Opinion
D057750
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO DE LOS SANTOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. RIF144610)
APPEAL from a judgment of the Superior Court of Riverside County, W. Charles Morgan, Judge. Reversed.
Fernando De Los Santos appeals a judgment following his jury conviction of second degree murder (Pen. Code, § 187, subd. (a)). On appeal, he contends: (1) the trial court erred in instructing on implied malice murder; (2) the trial court erred in instructing, and the prosecutor erred in arguing, on the provocation required for the lesser included offense of voluntary manslaughter; and (3) the trial court erred by not instructing on the lesser included offense of involuntary manslaughter. Because we conclude the trial court prejudicially erred in instructing on implied malice murder, we reverse the judgment.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At about 9:00 a.m. on July 8, 2008, police found the body of Julio Perez in an alley near a market on Arlington Avenue in Riverside. An upside-down desk was found on top of Perez's body. A small board and a piece of plexiglass, both with blood on them, were found nearby. Perez's identification and two cell phones were found on him.
An autopsy showed Perez died of blunt force head and neck trauma. There were numerous blunt force injuries and lacerations to his head and neck. Perez's injuries were consistent with being punched and kicked by steel-toed boots at least two to three times. Blood spatter evidence showed Perez was close to or lying on the ground when he lost most of his blood. There were multiple bloody shoeprints on Perez's shirt and on the ground leading out of the alley.
Police obtained surveillance videotape from a security camera inside a nearby liquor store. It showed De Los Santos and Perez entering the liquor store together at 5:43 p.m. on July 7. Perez was wearing a white t-shirt, dark pants, and a white baseball cap. Inside the store, Perez looked at cell phones, while De Los Santos bought some large Coors Light beers. The two men left the store together. The videotape showed De Los Santos and Perez returned to the store at 6:22 or 6:23 p.m. Perez returned alone to the liquor store at 7:33 p.m. and made a purchase.
Police also obtained surveillance videotape from a security camera outside a nearby market. That videotape showed that at 8:37 p.m. on July 7, a person, wearing a white tank top, dark pants, and a white baseball cap, walked out of the alley where Perez's body was found the next morning. That person walked about 30 to 35 feet, turned around, and then reentered the alley. After about 30 seconds, the person left the alley again. The videotape did not show any other persons in the area of the alley.
The videotape did not show that person entering the alley.
A telephone number on one of Perez's cell phones led police to De Los Santos, who lived in a home two blocks from the alley. On July 13, police arrested De Los Santos, advised him of his Miranda rights, and interviewed him. De Los Santos initially denied knowing Perez and claimed he worked until 3:00 p.m. on July 7 and went straight home without meeting anyone. When shown the liquor store videotape, De Los Santos admitted he went to the liquor store and bought beer, but claimed he left alone and all the beer was for him.
Miranda v. Arizona (1966) 384 U.S. 436.
The interview was audio recorded and later played for the jury during trial. The jury also received a transcript of that recorded interview.
During the interview, De Los Santos's story changed. He soon admitted he was at the liquor store with Perez, who he met at a bus stop. He drank beers with Perez at a church and returned to the liquor store to buy more beer. The two men later parted after De Los Santos used Perez's cell phone to call his brother. De Los Santos said he drank four 24-ounce beers and was drunk.
De Los Santos initially denied being present in the alley where Perez's body was found. However, when detectives told him a videotape showed him entering the alley, he admitted drinking beer in the alley with Perez after his second trip to the liquor store. He said that, while in the alley, he spoke with Perez's sister using Perez's cell phone and gave her his brother's phone number. De Los Santos said that after he and Perez drank the beer, they left the alley and Perez went to take a bus in the opposite direction of where he (De Los Santos) was going. De Los Santos denied they had fought. He denied knowing that Perez had been beaten up and died.
When confronted with the fact that the videotape showed him leaving the alley alone and bloody footprints led out of the alley, De Los Santos admitted he had not told the truth about what happened. He told the detectives he was now willing to tell them the truth.
