Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA312641. Marcelita V. Haynes, Judge.
James H. Barnes for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Deville Simmons, convicted of attempted murder (Pen. Code, §§ 187/664) and shooting at an occupied vehicle (§ 246), appeals his conviction and sentence on the grounds that: (1) the trial court erred in its instructions on provocation and should have given other instructions; (2) the prosecutor committed misconduct; (3) his trial counsel rendered ineffective assistance; (4) the sentence on count 2, for shooting at an occupied vehicle, should have been stayed; and (5) his sentence on count 2 was in error. We modify the sentence to stay an enhancement on count 2 but otherwise affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Sharine J. became Simmons’s girlfriend in 2003 and broke up with him in June 2006. After the breakup, Sharine J. learned that Simmons was asking around her neighborhood about her location, her car, and her companions.
In early November 2006, Sharine J. saw Simmons driving down her street as she walked with her friend Mark Bell. Simmons and Bell were acquaintances; Bell had introduced Simmons and Sharine J. Simmons stopped his car and called Bell over to speak with him briefly. Bell’s account of the conversation frightened Sharine J.
On the night of November 13, 2006, Sharine J. and Bell went to a movie and drove back to Sharine’s neighborhood, parking in a secluded area on a residential block. They sat and talked in the car, then drove to a convenience store for a drink, and afterwards returned to the same parking place. Sharine J., who was driving the car, selected the location because it was quiet and private. Sharine J. and Bell began to kiss and embrace, then moved to the backseat of the car, where the windows were tinted, for privacy. After a few minutes, Sharine J. heard a “very familiar” car motor and looked up to see Simmons’s car.
Simmons drove past Sharine J.’s car, then made a U-turn and drove by again. Sharine J. scrambled into the front seat to drive away, but Simmons blocked her car with his vehicle. Simmons and a passenger exited Simmons’s car. The passenger stood still, but Simmons put his hands in his sweatshirt’s front pocket. Although she could not see his hands or anything in his pockets, from her experience with Simmons and the way his hands were placed she believed that he might be holding a gun. In Sharine J.’s experience, Simmons carried a gun “[p]retty much all the time”; he did not leave home without it.
Sharine J. was scared of Simmons and what he might do. Considering Simmons’s exit from the car an opportunity to flee, she maneuvered her car around Simmons’s car and drove off at full speed. Simmons chased Sharine J.; she could see his headlights in her rear view mirror. Sharine J. was driving more than 85 miles per hour on city streets. She made a series of turns but was unable to elude her pursuer. Bell remained in the back seat of the car.
After some time, Sharine J. slowed, thinking that perhaps she and Simmons could communicate. Simmons caught up to her and pulled along the driver’s side of her car. Sharine J. looked over at Simmons and saw his right arm extended with a gun in his hand. The gun was pointed at her face. Simmons shot Sharine J. through the neck.
Police who heard the shots chased Simmons down and arrested him and his passenger, Rodney Prince. Sharine J. was taken to the hospital, where she told the police that Simmons had shot her. On November 15, 2006, she identified Simmons as her shooter from a single photo and identified Prince from a photographic lineup.
Simmons was charged with two counts of attempted murder and one count of firing at an occupied vehicle; each count bore numerous special allegations. At trial, Simmons denied Sharine J.’s account of events in its entirety: he claimed that he had not pulled up alongside her car, chased her in his vehicle, or shot at her. According to Simmons, he was in his car with Prince, driving to his mother’s house, on the evening of the shooting when he heard a gunshot next to his car, from the side of his car where Prince was sitting. Simmons made some turns, Prince threw a gun out the passenger window of the car, and then they were stopped by the police. He testified that he did not see Sharine J.’s car until after the gunshot.
The court instructed the jury on provocation and heat of passion based on evidence of the prior relationship and evidence that Sharine J. and Bell had been having sexual intercourse in the car. Prince had testified that he had told the police that he believed that the people in the backseat of the car were having intercourse, and he also believed that Simmons was upset because he saw the two engaged in intercourse. That moment, according to Prince, was when Simmons’s demeanor changed. He looked upset and was “real mad.” Simmons mumbled to himself as he followed Sharine J.’s car. Prince heard him say, “This bitch thinks she’s slick. This bitch is crazy,” and “She’s trying to get away with this. I’m going to catch her.” He also said, “I can’t believe he did that to me.” Prince testified that he believed he heard Simmons say that he was going to kill Sharine J., although he was not sure. Prince reported that Simmons fired a single shot into Sharine J.’s car.
The jury found Simmons guilty of the attempted murder of Sharine J., and also found true the special allegations that the attempted murder was willful, deliberate and premeditated; that a principal was armed with a handgun within the meaning of section 12022, subdivision (a)(1); that Simmons personally inflicted great bodily injury on Sharine J. under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e); and that Simmons employed a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (d). The jury also convicted Simmons of shooting at an occupied motor vehicle and found true enhancement allegations under section 12022.7, subdivision (e) and section 12022.53, subdivision (d). The jury found Simmons not guilty of the attempted murder of Bell.
The trial court sentenced Simmons to life in prison with the possibility of parole for the attempted murder, plus an additional 25 years to life in prison for the firearms enhancement under section 12022.53, subdivision (d). On count 2, the court sentenced Simmons to the upper term of seven years in state prison plus 25 years to life for the section 12022.53, subdivision (d) firearms enhancement and five years for the section 12022.7, subdivision (e) enhancement, all to be served concurrently with the sentence on count 1. Simmons appeals.
DISCUSSION
I. CALCRIM No. 603
The trial court instructed the jury, without objection, with CALCRIM No. 603, concerning provocation and heat of passion reducing an attempted murder to attempted voluntary manslaughter. As given here, the instruction provides as follows:
“An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.
“The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if:
“1. The defendant took at least one direct but ineffective step toward killing a person;
“2. The defendant intended to kill that person;
“3. The defendant attempted the killing because he was provoked;
“4. The provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment;
“AND
“5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant’s reasoning or judgment.
“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 an attempted murder to attempted 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 an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
“If enough time passed between the provocation and the attempted killing for an ordinary person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis.
“The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder.”
