was found under her fingernails, and his semen was inside her vagina.
Defendant denied having sex with Bodkin on November 7. He said they had had sexual intercourse the night of November 6.
LEGAL ANALYSIS
1.
DEFENDANT SUFFERED NO PREJUDICE FROM HIS TRIAL ATTORNEY'S
FAILURE TO OBJECT TO THE PROSECUTOR'S MISSTATEMENTS OF THE
LAW PERTAINING TO VOLUNTARY MANSLAUGHTER
Defense counsel argued in his closing argument that defendant did not intend to kill. He contended that defendant was provoked and reacted in a rage. In response, the prosecutor made the following argument:
"Each of us has talked about the provocation. . . . You are to decide whether a man coming to the door is sufficient provocation. You are to decide if hitting a woman while she's laying [sic] down, helpless, time and time and time again, and then choking her past unconsciousness, to death, is a reasonable response. [¶] . . .[W]hat he did was overkill. Overkill in beating her, overkill in choking her, overkill in pushing her neck to the point where her Adam's apple is fractured, and she's biting her own tongue and scraping with [her fingernails] . . . for her last inch of life. What he did was overkill. What he did was unjustified. What he did was unreasonable. What he did was illegal. What he did was murder. And that's all that he is guilty of." (Italics added.)
On appeal, defendant contends that this argument was improper because it asserted that in order to find him guilty of voluntary manslaughter rather than murder, the jury would have to find that defendant's response to the provocation was reasonable, i.e., that a reasonable person would have reacted homicidally to Bodkin's conduct. He contends that "heat of passion" refers solely to provocation which would cause a reasonable person of average disposition to act out of passion rather than reason, and that the law does not also require that a reasonable person would have been incited to homicide.
Defendant is correct that to the extent that the prosecutor argued that a "reasonable person" standard applies to a defendant's response to provocation, the argument misstates the law. A defendant commits voluntary manslaughter, not murder, when he or she unlawfully kills another person "upon a sudden quarrel or heat of passion." (Pen. Code, § 192, subd. (a).) The "heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . '[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)
In People v. Najera (2006) 138 Cal.App.4th 212 (Najera), the trial court instructed the jury on voluntary manslaughter. In arguing the case to the jury, the prosecutor focused on the killer's response to the provocation, contending that it was disproportionate as the provocation would not cause an average person to kill. On appeal, the court concluded that this argument was erroneous and improper, explaining that "[t]he focus [of a heat of passion defense] 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." (Id. at p. 223.)
The court in Najera reached this issue despite having concluded that the defendant forfeited his claim of prosecutorial misconduct by failing to object at trial. (Najera, supra, 138 Cal.App.4th at p. 224.) Its analysis is therefore dictum. However, its analysis, requiring the focus to be on the sufficiency of the provocation and not on whether the killer's response to the provocation is "reasonable," is a correct statement of the law.
The California Supreme Court has long held that provocation must be sufficient to cause an ordinarily reasonable person to act from passion rather than judgment. (See People v. Logan (1917) 175 Cal. 45, 49 [provocation sufficient to arouse the passions of the ordinarily reasonable man]; People v. Manriquez (2005) 37 Cal.4th 547, 583-584 [conduct sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection].) It has never held that in order to reduce murder to manslaughter the provocation must be something which would cause a reasonable person to react with lethal violence. Rather, the court has repeatedly held that what negates malice is simply a state of mind obscured by passion. (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Accordingly, to the extent that it suggested that defendant's response to the provocation had to be reasonable in order for the jury to return a verdict of voluntary manslaughter, the prosecutor's argument in this case misstated the law.
Defendant also contends that the prosecutor made a similar argument conflating the provocation with the reasonableness of defendant's response to it in his initial closing argument. In that argument, the prosecutor began by saying, "In deciding whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather than from judgment." (Sic.) He went on to demonstrate the length of time required for defendant to strangle Bodkin to death.
This is an odd juxtaposition, but we do not see it as arguing that defendant's response to the provocation was unreasonable. Rather, it appears to refer instead to whether the sheer length of time it took to kill Bodkin would have constituted a "cooling off" period for an average person, during which he or she would regain his or her "clear reasoning and judgment," and which would defeat defendant's claim that he killed under the influence of the heat of passion. (See CALCRIM No. 570.)