De Los Santos said that after he and Perez drank the beer, they were drunk and Perez started saying "gay stuff," said he (Perez) was a "faggot," and asked him (De Los Santos) to have sex with him. When De Los Santos told Perez to stop and declined his offer, Perez slapped his face. De Los Santos told Perez to "just chill." Perez then took a swing at De Los Santos, who punched Perez in the face in defense. Perez then began punching De Los Santos. The two men wrestled. De Los Santos punched Perez five or six times in the face, dazing him and causing him to bleed from his face or nose. When Perez fell to the ground, De Los Santos punched and kicked him. He said he kicked Perez about seven times with his steel-toed boots and stepped on Perez's chest. De Los Santos was "so pissed off" he could not remember if he hit Perez with a board or plexiglass. He did not remember covering Perez's body with a piece of wood or taking his white baseball cap.
De Los Santos later said Perez punched, not slapped, him.
De Los Santos claimed Perez was still alive and was moving and breathing when he (De Los Santos) left the alley. De Los Santos went home, showered, and went to bed. The next day, he cleaned the blood off his boots and pants and threw away his white tank top. He did not tell his brother or sister, who lived in his home, that he had been in a fight.
De Los Santos admitted to police he thought he "went too far" with Perez and kicking and punching Perez when he was on the ground "was out of hand." He said he never thought Perez was going to die. He said he was just defending himself.
An information charged De Los Santos with one count of first degree, premeditated murder (§ 187, subd. (a)). At trial, the prosecution presented evidence substantially as described above. De Los Santos did not testify or present any other evidence in his defense. The jury acquitted him of first degree murder and found him guilty of second degree murder. The trial court sentenced him to a term of 15 years to life in prison. De Los Santos timely filed a notice of appeal.
DISCUSSION
I
Instruction on Implied Malice Murder
De Los Santos contends the trial court prejudicially erred in instructing the jury on implied malice murder. He asserts the court erred by instructing the jury that he acted with implied malice if at the time he acted he knew his act could cause death or great bodily injury.
A
The prosecution argued that De Los Santos was guilty of first degree murder because he deliberately beat Perez to death with premeditation and an intent to kill him. Alternatively, the prosecution argued he was guilty of second degree murder on an implied malice theory. De Los Santos's defense theory was that he was guilty, at most, of voluntary manslaughter on a heat of passion or imperfect self-defense theory. The trial court instructed the jury on first degree murder, second degree murder, and voluntary manslaughter on both a heat of passion and imperfect self-defense theory.
The trial court instructed with CALCRIM No. 520 on the elements of murder, stating in pertinent part:
"The defendant is charged with murder in violation of Penal Code section 187.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant committed an act that caused the death of another person; [¶] AND
"2. When the defendant acted, he had a state of mind called malice aforethought[;] [¶] AND
"3. (He killed without lawful justification).
"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
"The defendant acted with express malice if he unlawfully intended to kill.
"The defendant acted with implied malice if:
"1. He intentionally committed an act;
"2. The natural consequences of the act were dangerous to human life;
"3. At the time he acted he knew his act was dangerous to human life; [¶] AND
"4. He deliberately acted with conscious disregard for human life." (Italics added.)
The jury began its deliberations on January 21, 2010. On January 26, after about 15 hours of deliberations over four days, the jury submitted a question to the trial court, asking: "Please help us understand implied malice #3 on page 24 of the jury instructions." The trial court brought the jurors into the courtroom, explaining it was "going to walk [them] through the entire definition of implied malice, and then . . . see if that's helpful to you." The court then explained the element of implied malice:
"The defendant acted with implied malice if:The jury foreperson replied, "Yes, your Honor."
"One, he intentionally committed an act. He purposely did an act. Wasn't accidental, he didn't trip and cause—you know, accidentally trip and cause a series of consequences. He intentionally did something.
"Two, the natural consequences of the act were dangerous to human life. Whatever he did could cause death or great bodily harm, natural consequence of that.
"Three, at the time he acted, he knew his act was dangerous to human life. When he intentionally did whatever he did, a defendant, this case or any implied malice, he knew, while he was acting, this is serious stuff. It could cause death or great bodily injury.
"And four, he deliberately acted with conscious disregard for human life. He understood the consequences, and still went forward.
"Is that helpful?" (Italics added.)