CALCRIM No. 603 directly tracks and states the law of provocation and heat of passion. “[T]he factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murder is provocation.” (People v. Lee (1999) 20 Cal.4th 47, 59 (Lee).) The provocation must be caused by the victim or by conduct reasonably believed by the defendant to have been engaged in by the victim, and it must be “sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (Ibid.) No specific type of provocation is required. (People v. Lasko (2000) 23 Cal.4th 101, 108.)
The passion resulting from the provocation may be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (People v. Breverman (1998) 19 Cal.4th 142, 163 (Breverman).) “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 201 (Barton).) “The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill [here, attempt to kill] under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively,” such that “‘this 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.’” (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) CALCRIM No. 603 incorporates both components.
Simmons alleges that the instruction misstates the law in multiple respects, and the People argue that the issue is forfeited. We address each contention in turn.
A. Forfeiture
As an initial matter, the People contend that Simmons has forfeited this argument because he did not request clarification of CALCRIM No. 603 at trial. (People v. Young (2005) 34 Cal.4th 1149, 1202.) Although Simmons does allege that terms in the instruction are “ambiguous” and suggests modifications to the instruction, his central argument is that CALCRIM No. 603 incorrectly states the law. A defendant need not object to preserve a contention of instructional error when the error affects the defendant’s substantial rights. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
B. Considering Provocation from a Reasonable Person’s Perspective
Simmons argues that CALCRIM No. 603 does not state that provocation must be considered from the perspective of a reasonable person in the defendant’s position. According to Simmons, the instruction fails to advise the jury “that it must judge whether a person of average disposition in the defendant’s position who knows what the defendant reasonably believes to be true would have been provoked.” The instruction, however, does instruct the jury on this objective element of the heat of passion test. CALCRIM No. 603, as given here, provides, “You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.” (CALCRIM No. 603, italics added.) This passage informs the jury that it must determine whether a person of average disposition in the same position as the defendant, knowing what the defendant knows, would have been provoked. In this respect, CALCRIM No. 603 is entirely consistent with longstanding California law: “[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.” (People v. Logan (1917) 175 Cal. 45, 49; see also Steele, supra, 27 Cal.4th at pp. 1252-1253.)
Not only did CALCRIM No. 603 adequately explain how provocation was to be evaluated, but the jury was also instructed during deliberations with a modified version of CALJIC No. 8.42, which provided in pertinent part, “The heat of passion which will reduce an attempted murder to attempted voluntary manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation.” (Italics added.) Here again, the jury was directed that it must judge whether a person of average disposition in the defendant’s position who knows what the defendant reasonably believes to be true would have been provoked. The jury was properly instructed on the issue of considering provocation from the perspective of a reasonable person in the defendant’s position.
C. Reasonableness of Response to Provocation
Next, Simmons argues that CALCRIM No. 603 is defective because it does not explain that it is the reasonableness of the defendant’s emotional response to the provocation, rather than his physical actions based on those emotions, that is in question. To Simmons, the passage in the instruction on this point, which directs the jury to consider “how such a person would react in the same situation knowing the same facts,” is unclear, because the word “react” commonly connotes conduct rather than an emotional response. Simmons argues that the phrase must be modified to specify that the jury should consider how a person of average disposition would “react emotionally in the same situation knowing the same facts.” Otherwise, he argues, the instruction is susceptible of being understood as requiring that the jury consider whether the defendant’s acts in response to the provocation were those of a reasonable person.
We do not believe that the instruction, when read as a whole, is susceptible to this interpretation. For provocation and heat of passion to reduce an attempted murder to an attempted voluntary manslaughter, the jury must find, inter alia, that “[t]he provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” (CALCRIM No. 603, as given.) This does not involve any review of whether the acts themselves were reasonable, only that the provocation was such that it would have caused a reasonable person to act from passion rather than by using judgment. In this same vein, the jury was further instructed that in the course of evaluating whether the provocation was sufficient to cause an ordinary person to act based on passion rather than on rational judgment, it should “consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.” (CALCRIM No. 603, as given here.) CALCRIM No. 603 conveys that the jury is charged with evaluating the evidence of provocation to determine whether it would have prompted an ordinary person to act rashly and without due deliberation, that is, from passion rather than from judgment. At no point does the instruction direct the jury to decide whether the defendant’s actual acts in response to the provocation were those of a reasonable person. Simmons has not established any error in CALCRIM No. 603.
The Attorney General asserts, however, that the jury should in fact evaluate whether a defendant’s acts were reasonable. This is not the law. “How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.” (People v. Najera (2006) 138 Cal.App.4th 212, 223 (Najera).) Ignoring Najera, the Attorney General supports this assertion with part of a sentence in People v. Cole (2004) 33 Cal.4th 1158, 1211 (Cole). In Cole, the defendant argued that a jury instruction should have been given that related provocation to the intent to inflict extreme pain that is the mental state necessary for murder by torture. The California Supreme Court rejected this contention because it was an apples-and-oranges comparison: “Defendant argues the trial court should have instructed on provocation for purposes of voluntary manslaughter. But provocation for such purposes has nothing to do with intent and everything to do with circumstances, specifically, whether the circumstances would have caused a reasonable person to act as defendant did. (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253, 120 Cal.Rptr.2d 432, 47 P.3d 225.) Thus, to instruct on provocation for purposes of voluntary manslaughter would have not assisted the jury in determining whether provocation prevented defendant from forming the intent necessary to commit murder by torture. The two concepts are distinct.” (Cole, at p. 1211.)
As the full passage reveals, the Supreme Court did not hold in Cole that when a jury determines whether an attempt to kill was attempted voluntary manslaughter based upon a heat of passion, the jury should determine whether a reasonable person would have done what the defendant did rather than whether a reasonable person would have acted rashly under the same circumstances. (Cole, supra, 33 Cal.4th at p. 1211.) While the Supreme Court’s phrasing does permit this argument, there is no reason to conclude that the Supreme Court, in a case concerning murder by torture, would have silently altered the law on heat of passion voluntary manslaughter with a single unexplained phrase about “act[ing] as defendant did.” (Ibid.) Instead, we understand this sentence in conformity with existing law on heat of passion and provocation, in which the jury is asked to determine, in the course of applying the objective test for provocation, whether a reasonable person’s passions would have been aroused under similar facts and circumstances: that is, that “whether the circumstances would have caused a reasonable person to act as defendant did” (ibid.) is a shorthand expression meaning whether the circumstances would have a caused a reasonable person “to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” (Barton, supra, 12 Cal.4th at p. 201.)
