Opinion
D073123
04-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN C. SMITH, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Fraser and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF 1307326) APPEAL from a judgment of the Superior Court of Riverside County, Michael B. Donner, Judge. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Fraser and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Justin C. Smith of second degree murder. (Pen. Code, § 187, subd. (a).) The jury also found true that Smith personally used a deadly weapon within the meaning of sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). The court sentenced Smith to prison for a determinative term of one year for the use of a deadly weapon and an indeterminate term of 15 years to life for second degree murder.
Statutory references are to the Penal Code unless otherwise specified.
Smith appeals, contending the prosecutor committed prejudicial misconduct in making certain arguments to the jury warranting reversal. We affirm.
FACTUAL BACKGROUND
Prosecution
Riverside County Sheriff's deputies responded to a call reporting domestic violence or a disturbance at a home in Menifee, shared by Darlene Flynn and Smith. After arriving at the home, one of the deputies knocked on the front door, but no one answered. The deputy looked through a window and saw Smith in the garage. Smith would not answer the door. The deputies forced entry into the home, but did not find anyone inside. An officer flying above the home in a helicopter advised that there was a woman floating in the pool in the backyard, wearing only a T-shirt and underwear. She appeared to be dead. A deputy found Smith about an hour later, in a field less than a mile away from the home.
Flynn owned the house. Smith, who had been in a romantic relationship with Flynn for about five years, lived at the house with Flynn. During their relationship, Flynn had kicked Smith out of her house a few times, but always ended up allowing Smith to return.
Smith had killed Flynn by repeatedly hitting her with a wooden baseball bat. Flynn had multiple injuries on her face and head, torso, extremities, and a small injury on her neck. Her skull was fractured. She had defensive wounds indicated by a broken right forearm as well as large bruises on her right forearm, upper arm, hands, and left shin.
Smith struck Flynn at least eight times. Her body was face down, floating in the pool. A wooden baseball bat, broken in two, was lying on the ground near the pool.
At trial, Flynn's sister and friends testified about their observations of Flynn's relationship with Smith, including Flynn's statements to them about Smith's abusive behavior. These witnesses testified that they each told Flynn multiple times to get Smith out of the house and to call the police on him.
Flynn and her friends often discussed her fights with Smith. Flynn had described instances of physical abuse as well as verbal abuse. Flynn told her sister that Smith had become more aggressive in the month before the murder. During that time, Flynn talked to Smith about his moving out of her house. Flynn told her sister of a plan to get Smith out of her house. Flynn said she was trying to sell a rental home and a truck, and then she would have enough money to help Smith get his own place to live. Flynn did not want Smith to be homeless.
Kathlene Houser last spoke with Flynn on July 20, 2013. Smith kept talking to Flynn while Flynn was on the phone with Houser. He was "mocking her every word." Flynn told Smith repeatedly to leave the room so that she could hear her friend. Finally, she screamed at him to get out of the room and leave her alone. Smith said that if Flynn ever screamed at him again, he would kill her. Flynn told Houser that Smith mocked her all the time while she was on the phone, and Houser had heard Smith mocking Flynn in other phone calls with her.
The night before Flynn was killed, she told her sister that she had fallen again and was clumsy. Her sister asked Flynn if Smith was still hurting her. Flynn replied in the affirmative. Flynn thought she would have enough money in a week to move Smith out. Flynn was concerned that if she called the police, Smith would go to jail, and Flynn did not want Smith in jail for a long time.
Flynn did call the police once about Smith, after Smith forged her name on the pink slip to her car and sold it without her knowledge or consent. Smith was arrested and placed in custody. But Flynn was afraid that Smith would be hurt in jail; thus, she bailed him out. Before bailing him out, Flynn told Smith she would bail him out only if he signed his truck over to her because of all the money that he owed her for rent and expenses.
Defense
Smith testified in his own defense. He admitted to killing Flynn with a baseball bat after arguing with her the night before and in the morning before he killed her. He said that he acted in a fit of rage after being humiliated by Flynn. He explained that he had "blacked out," and was in "a blur" or a "fog" when hitting her head with the bat.