The court then asked the jurors whether they remembered its "example about the passing train." The foreperson replied, "Yes." The court stated:
"That's a clear case of implied malice. I am going to shoot through one window, across the other window, in the Metrolink train as it goes by. I know there are passengers on this train. I'm not going to shoot at a passenger. I'm so good, I'm going to shoot through both windows and not harm a person. Well, what happens? I shoot. I understand the consequences. I do it anyway. It's intentionally done. And I shoot somebody. Because I understood, yeah, there's passengers in there, and they might be hit. All right?"The foreperson thanked the court and the jury left the courtroom to resume its deliberations at 10:23 a.m. At 11:10 a.m. (47 minutes later), the jury reported it had reached a verdict.
Before the jury returned to the courtroom, De Los Santos's counsel stated her belief that the court, in explaining to the jurors an act dangerous to human life, had stated it could be either great bodily injury or death. She stated that, in looking at case law, she could not "find anything that indicated that dangerousness to human life under second degree [murder] meant great bodily injury or causing death, basically." She requested the court reinstruct the jury "on just that [issue] alone, if that made a difference. I don't know if it did. But after that instruction, they obviously came right back with a verdict. And my concern is that they may have hung their hat on that . . . ." The trial court denied her request. The trial court then received the jury's verdict finding De Los Santos guilty of second degree murder.
B
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "[S]uch malice may be express or implied. . . . It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) Since 1989, for purposes of instructing juries on implied malice, the California Supreme Court has emphasized that the better practice is to give the definition articulated in People v. Phillips (1966) 64 Cal.2d 574 (overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 490 (Flood)), incorporated in CALCRIM No. 520. (People v. Knoller (2007) 41 Cal.4th 139, 152 (Knoller),citing People v. Dellinger (1989) 49 Cal.3d 1212, 1221.) The Phillips test provides that "[m]alice is implied when the killing is proximately caused by ' "an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." ' " (Knoller, at p. 152.) Knoller stated: "In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (Id. at p. 143.) In Knoller, the California Supreme Court concluded the Court of Appeal had erred in "set[ting] the bar too low, permitting a conviction of second degree murder, based on a theory of implied malice, if the defendant knew his or her conduct risked causing death or serious bodily injury." (Ibid.) For purposes of implied malice murder, Knoller treated serious bodily injury as equivalent to great bodily injury. (Id. at p. 156.) Knoller concluded: "[A] conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life. In holding that a defendant's conscious disregard of the risk of serious bodily injury [or great bodily injury] suffices to sustain such a conviction, the Court of Appeal erred." (Ibid.) Therefore, "[k]nowledge of the risk of serious bodily injury [that may result from the defendant's act] is not enough" for implied malice murder. (People v. Vance (2010) 188 Cal.App.4th 1182, 1203.)
"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court and necessary for the jury's understanding. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. St. Martin (1970) 1 Cal.3d 524, 531.)
Furthermore, "[t]he prosecution bears the burden of proving all elements of the offense charged [citations], and must persuade the factfinder 'beyond a reasonable doubt' of the facts necessary to establish each of those elements [citations]." (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 (Sullivan).) "Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions." (Flood, supra, 18 Cal.4th at pp. 470, 479-480.) "[T]he failure to correctly instruct as to an element of an offense can violate the United States Constitution." (People v. Avila (1995) 35 Cal.App.4th 642, 652.) Accordingly, a trial court has a duty to correctly instruct on each element of a charged offense. (See, e.g., Pope v. Illinois (1987) 481 U.S. 497, 500-503 [erroneous instruction on an element of the offense]; Rose v. Clark (1986) 478 U.S. 570, 579-581; Yates v. Evatt (1991) 500 U.S. 391, 401-402, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 72-73, fn. 4.)
"[T]he United States Supreme Court . . . has consistently applied [the standard of prejudice under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)]to instructional error cases involving either misinstruction of a single element of a charged crime or a constitutional defense." (People v. Avila, supra, 35 Cal.App.4th at p. 662, italics added; see also Flood, supra, 18 Cal.4th at pp. 502-503.) "[A]n instructional error that improperly describes . . . an offense . . . is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution [but] . . . such an error . . . falls within the broad category of trial error subject to Chapman review." (Flood, at pp. 502-503.)