Our conclusion that this is not a sub silentio addition of a review of the reasonableness of the defendant’s ultimate conduct is buttressed by the fact that to support this statement in Cole, the Supreme Court cited Steele, supra, 27 Cal.4th at pages 1252 through 1253. There, the Supreme Court held that the standard jury instructions were sufficient to instruct the jury on heat of passion. In the portion of Steele on which the Cole court relied, the Supreme Court reviewed the law of provocation, noting the objective and subjective components, and set forth the long-established case law that “‘this 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.’ (People v. Logan (1917) 175 Cal. 45, 49 [164 P. 1121].)” (Steele, supra, at pp. 1252-1253.) At no point in Steele did the Supreme Court hold that the jury is to determine whether a reasonable person would have done what the defendant did (that is, commit the crime the defendant committed) as opposed to whether a reasonable person would have been similarly prompted to lose sight of reason and act rashly under circumstances like those the defendant encountered.
Finally, we note that additional instructions given by the trial court during deliberations reinforced CALCRIM No. 603’s provision that the jury is concerned with whether the provocation was such that it would cause a reasonable person to act from passion rather than from judgment. As given, CALJIC No. 8.42 provided, “The question to be answered is whether or not, at the time of the attempted killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment.” This formulation of the provocation instruction expressly directed the jury that it was to consider whether the provocation caused the defendant’s reason or judgment to be disturbed or obscured to such a degree as would cause an ordinary person to act based on passion rather than judgment, specifically focusing on the state of mind of the accused rather than on any question of the reasonableness of his ultimate actions. Similarly, Special Instruction No. 6 informed the jury that the provocative conduct would have to “cause an ordinary person of average disposition to act rashly or without due deliberation and reflection,” and that it must be “such that an average, sober person would be so inflamed that he would lose reason and judgment.” These instructions, taken individually and as a whole, do not invite the jury to determine whether the criminal acts of the defendant were reasonable, only whether the provocation was such that it would cause a reasonable person to depart from reason and act based on passion. We discern no likelihood that the jury ultimately misunderstood its obligations in this regard.
II. Instructions Given in Response to Jury Questions
The jury sent out two questions during deliberations. First, the jury asked, “I’d like a clarification on what constitutes ‘heat of passion.’ Specifically what is meant by ‘legally adequate provocation’? In addition, could the court provide a more detailed definition of ‘ordinary person’? By ‘ordinary person,’ am I to consider what an ordinary person would likely do if he or she was put in similar circumstances or what an ordinary person would be capable of doing.” In response, and with counsel’s consent, the court re-read CALCRIM No. 603 and read an additional instruction, a modified CALJIC No. 8.42: “The heat of passion which will reduce an attempted murder to attempted voluntary manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. [¶] The question to be answered is whether or not, at the time of the attempted killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment. [¶] If there was provocation, whether of short or long duration, but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the attempted act for passion to subside and reason to return, and if an attempt to unlawful[ly] kill a human being followed the provocation and had all the elements of attempted murder, as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to attempted voluntary manslaughter.”
Later, the jury asked, “If the defendant was provoked due to actions he was directly responsible for, would that constitute ‘provocation’ as the court defines it? If the provocation was self-induced, would that also be considered to be ‘provocation’ or would that fall under a different category?” With defense counsel’s approval, the court responded to the first question in this inquiry with a portion of CALCRIM No. 603: “It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.”
In response to the second question, and with Simmons’s consent, the court referred the jury back to CALCRIM No. 603, re-read its version of CALJIC No. 8.42, and delivered a special instruction it had prepared based on Lee, supra, 20 Cal.4th at page 59. The instruction, Special Instruction No. 6, read, “The provocation which incites the defendant to conduct in the heat of passion must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [¶] The test of adequate provocation is an objective one. The provocation must be such that an average, sober person would be so inflamed that he would lose reason and judgment.”
Simmons complains that Special Instruction No. 6 was drawn from a decision that dealt with a different issue than that presented here; that it did not adequately explain the concepts it used; and that the language was inaccurate. None of these contentions has merit. The portion of Lee, supra, 20 Cal.4th at pages 59 to 60, from which the instruction was drawn, was a general statement of the law of provocation and heat of passion from which the court considered whether the evidence warranted the giving of voluntary manslaughter instructions; the court ultimately concluded that it need not reach those questions because any error was favorable to the defendant. The fact that the issue before the court differed here does not mean the general principles of the law of provocation were any different. Simmons has not identified any inaccuracies in the Lee decision that would make drawing on it inappropriate. Moreover, despite his contention that the instruction failed to explain the concepts it employed, Simmons has not specified any concepts that were inadequately defined or explained.
Simmons’s core complaint with the special instruction is that it was inaccurate because it did not specify that provocation is viewed from the point of view of a reasonable person in the defendant’s position. The instruction, however, expressly states that “the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection,” and that “[t]he provocation must be such that an average, sober person would be so inflamed that he would lose reason and judgment.” This instructed the jury to consider the effect of the provocation on a reasonable person in the defendant’s position. Moreover, Special Instruction No. 6 did not purport to be a complete description of the law of provocation; it was a pinpoint instruction given to amplify the standard CALCRIM and CALJIC instructions that covered provocation and voluntary manslaughter on a heat of passion theory. Through these multiple instructions, the trial court adequately instructed the jury that the objective test for provocation concerned a person in the same circumstances as the defendant.
CALCRIM No. 603 (to which the jury was again referred when the court gave Special Instruction No. 6) and CALJIC No. 8.42 (read again to the jury immediately before the court gave Special Instruction No. 6) explicitly stated that the ordinary person of average disposition in question when considering provocation was an ordinary person in the same circumstances as the defendant. As given here, CALJIC No. 8.42 specified, “The heat of passion which will reduce an attempted murder to attempted voluntary manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances.” (Italics added.) Moreover, it explained that a defendant could not be found to have acted in the heat of passion “unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation.” (Ibid., italics added.) As given, CALCRIM No. 603, which had already been read to the jury and to which the jury was referred, stated, “In deciding whether the provocation was sufficient, consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.” (Italics added.)