Smith said that he and Flynn had argued the night before the killing over a small sum of money that Smith owed Flynn. Flynn had loaned him $50 to buy gas so Smith could help a friend move (he was to be paid $50 for the move). She expected to be repaid that night, but Smith had only $20 when he returned. Flynn was very angry and yelled at Smith. Flynn insulted Smith as she had many times in the past, saying he was stupid, unreliable, a liar, and a thief. Smith responded by calling her a "bitch," and told her that he could not stand her. Smith was frustrated and angry that Flynn would not accept his response that he would give her the rest of the money on another day. Eventually Smith went to bed, and Flynn and Smith slept together in the same bed that night.
The next morning, Smith woke up first and engaged in his typical activities. When Flynn got up, she went to her office, avoiding Smith. Smith testified that he did not believe he had done anything wrong and could not understand why Flynn was so upset about $50 when Smith had said he would pay her back. Nonetheless, he went into her office, claiming he wanted to apologize for making her angry the previous night. Flynn told him to leave.
Unfortunately, the two resumed the same argument regarding the $50. Smith said he tried to "plead" with Flynn until he got irritated that Flynn would not accept his explanation. He then started cursing her. Smith testified that Flynn pushed him down the hallway, pummeling his chest with her fists. While Smith moved away from Flynn, he still tried to "plead with her" to no avail.
Smith went outside and walked around the house. When he reached the backyard, Flynn was sitting in a chair on the pool deck with her phone, mumbling and laughing. Smith could not hear what she said, but he believed that she was making nasty comments about him. Smith picked up a wooden bat that was kept for protection. He then moved toward Flynn. He testified that he "lost it," it "was all a blur," he lost control, and "snapped." Flynn testified that he did not know what happened to Flynn after he hit her. The next thing he remembered was walking, before he was stopped by a deputy. When the deputy arrested him, Smith knew something bad had happened, but he "couldn't put [his] mind around it."
Smith said that it was difficult for him to absorb information and learn new things due to a brain injury he had when he was four years old. A horse had kicked him in the upper left temple. His ability to retain information was limited. He was depressed. Smith knew that his learning disability contributed to his inability to keep a job, his frustration and anger, and his limited ability to control his emotions.
Smith also called Flynn's ex-husbands, Clifford Shank and William Harris, as witnesses for the defense. Shank, who was married to Flynn for 11 months in 1999, testified that Smith was "very controlling."
Harris, who was married to Flynn for about nine months in 1996 or 1997, testified that Flynn was a controlling person and often became angry during arguments. Harris explained that Flynn often belittled him, calling him names like "idiot, stupid, lazy, . . . [and] jerk."
In addition, Smith called Dr. Dylan Harwood, a clinical neurological psychologist, as a witness, who testified that when Smith was four, he received a traumatic brain injury that damaged the frontal, temporal and parietal lobes of his brain. These parts of the brain impact attention, impulse control, cognitive ability, memory, and language functioning. Harwood tested Smith's I.Q. at 72, which reflects borderline impairment. Harwood opined that the damage caused by the traumatic brain injury increased Smith's frustration in response to Flynn's insults. In addition, Smith's frustration level was increased by the stressful environment of frequent fighting with Flynn and financial insecurity. Due to the stressful environment and Smith's brain deficits, Smith's executive functioning was likely impaired, and he likely acted without thinking when he killed Flynn.
In explaining this impairment, Harwood testified that Smith has "difficulties with thinking through his actions. He has difficulty with thinking about what the consequences will be. He has difficulties with impulsivity, which is a behavioral manifestation of executive functioning."
During cross-examination, Harwood admitted that he based his analysis of Smith's brain injury and resulting deficits on a report about Smith's CT brain scan in 1988, soon after the injury occurred, when Smith was four. However, Harwood did not look at that brain scan, and he did not request a current brain scan to review. Additionally, Harwood had never testified as an expert on traumatic brain injury and had not authored any articles or made any scholarly presentations regarding traumatic brain injury.
Smith's Postarrest Interviews
During the prosecutor's cross-examination of Smith, recordings of law enforcement interviews with Smith were played for the jury. For example, Deputy Robbie Macalino interviewed Smith an hour or two after Flynn was killed. Smith told Macalino that he had "blacked out," and was shocked and scared when he came to. He explained the fight about $50. According to Smith, the next day Flynn continued yelling and told him to get out of the house. In response, he blacked out. He had nowhere to go and no money. Flynn was helping him out and allowed him to stay with her, but constantly yelled at him.