C
De Los Santos asserts the trial court erred in instructing the jury on implied malice murder because its answer to the jury's question on the third part of CALCRIM No. 520's definition of implied malice erroneously expanded the standard requirement that at the time he knew his act was dangerous to human life to a lesser requirement that he knew his act "could cause death or great bodily injury." Alternatively stated, he argues the trial court, in so instructing the jury, presented it with an erroneous alternative theory of implied malice murder. He argues the court's instructions, read as a whole, allowed the jury to convict him of second degree murder without finding he knew his act endangered human life, but finding only that he knew his act could cause great bodily injury.
We are not persuaded by the People's argument that De Los Santos waived or forfeited this contention because his counsel did not timely object to the court's instruction below. We may review any instruction given, "even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259.) Because De Los Santos's constitutional rights are affected by the court's purported error in instructing the jury, we may review the instant contention regardless of whether he objected below. Furthermore, contrary to the People's argument, the purported instructional error was not one merely of an ambiguous, albeit correct, instruction that may have warranted clarification, but rather involves a fundamentally erroneous instruction on an element of the charged offense of second degree murder. (Cf. People v. Marks (2003) 31 Cal.4th 197, 236-237 [defendant needed to request clarification of an instruction that was a correct statement of law].)
We conclude the trial court erred in instructing the jury that it could convict De Los Santos if it found that at the time of his act he knew his act could cause death or great bodily injury. "[I]mplied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (Knoller, supra, 41 Cal.4th at p. 143.) Knoller held the Court of Appeal erred in concluding that "a defendant's conscious disregard of the risk of serious bodily injury [or great bodily injury] suffices to sustain a conviction [for implied malice murder]." (Id. at p. 156.) "Knowledge of the risk of serious bodily injury [that may result from the defendant's act] is not enough" for implied malice murder. (People v. Vance, supra, 188 Cal.App.4th at p. 1203.) By incorrectly instructing the jury that De Los Santos could be convicted of implied malice murder if he knew his act could cause only great bodily harm and not death, the trial court erred.
The fact that the trial court initially instructed with, and then later repeated, CALCRIM No. 520 on implied malice did not render meaningless its subsequent erroneous explanation of that instruction. Had the court simply instructed with CALCRIM No. 520, there would have been no error. That standard instruction correctly states the law of implied malice murder and, in particular, the element that at the time the defendant acted he or she knew that act was dangerous to human life. (Knoller, supra, 41 Cal.4th at p. 152.) However, in response to the jury's request for guidance or amplification of that element of implied malice as stated in CALCRIM No. 520, the trial court erroneously expanded that element to allow knowledge only that the defendant's act could cause great bodily harm (and not death). In so doing, the court erroneously lowered the prosecution's burden to prove De Los Santos committed implied malice murder. Reading the court's instructions as a whole, we cannot conclude the jurors in this case necessarily would have rejected, or did reject, the trial court's (erroneous) explanation of implied malice murder and, instead, applied only the standard definition articulated in CALCRIM No. 520.
The People assert the trial court's erroneous explanation of implied malice murder was merely "an unhelpful off-the-cuff effort at elaboration" that the jurors would have logically rejected in favor of the "plain language" of CALCRIM No. 520. Had the jurors believed the language of CALCRIM No. 520 was plain, we doubt they would have sought the assistance of the trial court in interpreting it. Likewise, the jurors were not seeking assistance in interpreting the concept of dangerousness to human life because they did not also ask the court for assistance in interpreting the second part of implied malice murder under CALCRIM No. 520 (i.e., the natural consequences of the act were dangerous to human life).
D
Having concluded the trial court erred in instructing on one element of implied malice murder, we address the question of whether that error was prejudicial and requires reversal of De Los Santos's conviction for second degree murder. When a trial court incorrectly instructs on an element of a charged offense, the applicable standard of prejudice is the Chapman standard. (People v. Avila, supra, 35 Cal.App.4th at p. 662; Flood, supra, 18 Cal.4th at pp. 502-503.) Under the Chapman standard, a federal constitutional error requires reversal unless the People show the error was "harmless beyond a reasonable doubt." (Chapman, supra, 386 U.S. at p. 24.) Alternatively stated, a conviction need not be reversed if the People show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Ibid.) Explaining how that standard of prejudice should be applied, the United States Supreme Court stated:
"[T]he question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it hadAccordingly, in reviewing the prejudice of the instructional error in this case under the Chapman standard, we consider not how the error might have affected a reasonable jury, but rather how the instructional error actually affected the verdict rendered by the jury in this case.
upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks, we have said, to the basis on which 'the jury actually rested its verdict.' [Yates v. Evatt, supra, 500 U.S. at p. 404, italics added.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee." (Sullivan, supra, 508 U.S. at p. 279.)