Simmons makes a series of additional allegations in this section of the brief, none of which demonstrates error by the trial court. Contrary to Simmons’s argument that the instructions never answered the jury’s question as to whether it was the reasonableness of Simmons’s emotional reaction to the provocation or the reasonableness of his action that was in question, the instructions expressly stated that the operative question in this regard was whether at the time of the attempted killing Simmons’s “reason... was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection and from passion rather than from judgment.” Next, Simmons argues that the court demonstrated that it did not understand the law in some conversations with counsel about how to respond to one of the jury’s questions. These statements, however, were made outside the presence of the jury in the course of discussing what the court’s response to the jury’s inquiry might be. They were not incorporated into the instructions ultimately given to the jury, and thus do not constitute error, nor do they establish any error in the instructions ultimately given.
Next, Simmons argues that the only instructions given were favorable to the prosecution. Some of this argument is really a claim that the trial court should have instructed the jury with CALCRIM No. 522: Simmons contends that the trial court’s response to the first jury inquiry—the reading of CALCRIM No. 603 and CALJIC No. 8.42—“was not a complete reading of instructions because it failed to include the relationship of provocation to the degree of offense the jury could convict the defendant. The court should have given a modified version of CALCRIM 522 to completely explain provocation.” CALCRIM No. 522 is a pinpoint instruction, and the trial court has no duty to give a pinpoint instruction sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 878-879 [addressing CALCRIM No. 522’s predecessor instruction, CALJIC No. 8.73]; Bench Notes to CALCRIM No. 522.) Simmons did not request the court to give CALCRIM No. 522, and he therefore cannot complain that the court did not give that instruction.
Simmons also complains that the instructions were favorable to the prosecution because the trial court did not give CALJIC No. 8.50 (which he never requested) in addition to CALJIC No. 8.42. There was no error here. CALJIC No. 8.50 focuses on the distinction between murder and manslaughter, specifically providing that “When the act causing the death, though unlawful, is done [in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation,] [or] [in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury,] the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent.” The instruction also states that the burden is on the prosecution to prove beyond a reasonable doubt each element of murder and that the act causing death was not done in the heat of passion or upon a sudden quarrel. (CALJIC No. 8.50.) The relevant concepts in CALJIC No. 8.50—that the heat of passion reduces murder to manslaughter even though the intent to kill exists and that the People have the burden of proving the absence of heat of passion beyond a reasonable doubt—are both included in CALCRIM No. 603, which was given to the jury repeatedly. Moreover, none of the concepts in CALJIC No. 8.50 were the basis of the jury’s questions: the jury was concerned with the question of provocation, leading the trial court to supplement the CALCRIM instructions with CALJIC No. 8.42 and then its own special instruction. There was no error, and no incompleteness or favoritism toward the prosecution, in the failure to give CALJIC No. 8.50.
Finally, Simmons alleges that when the trial court read CALCRIM No. 603 to the jury for the third time (in response to the second jury inquiry), it read only select parts that were favorable to the prosecution. We disagree. The trial court read the portion of CALCRIM No. 603 that pertained to the jury’s very specific question concerning whether it constituted provocation if the defendant was provoked due to actions for which he was “directly responsible,” and it also referred the jury to CALCRIM No. 603, then gave CALCRIM No. 8.42 and Special Instruction No. 6. This was an accurate statement of the law with respect to the jury’s specific inquiry, and we discern no manner in which it was favorable to the prosecution or unfair to the defense. Simmons argues that he was entitled to have the jury consider the effect of provocation on his own state of mind, and these instructions directed the jury to do exactly that: to determine whether Simmons in fact “was provoked” and whether the circumstances in which Simmons was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. The trial court properly focused the jury on the principles applicable to the determinations it was charged with making.
III. Prosecutorial Misconduct
Simmons contends that the prosecutor committed misconduct in her final argument. The prosecutor argued, “[M]aybe he was upset. Or because he saw Sharine with his friend, and he got angry about that. And he was jealous about that. [¶] But, ladies and gentlemen, that’s not the standard of reducing an attempted murder to an attempt[ed] voluntary manslaughter. One cannot set up their own standards and say[,] ‘Well, oh, well, I saw my ex-girlfriend with whom I had broken up many months prior. I saw her with a friend of mine. And, oh. That made me jealous. And I got mad so that I’m entitled to be mad and shoot her.’ That’s not what the law requires. [¶] The law requires certain things to be shown in order to allow a reduction and to—to attempted voluntary manslaughter. [¶] You have to determine whether the shooter was adequately provoked. Was it a legally adequate provocation? And how do you find out whether the provocation was adequate? [¶] The defendant has to tell you that. That’s the only person that can tell you whether or not he was provoked such that the charge should be reduced to an attempted voluntary manslaughter. [¶] Did we hear that from the defendant? No. We heard that he didn’t even see Sharine. He didn’t see Sharine in the back of the car. So he couldn’t have got upset, could he? Because he didn’t see her with another man. So he wasn’t legally provoked. [¶] If it’s a no, no[] heat of passion. And what is the next requirement? Heat of passion? [¶] Was his reason obscur[ed]? How would you know that? [¶] Again, the defendant wouldn’t [sic] have to tell you that ‘I was so upset when I saw Sharine and Mark in the car that I was just blinded. I wasn’t rationally thinking. And my reason—it was obscure[d].’ [¶] Did he tell you that? No, he didn’t. He told you he was not even in the area and he never saw this.
“And what is another consideration you have to determine? Was he acting under the direct and immediate influence? [¶] Again, the shooter would have to say to you[,] ‘I acted right away. And when I was provoked, I was upset and wasn’t thinking rationally.’ [¶] Did the defendant tell you that? Did you hear that? No. Again, you heard that he wasn’t even there until the end when he was driving on Crenshaw Boulevard.
“The next thing is that he acted rashly and without reflection. [¶] Again, did you hear that from the defendant? No. You did not hear that from the defendant. [¶] And finally, you have to consider[,] would an ordinary—an ordinary reasonable person have acted this way. [¶] If you look at these answers, if any one of these are ‘No,’ then you get rid of it. [¶] It’s not a heat of passion defense. You cannot consider that the defendant then committed an attempted voluntary manslaughter if any of these answers are ‘No.’ [¶] And, again, the only way for you to determine ‘Yes’ or ‘No’ is if you hear from the person that did the shooting or acted under these external influences.”