Defendant recognizes that because counsel did not object to this argument as a misstatement of the law and because an admonition to the jury could have cured any prejudice to the defense, any contention of prosecutorial misconduct is forfeited. (People v. Hill (1998) 17 Cal.4th 800, 820.) Instead, defendant contends that his attorney's failure to object deprived him of his state and federal constitutional right to the effective assistance of trial counsel.
"'To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."' [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 674 -675, citing and quoting, inter alia, Strickland v. Washington (1984) 466 U.S. 668, 686.) Stated another way, ineffective assistance of counsel is prejudicial if there is a reasonable likelihood that the outcome of the trial would have been more favorable to the defendant in the absence of counsel's failing. (Strickland v. Washington, supra, at p. 694.)
We do not ordinarily address a question of ineffective assistance of counsel on direct appeal, unless the appellate record discloses that there can be no conceivable tactical purpose for counsel's act or omission. If the appellate record sheds no light on reasons for counsel's act or omission, a claim of ineffective assistance of counsel is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) However, if the defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without reaching the question of whether counsel's performance was deficient or was an appropriate choice of tactics. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
Defendant's petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel, is pending before this court. (In re Saintis on Habeas Corpus, E053506.) We will address that petition by separate order.
Here, even if we assume that trial counsel had no valid tactical reason for failing to object, we can determine that his omission was not prejudicial because there is no reasonable probability that the jury would have returned a verdict of voluntary manslaughter in the absence of the prosecutor's erroneous argument.
Defendant testified that he flew into a rage when, during an argument, Bodkin pushed him. He responded by hitting her and wrestling her to the floor. He put his hand over her mouth to stop her screams for help, and she bit his thumb. In response, he beat her savagely and strangled her. Although a physical fight can constitute provocation for purposes of voluntary manslaughter, it must still satisfy the requirement that a reasonable person would have been provoked to the point that his or her reason and judgment were obscured by passion. (People v. Moye (2009) 47 Cal.4th 537, 550.) And, if sufficient time has elapsed between the provocation and the infliction of the fatal injury for "'passion to subside and reason to return,'" the killing is not voluntary manslaughter. (Ibid., quoting People v. Wickersham (1982) 32 Cal.3d 307, 327.) The forensic pathologist testified that although the strangulation could have rendered Bodkin unconscious within 30 seconds, it would have taken "two or three to five" minutes for her to die. Even though the prosecutor did erroneously state that the killer's response to provocation must be reasonable, the actual thrust of his argument—both the portion of his rebuttal which we quoted above and the portion of his initial closing argument described in footnote 3, ante—was that in the two to five minutes it took Bodkin to die, defendant had ample to time to reflect on what he was doing and to desist. Even if we assume that the jury could have found legally adequate provocation—a proposition we find questionable in itself—there is no reasonable probability that jurors would have concluded that defendant's reason and judgment would have remained clouded by rage for that length of time.
On cross-examination, defendant said the provocation consisted of the argument about the unidentified man coming to Bodkin's door at 2:00 a.m. On direct, however, he made it clear that although that was the basis for the argument, he flew into a rage during the physical altercation, after Bodkin slapped him and bit his thumb. He also stated that she provoked him by pushing him and fighting back.
Moreover, where a prosecutor has misstated the law during closing arguments, a reviewing court will presume that the jury followed the trial court's correct instructions on the law. (People v. Boyette (2002) 29 Cal.4th 381, 435-436) Here, the trial court correctly instructed the jury on the law pertaining to voluntary manslaughter. It also instructed the jury to follow the court's instructions as to the law and to disregard any statements by counsel which conflicted with the court's instructions. There is nothing in the record to indicate that the jury did not follow these instructions.
Defendant argues, however, that because the standard instruction on heat of passion voluntary manslaughter (CALCRIM No. 570) does not specifically warn the jury that the defendant's response to the provocation is not relevant to deciding whether the provocation was legally sufficient, there was no obvious conflict between the court's instruction and the prosecutor's argument. Consequently, he contends, the prosecutor's misstatement of the law was not cured by the court's instructions to the jury.