Based on our review of the whole record, we conclude the People have not carried their burden to show the trial court's instructional error was harmless beyond a reasonable doubt. There is nothing in the jury's verdict that shows the jury actually considered, but rejected, the court's erroneous instruction on implied malice. Rather, the jury's general verdict simply states it found De Los Santos guilty of second degree murder as charged in the information. The verdict does not show the jury necessarily found De Los Santos knew his conduct was dangerous to human life.
Furthermore, there was substantial evidence that could have supported a finding by the jury that at the time De Los Santos acted he knew his act or acts could cause great bodily harm, but not that he knew his act or act could cause death. In his interview with police, De Los Santos stated that when Perez fell to the ground, he punched him and kicked him about seven times with his steel-toed boots. He further said that when he left the alley Perez was still alive and was moving and breathing. De Los Santos said he never thought Perez was going to die. Based on that evidence, the jury in this case could have reasonably found that at the time of De Los Santos's act or acts he knew his act or acts could cause great bodily harm, but not death. There was substantial evidence for the jury to have found De Los Santos guilty of second degree murder based on the trial court's erroneous instruction on implied malice, allowing conviction if he knew only that his act or acts could cause great bodily harm.
Finally, and most importantly, the circumstances of the jury's deliberations in this case strongly suggest that it actually relied heavily on the trial court's expanded instruction on implied malice murder in reaching its verdict. The jury deliberated for about 15 hours over a four-day period before asking the trial court to assist it in understanding the third part of CALCRIM No. 520's instruction on implied malice. The jury's note asked the court: "Please help us understand implied malice #3 on page 24 of the jury instructions." The trial court then brought the jury into the courtroom and gave its erroneous explanation of that element of implied malice. In explaining to the jury how to interpret the instruction's requirement that De Los Santos knew "his act was dangerous to human life," the court instructed that phrase meant that while he was acting he knew his act "could cause death or great bodily injury." (Italics added.) Within 47 minutes after receiving that erroneous instruction on implied malice (which in effect lessened the prosecution's burden in proving implied malice murder), the jury reached its verdict finding De Los Santos guilty of second degree murder. There appears to have been a direct connection between the trial court's erroneous instruction on implied malice and the jury's guilty verdict. Alternatively stated, it appears that the jury in this case actually applied the trial court's erroneous, lessened standard of proof for implied malice in reaching the verdict in this case. Before receiving that erroneous instruction, the jury could not reach a verdict for 15 hours. Within 47 minutes of receiving that erroneous instruction, the jury reached its guilty verdict. We cannot say "the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan, supra, 508 U.S. at p. 279.)
The fact that there was substantial, if not strong evidence, to have supported a finding De Los Santos knew at the time that his act was dangerous to human life does not show that the court's erroneous instruction was harmless error because, as the People assert, a reasonable jury would have reached a guilty verdict based on the correct standard for implied malice and not the trial court's erroneous instruction. In Sullivan, the United States Supreme Court stated: "[T]he question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks, we have said, to the basis on which 'the jury actually rested its verdict.' [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee." (Sullivan, supra, 508 U.S. at p. 279.) It is not our function on appeal to weigh the evidence and determine whether the trial court's federal constitutional error was harmless because any hypothetical juror necessarily would have found the defendant guilty regardless of that error. Rather, we must consider how the court's constitutional error actually affected the verdict rendered by this jury in the circumstances of this case. In so doing, we conclude the trial court's error in instructing on an element of implied malice murder was not harmless beyond a reasonable doubt. (Ibid.; Chapman, supra, 386 U.S. at p. 24.) Accordingly, De Los Santos's conviction for second degree murder must be reversed. (Chapman, at p. 24.)
II
Voluntary Manslaughter
De Los Santos contends the trial court erred in instructing, and the prosecutor erred in arguing, on the provocation required for the lesser included offense of voluntary manslaughter. Although we need not address that contention because of our reversal of the judgment, we nevertheless briefly do so to provide guidance to the trial court and counsel in the event the People elect to retry De Los Santos in this case.