Simmons argues that with this argument, the prosecutor misstated the law by asserting that there existed specific requirements for proving heat of passion attempted manslaughter, that the defendant had to meet these requirements by his own testimony, and that the final requirement for heat of passion was that an ordinary reasonable person would have acted the same way. Simmons, however, did not object to the prosecutor’s statement. Generally, on appeal, a defendant may not complain of prosecutorial misconduct unless the defendant objected in a timely fashion and requested that the jury be admonished. (People v. Williams (1997) 16 Cal.4th 153, 220-221.) A timely objection is not necessary if it would be futile, and the failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Simmons contends that any objection would have been futile, because comments made later by the trial court outside the presence of the jury indicated that the judge believed the prosecutor’s representation that the final requirement for heat of passion was that an ordinary reasonable person would have acted in the same manner. We are not convinced that this later statement demonstrates that an objection would have been futile. First, the court’s statement does not indicate any absence of understanding about the burden of proof, which is the primary problem with the prosecutor’s final argument: the prosecutor characterized heat of passion as a “defense” that had to be proven by the defendant through his personal testimony. There is no reason to believe that an objection to the prosecutor’s argument on this ground would have been futile; moreover, an admonition to the jury about the burden of proof would easily have remedied any prejudice resulting from the misconduct.
Second, the trial court’s later comment, “[I]t’s what would a reasonable person do. [¶] We’re all capable of murder, but would we all murder?” does not represent the court’s ultimate conclusion. When the court made its comment, it was considering a mid-deliberation jury request for an explanation of whether the jury was to consider what an ordinary person would do or what an ordinary person would be capable of doing. The prosecutor posited that the proper response to that question was “whether an ordinary, reasonable person would have acted as the defendant did,” while the defense attorney argued that the court should “simply say[] that it is what an ordinary person is capable of doing, not what they would do.” Both of these answers were imprecise, because the “ordinary person” question in the provocation context is whether the provocation would have caused an ordinary person of average disposition “to act rashly and without due deliberation, that is, from passion rather than from judgment.” (CALCRIM No. 603.) The trial court, however, ultimately reached an appropriate answer in the course of the discussion with counsel. Although the court initially said that it agreed with the People that the question was what a reasonable person would do, it then stopped in mid-sentence, said, “Give me just one minute,” and turned to the pattern jury instructions. The court then read aloud the relevant portion of CALJIC No. 8.42, requiring that the circumstances be such as would have aroused the passions of the ordinarily reasonable person, and suggested that this instruction be read to the jury on the ground that it gave a “better definition” of heat of passion than did the instructions previously delivered. Under these circumstances, where the court clearly identified the legal principles relevant to the jury’s determination, there is no reason to believe that an objection to the closing argument would have been futile. Accordingly, Simmons’s failure to object to the closing argument forfeited this objection on appeal.
IV. Ineffective Assistance of Counsel
Simmons argues that his trial counsel’s failure to object to the prosecutor’s final argument constituted ineffective assistance of counsel; he also claims ineffectiveness in counsel’s failure to request CALCRIM No. 522 or CALJIC No. 8.73 and in counsel’s closing argument. To establish ineffective assistance of counsel, Simmons must demonstrate that “(1) counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the petitioner.” (In re Neely (1993) 6 Cal.4th 901, 908.)
A. Failure to Object to Closing Argument
Defense counsel should have objected to the portions of the prosecutor’s final argument quoted in Section III above. The prosecutor first shifted the burden of proof: She characterized heat of passion as a “defense” and argued that the defendant had to show “certain things” to be entitled to a reduction of the offense from attempted murder to attempted voluntary manslaughter, running through a list of requirements and asking whether the defendant proved them. If he did not, the prosecutor concluded, “It’s not a heat-of-passion defense. You cannot consider that the defendant then committed an attempted voluntary manslaughter if any of these answers are ‘No.’” The prosecution was entirely incorrect. The prosecution’s own evidence tended to suggest that Simmons may have been provoked, and the People therefore carried the burden of proof of proving beyond a reasonable doubt that the crime was not committed in the heat of passion. (CALCRIM No. 603; Mullaney v. Wilbur (1975) 421 U.S. 684, 704 [holding that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case”]; People v. Rios (2000) 23 Cal.4th 450, 461-462 [when the prosecution’s evidence suggests that a killing may have been provoked, the defendant has no obligation to make a showing of provocation and the People must prove beyond a reasonable doubt that heat of passion was lacking in order to establish the element of malice].)
The prosecutor compounded her burden-shifting by arguing that the defendant was required to meet these elements through only one type of evidence. The prosecutor told the jury that the only way that heat of passion could be established was through the direct testimony of the defendant: “[T]he only way for you to determine ‘Yes’ or ‘No’ is if you hear from the person that did the shooting or acted under these external influences.” She asked, “[H]ow do you find out whether the provocation was adequate?” and answered, “The defendant has to tell you that.” She announced to the jury that the defendant was “the only person that can tell you whether or not he was provoked such that the charge should be reduced to an attempted voluntary manslaughter.” She further contended that “the shooter would have to say to you[,] ‘I acted right away. And when I was provoked, I was upset and wasn’t thinking rationally.’” She asserted that in order for the jury to conclude that the defendant’s reason was obscured, he would “have to tell you that ‘I was so upset when I saw Sharine and Mark in the car that I was just blinded. I wasn’t rationally thinking. And my reason—it was obscure[d].’”