The morning of the killing, Smith said that Flynn pushed him toward the front door and told him to get out. She went outside to text her friends. Smith thought she was texting about him. Smith went outside to calm her down. She started pushing him, and he blacked out. After being treated like "crap" and pushed, he picked up a bat, ran up to her, and hit her with it. Flynn was not looking in his direction and did not see him coming. She had her head down, looking down at the phone in her lap, texting and laughing. He hit her in the head until the bat broke. Flynn fell into the pool after Smith hit her. He saw her in the swimming pool, bleeding, but never checked on her condition. Smith said he went inside for about 20 minutes, scared and in shock, then started walking away.
When Macalino asked Smith why he beat Flynn, Smith said that after so many times over the years of Flynn yelling at him for simple things like leaving dirty dishes in the sink overnight, or $50 in this case, he "snapped" when she continued yelling at him that morning. He picked up the bat out of frustration and anger. Previously, when he was frustrated and angry, he went outside and banged the bat on the ground a few times.
The jury also was shown a video recording of Riverside County Sheriff's investigators Jeffrey Stites and James Peters interviewing Smith later on the day of Flynn's death. Smith again explained the fight about $50, said that Flynn belittled him, and told him to leave. He later "blacked out," picked up the baseball bat, and hit her. Smith said, "I just like, totally like, just blacked out. It was like a fog and I just, the anger and the rage and everything after for, after everything that I'd been through and stuff, it just—I don't—I couldn't tell you how many times [I hit her]." Smith said that he then went outside. Flynn followed him, and sat on the pool deck. Smith wanted to sit and talk with her, but Flynn would not listen. She texted her friends. Flynn again told Smith to get out because she did not want to see him anymore. At that point, Smith "just lost it."
Investigators Stites and Peters interviewed Smith again the next day. He gave a similar description of the killing. He said that when he walked up to Flynn with the bat, Flynn had her head down, looking down at her phone and laughing. Smith thought she was texting and saying mean, hateful things to make him angry. Smith said that he stopped and thought about what he was doing as he walked up to Flynn with the bat and loosened his grip on the bat. But then he became enraged and "blacked out" when she kept "mumbling and saying shit and laughing."
After Smith hit her on the head several times, Flynn was on the ground, pushing herself up. Smith continued to batter her in the head repeatedly. Flynn was standing up when Smith hit her for the last time, breaking the bat and sending her into the water. Smith never looked in the pool to see if there were any signs of life from Flynn. He thought she was probably already dead when she hit the water. Smith hosed off the deck to get rid of the blood on it.
DISCUSSION
I
PROSECUTORIAL MISCONDUCT
A. Smith's Contentions
Smith's contends that we must reverse the judgment because it is not possible to determine from the record that the verdict was not based on a legally inaccurate theory. Specifically, Smith asserts the prosecutor put forth the following legally inaccurate theories to convict him of second degree murder: (1) the jury could only find Smith acted in the heat of passion if it found that Flynn had started every argument they had during their five-year relationship; (2) verbal abuse cannot constitute provocation; and (3) the jury could only find Smith acted in the heat of passion if an average person in Smith's position would have reacted to the provocation by killing Flynn. Although Smith does not claim the trial court improperly instructed the jury, he insists that the instructions provided to the jury did not prevent it from convicting him on the prosecutor's theory that Smith acted in the heat of passion only if Flynn had started every argument during their relationship. Because of this alleged shortcoming, Smith contends we cannot determine, on the record before us, that the verdict was not based on the legally inadequate theory promoted by the prosecutor. As such, he argues the judgment must be reversed.
In the alternative, Smith asserts his trial counsel was prejudicially ineffective because she did not object to certain portions of the prosecutor's closing argument.
B. Background
It was undisputed at trial that Smith killed Flynn by hitting her with a baseball bat. The primary contested issue was whether Smith did so in the heat of passion such that he would be convicted for manslaughter instead of murder. "The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively." (People v. Steele (2002) 27 Cal.4th 1230, 1252.) " ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " ' " (People v. Moye (2009) 47 Cal.4th 537, 549.) "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." (Id. at p. 550.) Since the test of sufficient provocation is an objective one, a defendant's particular susceptibilities are irrelevant. (People v. Oropeza (2007) 151 Cal.App.4th 73, 83.) " '[N]o 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.' " (Steele, supra, at pp. 1252-1253.)