A
The trial court instructed with CALCRIM No. 570 on the offense of voluntary manslaughter based on a sudden quarrel or heat of passion theory as a lesser included offense of murder. Without restating the entirety of CALCRIM No. 570, certain pertinent excerpts are:
"The defendant killed someone because of a sudden quarrel or in the heat of passion if:The court's instruction with CALCRIM No. 570 correctly described the provocation required for voluntary manslaughter on a sudden quarrel or heat of passion theory. Its instruction correctly stated the provocation is sufficient if it would have caused a person of average disposition to have acted rashly and from passion rather than from judgment. The instruction did not, as De Los Santos asserts, state the provocation is sufficient only if it would have actually induced a reasonable person to kill. (Cf. People v. Najera (2006) 138 Cal.App.4th 212, 223-224 (Najera))The court did not err in instructing on voluntary manslaughter based on a sudden quarrel or heat of passion theory.
"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. [¶] . . . [¶]
" . . . 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." (Italics added.)
B
De Los Santos asserts the prosecutor erred, or committed misconduct, in arguing in closing that an incorrect standard applied for provocation for voluntary manslaughter. He argues the prosecution's closing argument focused not on the act purportedly causing the provocation, but on whether the provoking act would have caused a reasonable person to have killed Perez.
In arguing there was insufficient evidence of provocation for voluntary manslaughter, the prosecutor argued:
"The question that you have to ask yourself is would a person of average disposition have done the same thing? So, would . . . a person, reasonable mind, average disposition, even under intense emotion, because Mr. Perez made some sort of sexual advance at him . . . would an ordinary person do this to Mr. Perez? I think it's clear that the answer to that is no; right?In rebuttal argument, the prosecutor argued:
"This was not an ordinary reaction to that provocation. That provocation was so slight and so small . . . .
" This is not something that a reasonable person or an ordinary person, an average person that you see walking down the street, this is not how they would react to this situation, even if you believe that that is what started this, if you believe what the defendant said." (Italics added.)
"But having someone perhaps make a homosexual pass at you, that's not what spurs a reasonable person to do what the defendant did to Mr. Perez. That's not . . . heat of passion. It's murder." (Italics added.)
Because his counsel did not timely object and request an admonition, De Los Santos has waived or forfeited this contention. (Najera, supra, 138 Cal.App.4th at p. 224; People v. Farnam (2002) 28 Cal.4th 107, 167.) He does not persuade us that a timely objection and request for admonition could not have cured the asserted prosecutorial misconduct. (Najera, at p. 224; Farnam, at p. 167; People v. Hill (1998) 17 Cal.4th 800, 820.)
Even assuming De Los Santos did not waive or forfeit this contention, we nevertheless would conclude the purported prosecutorial misconduct was harmless error. Because the trial court correctly instructed the jury with CALCRIM No. 570 on voluntary manslaughter and instructed the jury with CALCRIM No. 200 that the jury must follow the law as the court instructs and ignore conflicting comments on the law by the attorneys, we presume the jury followed those instructions and applied the correct standard for provocation. (Najera, supra, 138 Cal.App.4th at p. 224; People v. Boyette (2002) 29 Cal.4th 381, 436.) Accordingly, it is not reasonably probable De Los Santos would have obtained a more favorable verdict had the prosecutor not committed the purported prosecutorial misconduct. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Likewise, to the extent De Los Santos argues he was denied effective assistance of counsel when his attorney did not timely object to the prosecutor's purported misconduct and request an admonition, he has not carried his burden on appeal to show his attorney's purported deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) He does not persuade us it is reasonably probable he would have obtained a more favorable verdict had his attorney timely objected to the purported prosecutorial misconduct and requested an admonition. (Ibid.; Watson, supra, 46 Cal.2d at p. 836.)
III
Refusal to Instruct on Involuntary Manslaughter
De Los Santos contends the trial court erred by refusing his request for an instruction on involuntary manslaughter as a lesser included offense of murder. Although we need not address that contention because of our reversal of the judgment, we nevertheless briefly do so to provide guidance to the trial court and counsel in the event the People elect to retry De Los Santos in this case.