We recognize that this was probably an awkward attempt to attack the credibility of Simmons’s testimony and to criticize the alternative nature of the defense—the theory that Simmons was not present at the start, but if he was, he acted in the heat of passion. Unfortunately, however, the way the prosecutor phrased and structured her argument transcended criticism of the theories of the defense and incorrectly conveyed to the jury that the legal “requirements” of heat of passion may only be proven through a defendant’s testimony and can only be established if a defendant declares that he or she was provoked, that his or her reason was obscured, that he or she was acting under the direct influence of the provocation, and that he or she acted rashly and without reflection. This, of course, is not the law; provocation can be established by evidence other than the defendant’s direct testimony. (See Barton, supra, 12 Cal.4th 186, 202-203 [observing that the record contained substantial evidence, some offered by the prosecution and some by the defense, from which heat of passion could have been found by the jury—even though the defendant testified the shooting was an accident and objected to involuntary manslaughter instructions]; Breverman, supra, 19 Cal.4th 142, 162-163 & fn. 10 [holding that substantial evidence may exist to support instructions on a lesser included offense even in the face of inconsistencies presented by the defense, for instance, that “substantial evidence of heat of passion and unreasonable self-defense may exist, and the duty to instruct sua sponte may therefore arise, even when the defendant claims that the killing was accidental, or that the states of mind on which these theories depend were absent”]; People v. Lee (1994) 28 Cal.App.4th 1724, 1732-1733 [evidence would have supported finding that provocation “played a part in inducing the attempted murder” where witnesses testified that the victim initiated the confrontation and followed the defendant to a parking lot, making challenging taunts and gestures, as he started to leave].) Here, the primary evidence that Simmons acted in the heat of passion came from the passenger, Prince, who testified to the change in Simmons’s demeanor when he spotted Sharine J. and Bell engaged in intimate activity in the back of her car and to Simmons’s statements and behavior as he pursued Sharine J. While the prosecutor was entitled to question, criticize, and argue about the value and import of that testimony, her argument was more an improper claim that Prince’s testimony was insufficient as a matter of law than a contention that the evidence as a whole established that Simmons was not acting in the heat of passion.
Simmons also argues that the prosecutor introduced an element in the provocation analysis that is absent from the law of provocation—an evaluation of whether the specific acts of the defendant were reasonable—when she said, “And finally, you have to consider[,] would an ordinary—an ordinary reasonable person have acted this way.” This statement was confusing. The “this way” could be a reference to the defendant’s specific actions, as Simmons argues, or, taken in context, it could be a reference to the objective test for heat of passion. The prosecutor had just said, “The next thing is that he acted rashly and without reflection,” a clear reference to the subjective test for heat of passion, and commented that the defendant did not assert that he had acted rashly and without reflection. Then, she told the jury, “And finally, you have to consider[,] would an ordinary—an ordinary reasonable person have acted this way.” Read in the context of the prosecutor’s argument, the phrase “this way” could also refer back to her comment about the defendant acting “rashly and without reflection,” a fair statement of the objective test for heat of passion. (Steele, supra, 27 Cal.4th at pp. 1252-1253.) Although the argument was ambiguous, we cannot label it misconduct.
The two potential interpretations of the prosecutor’s “acted this way” statement distinguish this case from Najera, supra, 138 Cal.App.4th at page 223, in which the prosecutor made a number of unmistakable references to what a reasonable person would do: “‘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?’” and “‘[T]he reasonable, prudent person standard... [is] based on conduct, what a reasonable person would do in a similar circumstance.’” (Brackets original, italics omitted.) The Najera court concluded that these statements were “incorrect. An 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.] 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.) The Najera court noted that despite some correct statements of the law, the overall “effect of the prosecutor’s statements was, however, to create confusion. Does the jury determine sudden quarrel or heat of passion based on the level of provocation or on the defendant’s conduct in response to the provocation?” (Id. at p. 224.) The jury here, like the Najera jury, was confused by the prosecutor’s argument, and questions submitted by both juries were similar. The Najera jury “submitted a written question to the trial court asking whether ‘[u]nder voluntary manslaughter rule does the reasonable person test apply not only to the “aroused passions” but also apply to the “conduct” of this person. [¶] The act resulting from the passion.’” (Ibid.) The jury here asked, “By ‘ordinary person,’ am I to consider what an ordinary person would likely do if he or she was put in similar circumstances or what an ordinary person would be capable of doing?” Here, as in Najera, the jury had been instructed to follow the court’s instructions in the event of any conflict between the instructions and the attorney’s comments on the law (CALCRIM No. 200), and the court not only redirected the jury to the relevant provocation instructions but also provided proper supplemental instructions on provocation and heat of passion to assist the jury in its determination. We presume that the jury followed the court’s instructions. (Najera, at p. 224.)
Based upon the prosecutor’s burden-shifting and her assertion that the defendant was restricted to only one method of proof in seeking to establish heat of passion, we conclude that the prosecutor committed misconduct in her final closing argument. We agree with Simmons that by failing to object to this misconduct, counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms. (In re Neely, supra, 6 Cal.4th at p. 908.)
Simmons has not shown, however, that counsel’s deficient performance in failing to object to this argument subjected him to prejudice. Here, as in Najera, supra, 138 Cal.App.4th at page 224, the jury clearly articulated its confusion, and the court properly instructed the jury to follow the court’s instructions and referred the jury to the relevant instructions. “The trial court correctly instructed the jury to follow the court’s instructions, not the attorneys’ description of the law, to the extent there was a conflict. We presume the jury followed that instruction. [Citation.]” (Ibid.) Furthermore, based on the ultimate findings of the jury, we are not convinced that there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to Simmons. (In re Neely, supra, 6 Cal.4th at p. 908.) We know, based on the questions posed by the jury to the trial court during deliberations, that the jury extensively considered the question of provocation. Ultimately, not only did the jury convict Simmons of attempted murder, but the jury also proceeded to find true beyond a reasonable doubt the additional special allegation that the attempted murder was willful, deliberate, and premeditated. On the subject of deliberation and premeditation, the jury had been instructed that “[a] decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated.” (CALCRIM No. 601.) With its finding on the special allegation, the jury concluded that it had been proven beyond a reasonable doubt that the attempted murder was deliberate and premeditated—that it was not committed rashly, impulsively, or without careful consideration—and that Simmons “carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.” (CALCRIM No. 601.) In light of the jury’s factual determination, which necessarily entailed an affirmative finding that Simmons did not act in the heat of passion, there is no reasonable probability that, but for counsel’s failure to object, the outcome would have been more favorable to Simmons. The failure to object to the prosecutor’s misconduct was harmless.