We disagree. CALCRIM No. 570, as given in this case, states:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.
"The defendant killed someone because of a sudden quarrel or in the heat of passion if:
"1. The defendant was provoked;
"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment;
"AND
"3. The provocation would have caused 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.
"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, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.
"If enough time passed between the provocation and the killing for a person of average disposition to 'cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder." (Italics added.)
While CALCRIM No. 570 does not expressly state that the defendant's response to the provocation need not be reasonable, it also gives no indication that the defendant's response must be reasonable, as the prosecutor argued in this case. On the contrary, the instruction states that the killing may be reduced to voluntary manslaughter if, "[a]s a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment." In contrast, the instruction states twice that the provocation must be sufficient to cause a person of average disposition to act rashly or from passion rather than judgment, and states once, for emphasis, that the defendant may not set up his own standard of conduct for provocation. Accordingly, while the instruction may not be perfect, it sufficiently conveys the distinction between the objective criteria for the provocation and the defendant's subjective response.
The Attorney General informs us that the correctness of CALCRIM No. 570 is currently pending before the California Supreme Court in People v. Beltran, review granted June 15, 2011, S192644.
--------
For both reasons, we conclude that defendant has not met his burden of demonstrating a reasonable probability that a more favorable outcome would have resulted if his trial attorney had objected to the prosecutor's misstatements.
2.
THE COURT HAD NO SUA SPONTE DUTY TO GIVE A CLARIFYING
INSTRUCTION
Defendant also contends that the court erred by failing to instruct the jury that a killer's response to provocation is not relevant in determining whether the provocation was legally sufficient. He contends that because the prosecutor misstated that principle, the trial court had a duty to provide an instruction clarifying the law on provocation as a "general principle[] of law" which is closely and openly connected to the facts before the court and which was necessary to the jury's understanding of the case. He contends that this duty arose because the prosecutor presented the jury with an incorrect legal theory.
The cases defendant relies upon—People v. Guiton (1993) 4 Cal.4th 1116 and People v. Morales (2001) 25 Cal.4th 34 (Morales)—do not support his argument. Indeed, Morales is directly on point and directly contradicts defendant's contention.
In Morales, the defendant was charged with possession of PCP in violation of Health and Safety Code section 11377, subdivision (a). In his closing argument, the prosecutor (according to defendant's interpretation) told the jurors that even if they, or some of them, did not believe that the defendant possessed the vial of PCP found in his van, they could still find him guilty of possession of PCP based on the fact that he was under the influence of PCP at the time of his arrest. The prosecutor argued that the defendant could not have been under the influence of the drug without first having possessed it. (Morales, supra, 25 Cal.4th at p. 45.) Based on this argument, which is a misstatement of the law (id. at p. 44), the defendant argued that the trial court had a duty to instruct the jury that a finding of possession could not be based solely on the defendant's being under the influence. He contended that failing to do so amounted to presenting the jury with an invalid legal theory. (Id. at pp. 41-42.) The Supreme Court, however, disagreed. It contrasted that case with People v. Guiton, supra, 4 Cal.4th 1116 and People v. Green (1980) 27 Cal.3d 1. In those cases, it was the court's own instructions, not just the prosecutor's arguments, which presented the case to the jury on legally invalid theories. (Morales, at pp. 42-43.) In Morales, in contrast, the court gave correct instructions defining the offense. Accordingly, the court did not present the case to the jury on a legally incorrect theory. Any misstatement of the law in the prosecutor's closing argument was, at most, "merely" prosecutorial misconduct. The burden was on the defense to object. (Id. at pp. 43-44.)
Similarly, here, the trial court correctly instructed the jury on the general principles pertaining to voluntary manslaughter. The burden was on the defense to object to the prosecutor's misstatement of law and to request an admonition to the jury or a clarifying instruction. (See People v. Hill, supra, 17 Cal.4th at p. 820.) As we have previously discussed, defendant has failed to demonstrate any prejudice which resulted from his attorney's failure to do so.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Ramirez
P.J.
Miller
J.