At trial, among other instructions, the court instructed the jury, per a modified version of CALCRIM No. 570, regarding heat of passion as follows:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if 1) the defendant was provoked; 2) as a result of the provocation, the defendant acted rationally and under the influence of intense emotion and obscured his reasoning or judgment; and 3) the provocation would have caused a person of average disposition to act rationally and without due deliberation, that is from compassion rather from judgment. Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
"In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I've 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. Words alone may be sufficient provocation. It is not enough that the defendant simply was provoked.
"The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather from judgment.
"It is not necessary that the provocation be such as would cause a person of average disposition to kill. If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not referred -- I'm sorry -- is not reduced to voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as 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 murder."
Not surprisingly, during closing argument, the prosecutor asserted Smith did not kill Flynn during the heat of passion, but instead, focused the jury on the theory that Smith made a conscious decision to kill Flynn. The prosecutor pointed out that three days before Flynn's death, Smith had stated that he would kill Flynn if "she open[ed] her mouth one more time." The prosecutor also emphasized that Smith decided to kill Flynn as he walked to pick up the bat. And the prosecutor stated that Smith thought about killing Flynn a third time when he first grabbed the bat. Then the prosecutor argued Smith thought of killing Flynn a fourth time when, bat in hand, he looked at her and decided to take her life. The final time Smith thought about killing Flynn was when he raised the bat and moved toward her.
The prosecutor also reminded the jury of evidence at trial showing that Smith had been violent toward Flynn in the past, but stopped short of killing her.
During closing argument, the prosecutor addressed whether Smith acted under a heat of passion. Thus, she emphasized that at the time she was killed, Flynn was on her cell phone, and Smith did not know what she was texting or saying. However, Smith assumed that Flynn was mocking him to manufacture a justification for killing her. The prosecutor also reminded the jury that the dispute over the $50 ended the previous night, but Smith tried to continue the fight the day of Flynn's death. Further, the prosecutor pointed out that Flynn did not engage Smith on the day in question, but Smith began the argument anew.
In response, during her closing argument, Smith's attorney emphasized that the killing of Flynn occurred during the heat of passion. Therefore, she pointed out that the fact that Smith hit Flynn multiple times with a bat in the backyard in the afternoon proved that he was acting under the heat of passion. Smith's attorney argued that Smith "unleash[ed his] pent up emotion" after experiencing five years of mental and emotional abuse from Flynn in which he lost his "self-identity . . . self-esteem . . . self-confidence." Defense counsel also asserted that Smith "went up to [Flynn] and . . . blacked out totally[]" after watching Flynn smile, laugh and say "mean, hateful things to try to" upset him while she was texting.
Smith's attorney also discussed the legal requirements for heat of passion. She explained to the jury that heat of passion requires provocation. She argued, "So that's the first thing you need, all right, that he was actually provoked. And the mountains of evidence are tremendous. We know that he was provoked. He was provoked continuously. He was provoked that day. He was provoked immediately when he picked up that bat."
Defense counsel then explained, for heat of passion, Flynn's "provocative behavior would have caused a person of average disposition to act rashly and without due deliberation, which means from passion, rather than from judgment." She further clarified that "the reaction itself has no legal meaning. So whether the reaction was walking away, or slamming the door, or cursing, calling her those words that Mr. Smith called her, makes no [difference]."
Smith's attorney finished her closing argument by focusing on the prosecution's burden to prove that Smith did not kill out of a heat of passion. Defense counsel argued:
"And I want to leave you with this: Everybody's experienced strong emotion. Right? Good, bad, sometimes you cry at weddings. Sometimes you don't even know why you're crying. You know, people experience emotional adrenalin rushes. Someone's hurt or injured. We've heard all about the person that lifts the car off the -- off the child, some little weakling person that otherwise couldn't have done it. That's emotion. That's strong emotion, intense emotion. And there's others. There's anger. There's rage. There's fear. There's shame.
"I want you to know that the burden is on the prosecution to prove that this is not a heat of passion case, so it's not our responsibility or our burden to prove to you that it is. She has to prove to you that it's not. And not just convince you by any standard, but convince you beyond a reasonable doubt.
"There's no reasonable way for this to be heat of passion has to be your conclusion before Mr. Smith is guilty of murder. There's no way she can do that. And it's not her fault. The facts are what they are. This is, in fact, a voluntary manslaughter case.