B. Failure to Request Additional Instructions
We identify neither a deficient performance nor any prejudice from the failure to request CALCRIM No. 522. CALCRIM No. 522 is primarily concerned with the effect of provocation on the degree of murder, although it could have been modified here to state that provocation may reduce an attempted murder to an attempted manslaughter. “The weight and significance of the provocation, if any, are for you to decide.” (CALCRIM No. 522.) The jury would also have been advised to “consider the provocation in deciding whether the defendant committed [attempted] murder or [attempted voluntary] manslaughter.” (Ibid.) But CALCRIM No. 603 generally covered these concepts: “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.” CALCRIM No. 603 extensively discussed provocation and its role in the heat of passion, and the jury was instructed that it was to decide “whether the defendant was provoked and whether the provocation was sufficient,” bearing in mind that “the People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to kill... in the heat of passion.” Moreover, while CALCRIM No. 522 was supported by the evidence and could properly have been given if it had been requested, we cannot ascertain anything essential that it would have added to the other instructions given under the facts, circumstances, and charges of this case; nor has Simmons established anything that this instruction would purportedly have conveyed that was not already expressed to the jury by the instructions that were given. Counsel’s failure to request it cannot have subjected Simmons to any prejudice.
We also discern no prejudice from the failure to request CALJIC No. 8.73, which reads, “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.” The court’s instruction on premeditation and deliberation informed the jury that “[a] decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated.” (CALCRIM No. 601.) This instruction inferentially informed the jury that provocation may preclude a defendant from acting with deliberation and premeditation, and the instructions as a whole provided the jury with sufficient guidance regarding how the evidence of provocation potentially related to the elements of the attempted murder charge and the allegation that it was willful, deliberate, and premeditated. Ultimately, the attempted murder verdict and true finding on the allegation that the crime was willful, deliberate, and premeditated indicate that the jury found defendant did not attempt to kill Sharine J. as a result of significant provocation because the jury determined that Simmons did not make a rash or impulsive decision to kill her without careful consideration. Simmons has not established a reasonable probability that if this instruction had been requested, the result would have been more favorable to him.
C. Defense Closing Argument
In a very brief, three-sentence argument, Simmons complains of his counsel’s closing argument. He argues that his trial counsel’s closing argument “failed to discuss the relation of the elements of the offenses described in the jury instructions to the defenses and facts of the case.” Simmons acknowledges, as he must, that “defense counsel did mention key concepts like willfulness, premeditation, deliberation, and provocation,” but claims that counsel “failed to adequately define these terms and then relate them to the elements of the charged offenses.”
Here, the record before us does not demonstrate objectively unreasonable or deficient conduct on the part of Simmons’s counsel. Counsel’s main goal at closing was to argue for a not guilty verdict: he argued that the “defense theory of the case” was that “Prince was the shooter.” After he extensively addressed this theory, counsel turned to his second argument: that even if one accepted the People’s theory that Simmons shot Sharine J. out of anger and jealousy, the evidence did not support a conviction for attempted murder. Simmons’s counsel discussed attempted voluntary manslaughter, focusing the jury on Simmons’s mental state. He argued, “Be careful when you read those jury instructions. The analysis actually: What is the person’s mental state when the act occurs? Because that’s the important element, and that’s where you get to the crime of attempted voluntary manslaughter.” Counsel continued, “The law says that, if the party is acting under the passion, the heat of passion, that’s what the instruction says. The crime is not attempted murder. The crime is, therefore, attempted voluntary manslaughter. [¶] And what is passion? Passion is simply acting under the suffering. That’s what it is. That you’re acting under the moment. I mean, that’s what it’s all about. [¶] If the person’s intent is not there to deliberate premeditation but they’re acting under this passion, this suffering, this anger—whatever emotion you want to call it—that’s not attempted murder.”
Simmons’s counsel ran through the evidence that Simmons acted in a heat of passion: before encountering Sharine J. and Bell, Simmons was acting normally. Then, counsel reminded the jury, Prince said that they saw Sharine J. and Bell having sex, and Prince said “that the defendant appeared to be hurt, angry, betrayed. He said he was driving fast, running lights, mumbling. He was talking to himself, trying to catch up to the other car. [¶] Prince says that he was concerned. They were running red lights. He was afraid—he was afraid he will be T-boned or T-bone some other car. [¶] That—that the person’s demeanor changed. He talked about [how Simmons] would not respond to his concerns. It was like he was in a different zone. Like a different person.” Simmons’s counsel concluded his argument as follows: “I think the People’s theory, as laid out by [the prosecutor], at best shows an attempted voluntary manslaughter. It does not show an attempted murder.” Then counsel returned to his greater goal, securing a verdict of not guilty on the basis that Prince, not Simmons, was the shooter.
Simmons has not established any specific manner in which his trial counsel’s closing argument fell below an objective standard of reasonableness under prevailing professional norms. (In re Neely, supra, 6 Cal.4th at p. 908.) He has not established ineffective assistance of counsel here.
D. Cumulative Error
Simmons argues that the cumulative effect of his counsel’s multiple errors was to deprive him of effective assistance of counsel, requiring the reversal of his conviction. We have, however, found only one instance in which counsel’s performance fell below an objective standard of reasonableness: the failure to object during the prosecutor’s final argument. Cumulative error, therefore, does not apply here.
V. Sentence on Count 2
Simmons argues that under section 654 he could not be punished for both the attempted murder of Sharine J. and for shooting into an occupied vehicle, as the object of both offenses was to kill Sharine J. by shooting her. Although Simmons argues that the trial court made the factual finding that the only victim of count 2 was Sharine J., we do not so construe the trial court’s comments. The trial court expressed skepticism about the prosecutor’s argument that the sentence for shooting into an occupied vehicle should be consecutive because Simmons harbored an intent to harm more than one person and/or demonstrated conscious disregard for others in the area. The court stated that there could be reasonable doubt as to whether Simmons saw Bell or whether Bell was in the kill zone, and it therefore did not accept the prosecutor’s argument that consecutive sentences were warranted based on these purported distinct intents. The court, however, never made any finding that Bell was not in the car or that he was not a victim of the crime of shooting into an occupied vehicle (count 2).
Even accepting Simmons’s characterization of the trial court’s comments as indicating that the court believed that both criminal acts were motivated by a single intent, punishment for both crimes is authorized here by the multiple victim exception to section 654. The multiple victim exception to section 654 “allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.” (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631; see also People v. McFarland (1989) 47 Cal.3d 798, 803-804.) Both Sharine J. and Bell occupied the motor vehicle: although Simmons was not convicted of the attempted murder of Bell, there was no dispute at trial as to whether Bell was in the car. Simmons was properly punished for the crime of shooting at an occupied motor vehicle, the victims of which were Sharine J. and Bell, and for the attempted murder of Sharine J., because each crime involved at least one different victim. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1780-1785.)