A
In general, a trial court "must, on its own initiative, instruct the jury on lesser included offenses when there is substantial evidence raising a question as to whether all the elements of a charged offense are present [citations], and when there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense." (People v. Cook (2006) 39 Cal.4th 566, 596.) However, if there is insufficient evidence to support a finding the defendant committed a lesser included offense, the trial court should not instruct on that lesser included offense. (People v. Moye (2009) 47 Cal.4th 537, 540-541, 553-555; People v. Breverman, supra, 19 Cal.4th at p. 162.) "Due process requires that the jury be instructed on a lesser included offense only when the evidence warrants such an instruction." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.)
B
Section 192 defines the offense of involuntary manslaughter as the unlawful killing of a human being without malice "in the commission of an unlawful act, not amounting to [a] felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b), italics added.) This language implies that a killing in the commission of an unlawful act that amounts to a felony is an offense other than involuntary manslaughter. Accordingly, a killing, without malice, in the commission of a misdemeanor, but not a felony, may constitute involuntary manslaughter. We further note there is some case law supporting a third, judicially-created type of involuntary manslaughter—namely, a killing, without malice, in the commission of a noninherently dangerous felony. (People v. Butler (2010) 187 Cal.App.4th 998, 1006-1007; People v. Garcia (2008) 162 Cal.App.4th 18, 27-29; People v. Burroughs (1984) 35 Cal.3d 824, 835-836, disapproved on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.) However, we are unaware of any recent decision of the California Supreme Court confirming the validity of that type of involuntary manslaughter. For purposes of this case, we nevertheless assume such third type exists under California law.
People v. Garcia, supra, 162 Cal.App.4th at pp. 29-31, appears to question the continuing validity of all or part of Burroughs in light of the California Supreme Court's subsequent decisions in People v. Blakeley, supra, 23 Cal.4th 82 and People v. Lasko (2000) 23 Cal.4th 101.
C
Based on our review of the record in this case, we conclude there was insufficient evidence to support an instruction on involuntary manslaughter as a lesser included offense of murder. Although De Los Santos argues there is evidence to support a finding he killed Perez, without malice, in the commission of an "unlawful act," such a finding would not necessarily constitute involuntary manslaughter. If the evidence supports the finding he, at a minimum, killed Perez in the commission of an unlawful act that is an inherently dangerous felony, then there would be insufficient evidence to support an instruction on involuntary manslaughter.
The evidence admitted at trial included De Los Santos's statements to police. As discussed above, he told police he punched Perez five or six times in the face, dazing him and causing him to bleed from his face or nose. When Perez fell to the ground, De Los Santos punched and kicked him. He said he kicked Perez about seven times with his steel-toed boots and stepped on Perez's chest. No reasonable juror could conclude such a beating inflicted on Perez by De Los Santos constituted a misdemeanor assault or any other misdemeanor offense. Rather, the evidence shows he committed, at a minimum, an inherently dangerous felony assault. Section 245, subdivision (a)(1), defines the felony offense of assault of another person "with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (Italics added.) Based on De Los Santos's repeated, violent punches and kicks (with steel-toed boots) to Perez's head and neck causing extensive bleeding onto the ground and onto De Los Santos's boots and other clothing, no reasonable jury could conclude that De Los Santos's assault was not by means of force likely to produce great bodily injury. (Cf. § 245, subd. (a)(1).) There was insufficient evidence to support a finding that De Los Santos killed Perez, without malice, in the commission of either a misdemeanor or a noninherently dangerous felony. Therefore, the trial court properly refused De Los Santos's request that it instruct on involuntary manslaughter as a lesser included offense of murder. (Cf. People v. Garcia, supra, 162 Cal.App.4th at p. 33 ["[I]n light of the undisputed evidence Garcia assaulted Gonzalez with a deadly weapon/firearm [i.e., a § 245, subd. (a)(1) felony assault], knocking him to the sidewalk where he hit his head and died, there was not sufficient evidence in this case the killing of Gonzalez was involuntary manslaughter.
Accordingly, no involuntary manslaughter instruction was required."].)
In any event, De Los Santos does not carry his burden on appeal to show he was prejudiced by the purported error (i.e., it is reasonably probable he would have obtained a more favorable verdict had the trial court instructed on involuntary manslaughter as a lesser included offense of murder). (People v. Moye, supra, 47 Cal.4th at pp. 555-556; Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is reversed.
McDONALD, J. WE CONCUR:
BENKE, Acting P. J.
HALLER, J.