And I understand she'll make the argument to try to say that maybe there's some other evidence of premeditation and deliberation that I haven't talked about, but there is none. There's nothing else on the table. You've seen it, and you've heard it all, and you know -- you know that Mr. Smith did not act out of some logical thinking process. You know that this was an explosive emotional moment for him.
"So if she fails to prove it, which she will again, no disrespect, it's not her fault. It's the facts of the case -- then the verdict is that you must find him not guilty of murder.
"Now, everybody in this room knows that Mr. Smith did something horribly wrong, horribly wrong. And Ms. Smith and I are asking you to hold him accountable, and the way that you do that is you convict him of voluntary manslaughter because, frankly, that's what he did.
"Now, I can't think of a more perfect fit for voluntary manslaughter facts, heat of passion than this case. And you know, again -- I don't know -- maybe [the prosecutor] will think there's others, but that's okay. So what if there are. This, these facts, and this case is a perfect heat of passion legal fit. It doesn't get any closer than this."
During the prosecutor's rebuttal closing argument, Smith's attorney objected that the prosecutor was misstating the law regarding Smith thinking about the consequences of his actions. Although the court overruled the objection, it admonished the jury as follows: "Ladies and gentlemen, I've previously instructed you. If you believe that the attorneys have said something that's contrary to the law, it's what I said the law is and what you'll have in the jury instructions as the law in this case. Also, it is a correct statement that nothing that the attorneys say is evidence."
Immediately, after the court's admonishment, the prosecutor reiterated that what the attorneys "say the law is . . . it's not." The prosecutor then continued to refute Smith's attorney's claim that Smith killed Flynn under the heat of passion. In doing so, the prosecutor focused on provocation:
"So the very first element was that the defendant was provoked. Okay. So you would have to believe that [Flynn] provoked everything about this fight, every situation, either this fight or for the past five years.
"We know that's not true. Defendant himself got on the stand and said he called her the 'C' word. He called her a bitch. He had called her every name in the book. They were equally volatile and nasty. So he doesn't get to come in and say to all of you I was provoked. I'm the victim. She deserved to be killed. It doesn't work like that. The elements are clear, the defendant was provoked. And he wasn't in this case."
The prosecutor moved on to discuss Smith's reaction to the alleged provocation. In discussing Smith's reaction, the prosecutor argued, "That the person with average disposition in this situation would act as rashly as the defendant did without deliberation, that the average person would get so enraged by that same fight that this would be their response." Smith's attorney objected to this comment by the prosecutor, claiming the prosecutor was misstating the law. Although the court overruled the objection, it explained, "I've already instructed the jury. It's what they're instructed in terms of the jury instructions, what I've read to them. [¶] If the attorneys disagree on what the law says, ladies and gentlemen, it's what the instructions related to you. That's the law. That would be the law that governs this case."
The prosecutor then emphasized the elements of heat of passion and why they were not satisfied by the evidence offered at trial. She summarized the elements of murder and explained how the evidence supported a murder conviction. When the prosecutor concluded her rebuttal closing argument, the court again admonished the jury as follows:
"All right. Ladies and gentlemen, I want to repeat something again. The remarks of counsel, both counsel, in closing arguments, they're not evidence. And the law -- I've instructed you on the law. Counsel's statements regarding the law, their interpretation of it, doesn't necessarily represent the law. You have the law as I've given you in the instructions."
C. Analysis
When a jury is presented with a legally invalid theory to support a charge, such as a theory which " 'fails to come within the statutory definition of the crime' " reversal generally is required unless " 'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.' " (People v. Perez (2005) 35 Cal.4th 1219, 1233, quoting People v. Guiton (1993) 4 Cal.4th 1116, 1128, 1130 (Guiton).) "Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place." (Id. at p. 1131.) When, however, the court's instructions correctly state the law, but the prosecutor arguably misstates the law during closing argument, the error is prosecutorial error only, not trial court or instructional error, and the defense forfeits the claim of prosecutorial error on appeal unless it timely objects to the error in the trial court. (People v. Morales (2001) 25 Cal.4th 34, 43-44 (Morales).)
Here, Smith maintains that the prosecution advanced legally inaccurate theories during closing argument. Relying on Guiton, supra, 4 Cal.4th 1116 and People v. Green (1980) 27 Cal.3d 1 (Green), Smith contends that we must reverse the judgment because it is not possible to determine from the record that the verdict was not based on an improper theory. We find Guiton and Green are not instructive here.