VI. Other Sentencing Issues
Simmons argues that the trial court could not impose the upper term sentence on count 2 consistent with the Sixth Amendment. He also claims that resentencing is required on count 2 because the trial court neither stated in the record the facts and reasons on which it relied for imposing the upper term sentence nor gave defense counsel an opportunity to object to the proposed sentence, and he argues that one sentence enhancement should have been stricken or stayed.
A. Sixth Amendment
There was no Sixth Amendment error here. Simmons was sentenced in June 2008, well after the Legislature amended section 1170, subdivision (b) to remove the former presumption that the middle term would be imposed and also long after the California Supreme Court judicially reformed the former sentencing law to conform to the newly enacted sentencing law. (People v. Sandoval (2007) 41 Cal.4th 825, 849, 852.) Simmons was therefore not entitled to the imposition of the middle term. Although Simmons claims in his reply brief that this constitutes a violation of the ex post facto clause, this argument was rejected by the California Supreme Court in Sandoval. (Id. at pp. 853-857.)
B. Failure to State Reasons for Sentence
The trial court opened the sentencing discussion with an indication that it did not intend to “max [Simmons] out” despite the prosecution’s request for the imposition of a maximum sentence. The court heard from Sharine J., and then asked for argument as to whether to sentence consecutively or concurrently. The court articulated the concern that Simmons had lied to the court and that he had not been willing to accept responsibility, although the court also noted, “I know the court can look at that, but always find it a little difficult when someone says they’re innocent to penalize them when you say they’re not stepping up to responsibility even though I can use that as a factor.” The court then discussed a prior restraining order with defense counsel, told Simmons that it wished that he would “just man up and be honest with the court once,” and asked for the defense recommendation about the discretionary elements of sentencing.
Defense counsel tried to establish that Simmons was not lying, just that he was confused, and the court rejected that assertion: “Let’s put it like this. I asked him if he understood. I read it to him. I gave it to him, and he lied. That’s my perception. And my perception is that he’s a coward. My perception of him is that he—he does not have enough grit in himself as a human being to admit what he’s done wrong, and for sentencing that counts. And all the items pointed out in the People’s sentencing memorandum there’s nothing to mitigate anything that I’ve seen in this case, nothing even to his attitude at the present time.”
The court then called counsel up to sidebar for an off-the-record discussion of “what the court intends to do” and “how we get there from here.” Coming back on the record, the court expressed that it had been “concerned about how much time the court was going to give.” The court said that it had told counsel that “I agree with the prosecution that more than 25 years to life would be given, but the way that the sentencing structure is built I don’t believe that the defendant deserves in excess of 30 years to life. I understand the victim’s feelings, but despite the defendant not admitting that he just snapped that night, I think there’s substantial evidence that but for certain circumstances, not saying that he’s a bad guy, just not willing to stand up yet and be[] a man, so I’m going to give concurrent sentencing, but we have to determine the issue of restitution.”
The court asked for evidence concerning restitution, then proceeded to announce the sentence. The court consulted defense counsel about the appropriate number of custody credits, terminated Simmons’s probation in another matter, advised Simmons of his right to appeal, and remanded him into custody with a wish of good luck. That concluded the hearing.
The trial court improperly failed to state on the record its reasons for selecting the upper term on count 2. (§ 1170, subds. (b) & (c).) Although ordinarily the failure to object to a deficient statement of reasons at the sentencing constitutes a forfeiture of that objection (People v. Scott (1994) 9 Cal.4th 331, 351), this rule does not apply when “the trial court fails to give the parties any meaningful opportunity to object.” (People v. Gonzalez (2003) 31 Cal.4th 745, 752 [“The parties are given an adequate opportunity to seek such clarifications or changes if, at anytime during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing”].) Here, although the court solicited input before selecting a sentence, the record does not indicate that counsel was given an opportunity to object to the sentence in open court. Instead, the court proceeded straight from its announcement of the sentence to custody credit calculations, probation termination, and advisements, then concluded the hearing without ever pausing for argument from counsel. The Scott waiver rule, therefore, does not apply.
When the sentencing court fails to state its reasons for a sentencing choice, “remand for resentencing is not automatic; we are to reverse the sentence only if ‘it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.’ [Citations.]” (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684.) Simmons has not established that there is any reasonable probability that the trial court would have imposed the midterm sentence if the court had stated its reasons for the upper term on the record. Simmons does refer to the trial court’s statement immediately before pronouncing sentence that the court believed that a sentence of more than 30 years to life would be excessive as evidence that the court purportedly meant to select the midterm, but that statement was made to explain why the court selected concurrent sentencing—resulting in a sentence of approximately 30 years to life (seven years plus 25 years to life)—rather than the much longer sentence that would have resulted if the court had chosen to run the sentence on count 2 consecutive to the life sentence plus 25 years-to-life enhancement term on count 1. Although the trial court did err by not expressly stating its reasons for its selection of the upper term on the record, we discern no reasonable probability that an outcome more favorable to Simmons would have been reached if the court had set forth its reasons for choosing the upper term. Resentencing is not warranted here.
C. Sentence Enhancement Under Section 12022.7, Subdivision (e)
On count 2, the trial court imposed a sentence of seven years, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), plus an additional five years under section 12022.7, subdivision (e). At all times relevant to this proceeding, however, section 12022.53, subdivision (f) has provided that “An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).” The trial court, therefore, could not properly impose the section 12022.7, subdivision (e) enhancement in addition to the section 12022.53, subdivision (d) enhancement on count 2. The enhancement under section 12022.7, subdivision (e) must be stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 [after trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, remaining enhancements that have been found true but may not be imposed under section 12022.53, subdivision (f) must be imposed and then stayed].) We order the abstract of judgment modified accordingly.
DISPOSITION
The judgment is modified to stay the sentence enhancement imposed on count 2 under Penal Code section 12022.7, subdivision (e). The clerk of the superior court is then directed to prepare a corrected abstract of judgment and to forward a certified copy of the abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.