In Morales, supra, 25 Cal.4th 34, our high court explained that both Guiton, supra, 4 Cal.4th 1116 and Green, supra, 27 Cal.3d 1, involved cases in which "the court presented the state's case to the jury on an erroneous legal theory or theories. In Green, the instructions were deficient . . . . " (Morales, supra, at p. 43.) "In Guiton, too, a theory unsupported by evidence was presented to the jury in the very trying of the case—[the defendant] was charged with selling cocaine despite a lack of evidence that he engaged in this conduct. Again, the trial court should have modified the instructions in light of this fact." (Morales, supra, at p. 43.) "In this case, by contrast, the court did not present to the jury a case that was premised on a legally incorrect theory." (Ibid.) Here, similarly, Smith does not claim that the trial court improperly instructed the jury. In other words, the trial court was not involved in the misstatement.
In his reply brief, Smith maintains that instructional error is not necessary to invoke Guiton, supra, 4 Cal.4th 1116 or Green, supra, 27 Cal.3d 1. Instead, he claims the prosecutor argued a legally inadequate theory that was not precluded by the jury instructions. As such, Smith insists that reversal is required because it is impossible to ascertain whether the murder conviction was based on the legally insufficient theory argued by the prosecutor as the trial court did nothing to disabuse the jury of that theory. (See People v. Morgan (2007) 42 Cal.4th 593, 613.) We disagree.
Smith's argument is contingent on his assertion that the prosecutor told the jury, during rebuttal closing argument, that it can only find that Smith acted under the heat of passion if Flynn provoked every fight for the past five years. However, Smith did not object to this portion of the prosecutor's closing argument, and thus, forfeited any objection to it. (Morales, supra, 25 Cal.4th at p. 44 ["Defendant made no objection to the prosecutor's remarks and thus has waived his claim."]; accord People v. Nguyen (2015) 61 Cal.4th 1015, 1046-1047.) To avoid forfeiture, Smith argues that any objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Thornton (2007) 41 Cal.4th 391, 460 (Thornton).) In support of his position and relying on Thornton, he points out that the trial court overruled his objections to the prosecutor's "improper arguments," and as such, an objection to the prosecutor's statement that the jury would have to believe Flynn started every fight during the couple's five-year relationship to find provocation would have been futile. We are not persuaded.
Smith first objected that the prosecutor misstated the law during the rebuttal closing argument when the prosecutor stated, "the law doesn't require [Smith] to think about the consequences" of forging Flynn's signature on a Department of Motor Vehicles form. The court questioned the objection, and Smith's attorney responded that the argument misstated "the law regarding first degree murder." The court overruled the objection, noting that it "didn't hear a comment about first degree murder."
Smith's attorney next objected that the prosecutor misstated the law after the prosecutor stated that Smith had "to know what he was doing, that he was intending to kill her" but "[c]onsequences are something else[,] . . . what the judge decides." The court overruled the objection and admonished the jury that the law is not what the attorneys say it is, but as the court instructed the jury.
Later during the rebuttal closing argument, the prosecutor discussed provocation and made the statement of which Smith now complains. However, there was no objection at trial. In contrast, after the challenged statement was made, Smith's counsel objected three other times to portions of the rebuttal closing argument, two of which were based on the claim the prosecutor was misstating the law. Although the court overruled those objections, it admonished the jury after one objection as well as at the end of the closing. The purpose of those admonitions was to inform the jurors that they had been instructed on the law, and the attorneys' respective interpretations of the law were not necessarily accurate.
The record clearly shows that Smith's counsel objected when she believed the prosecutor misstated the law. Even with the court repeatedly overruling the objections, Smith's counsel was not deterred. Moreover, although the court overruled the objections, it admonished the jury multiple times to follow the law as instructed. Thus, we are not convinced that had Smith's counsel's objected to the prosecutor's argument about provocation, it would have been futile.
In addition, Thornton, supra, 41 Cal.4th 391 does not alter our analysis here. In that case, the court found no forfeiture on appeal where the defendant objected to the prosecutor's first remark as an improper remark, but not his second, which was made immediately after the first. The court concluded that any objection to the second remark would have been futile. It reasoned that both remarks touched on the defendant's lack of sincere and genuine remorse, and the second followed immediately after the trial court overruled the defendant's objection to the first. (Id. at p. 460.) No such analogous facts exist here. Smith objected to the prosecutor's statement about Smith not needing to appreciate the consequences of his actions (e.g., he could be tried for murder). The court overruled Smith's objection to this statement. Much later in the rebuttal closing argument, the prosecutor made the statement about provocation that Smith now challenges here. There was no objection. The challenged statement was not related to the previous objected to statement, unlike the two related remarks in Thornton. Further, the challenged statement here was not made right after the objected to statement, which also differs from the remarks in Thornton. Accordingly, Thornton is not helpful to Smith.
The defendant complained "about the prosecutor's comments that a defendant seeking mercy should at least present evidence that he or she 'is sincerely and genuinely remorseful' and that [the] defendant did not show 'that within a short amount of time he was sincerely and genuinely remorseful about what he did.' " (Thornton, supra, 41 Cal.4th at p. 460.)
Moreover, even if we were to find that Smith did not forfeit this claim, we would conclude Smith's challenge is without merit. Smith contends the prosecutor argued the jury could base a finding that he was provoked on two different theories: (1) Flynn started the argument with Smith that led to Smith killing her with a baseball bat; or (2) Flynn started every argument with Smith during their five-year relationship. Smith further argues that the second theory is not legally accurate, and we cannot determine on the record before us that the jury did not use this legally accurate theory to disregard Smith's argument that he killed Flynn during the heat of passion. Thus, Smith reasons that, under Guiton, supra, 4 Cal.4th 1116 and Green, supra, 27 Cal.3d 1, we must reverse the conviction. We disagree.
The primary flaw in Smith's argument involves his interpretation of the prosecutor's statement. We do not read the prosecutor's statement as informing the jury it could only find provocation under two scenarios, one requiring that Flynn had started every argument the couple had during their five-year relationship. Instead, we view the subject portion of the rebuttal closing argument as a response to defense counsel's closing where she argued that Flynn had destroyed Smith's "self-identity[,]" "self-confidence[,]" "self-esteem[,]" and targeted "Smith's emotional jugular over, and over again for five years." Put differently, Smith's counsel painted a picture where Flynn constantly emotionally abused Smith for five years.
In response, the prosecutor disagreed with defense counsel. In doing so, the prosecutor argued, "So you would have to believe that [Flynn] provoked everything about this fight, every situation, either this fight or for the past five years." At first glance, Smith's interpretation of the prosecutor's statement appears plausible; however, the prosecutor immediately put her words into context in challenging defense counsel's narrative that Flynn, and Flynn alone, verbally abused Smith for five years. The prosecutor stated: "We know that's not true. Defendant himself got on the stand and said he called her the 'C' word. He called her a bitch. He had called her every name in the book. They were equally volatile and nasty."
The prosecutor's remarks must be reviewed in the context of her whole argument. (People v. Marshall (1996) 13 Cal.4th 799, 831.) Here, the prosecutor was not putting forth a legally inaccurate theory on which the jury could convict Smith. Instead, the prosecutor was arguing, based on the evidence adduced at trial, that Smith was not provoked into killing Flynn under the heat of passion. Although the prosecutor's comments may have been somewhat inartfully stated, we find nothing troubling about them. (People v. Wharton (1991) 53 Cal.3d 522, 567 [" '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' "]; People v. Bryden (1998) 63 Cal.App.4th 159, 184 ["Rebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel."].) Simply put, we conclude there is no basis on which to apply Guiton, supra, 4 Cal.4th 1116 and Green, supra, 27 Cal.3d 1 here. Consequently, reversal is not warranted under those cases.
Having determined that Guiton, supra, 4 Cal.4th 1116 and Green, supra, 27 Cal.3d 1 do not apply, we observe this case does not involve instructional or judicial error. If there is error to be found, it involves prosecutorial misconduct. (Morales, supra, 25 Cal.4th at pp. 43-44.)
A prosecutor's conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution "when it infects the trial with such unfairness as to make the conviction a denial of due process." (Morales, supra, 25 Cal.4th at p. 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) "In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm." (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
Smith maintains the prosecutor misstated the law three times during the rebuttal closing argument. First, he contends the prosecutor told the jury that it had to find Smith had started every argument with Flynn during their five-year relationship to conclude Smith was provoked. Second, Smith claims the prosecutor argued verbal abuse cannot constitute provocation. Third, he asserts that the prosecutor wrongly informed the jury that it could only find Smith acted in the heat of passion if an average person in Smith's position would have reacted to the provocation by killing Flynn.
We reject Smith's argument about the alleged first misstatement for the reasons discussed above.
Regarding the second statement, Smith does not cite to any portion of the record where the prosecutor stated that verbal abuse cannot constitute provocation. At best, Smith points us toward the following argument made by the prosecutor:
"[Flynn] repeatedly told [Smith], get out, leave me alone. She just wanted to be left alone. She wasn't provoking him in this fight. [¶] Could they both have been saying nasty things? Could she have been calling him a retard? Could he have been calling her a bitch? Probably. [¶] At some point, after you've gone to bed the next morning, and the person who you're annoyed with keeps browbeating you -- defendant came into her office -- who cares if she calls him a name? It's not provocation."
As a threshold matter, Smith did not object to this portion of the rebuttal closing argument; therefore, he has forfeited any claim of prosecutorial misconduct as to these statements. (Morales, supra, 25 Cal.4th at pp. 43-44.) Further, even if he had not forfeited his challenge here, we would determine that the prosecutor did not misstate the law. No where did the prosecutor state that verbal abuse cannot constitute provocation. The prosecutor merely argued that the evidence did not support a finding that Smith was provoked: "So how to you claim provocation? It's not there. The fact themselves are not there." The prosecutor was not making a legal argument. She was commenting on the evidence. (People v. Reyes (2016) 246 Cal.App.4th 62, 74 ["Prosecutors may make vigorous arguments and fairly comment on the evidence; they have broad discretion to argue inferences and deductions from the evidence to the jury."].) Moreover, there is no dispute that the trial court instructed the jury that words alone may be sufficient provocation.
Finally, Smith insists the prosecutor misstated the law by arguing that the jury could only find Smith acted in the heat of passion if an average person in Smith's position would have reacted the same way. To this end, Smith claims the following statement by the prosecution misstated the law: "That the person with average disposition in this situation would act as rashly as the defendant did without deliberation, that the average person would get so enraged by that same fight that this would be their response."
We agree with Smith that this is not a correct statement of the law. Heat of passion voluntary manslaughter requires that a person of average disposition would have reacted to the provocation with his reason and judgment obscured. (People v. Beltran (2013) 56 Cal.4th 935, 949.) "[P]rovocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured." (Ibid.)
However, the fact that the prosecutor misstated the law does not end our inquiry. Smith objected to this statement during the rebuttal closing argument. Although the court overruled the objection, it reminded the jury to follow the instructions, which correctly stated the law. And there is no argument that the court did not properly instruct the jury regarding heat of passion voluntary manslaughter. In fact, the court specifically instructed the jury relevant to this issue: "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 from judgment. [¶] It is not necessary that the provocation be such as would cause a person of average disposition to kill."
Further, in addition to admonishing the jury that the law was correctly stated in the jury instructions and was not what the attorneys argued it was, after the rebuttal closing argument concluded, the court again reminded the jury:
"All right. Ladies and gentlemen, I want to repeat something again. The remarks of counsel, both counsel, in closing arguments, they're not evidence. And the law -- I've instructed you on the law. Counsel's statements regarding the law, their interpretation of it, doesn't necessarily represent the law. You have the law as I've given you in the instructions."
We presume the jurors relied on the court's instructions, and not the argument of the prosecutor, in convicting Smith. (Morales, supra, 25 Cal.4th at p. 47 [" '[I]t should be noted that the jury, of course, could totally disregard all the arguments of counsel.' "; italics omitted]; People v. Scott (1988) 200 Cal.App.3d 1090, 1095 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions."].) This presumption recognizes that a jury " 'treat[s] the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' " (Morales, supra, at p. 47.)
Because the trial court emphasized to the jury before, during, and after closing argument that it was to rely solely on the court's instructions to the extent they varied from the law argued by the attorneys, and because the trial court properly instructed the jury regarding provocation and heat of passion for purposes of voluntary manslaughter, we conclude any misstatements of law by the prosecutor regarding a reasonable person's response to the provocation were cured by the trial court in its instructions to the jury and, to a lesser extent, by Smith's own counsel during her closing. Accordingly, Smith has not shown, and cannot demonstrate, that any assumed misstatement of the law by the prosecutor "infect[ed] the trial with such unfairness as to make [his] conviction[s] a denial of due process." (Morales, supra, 25 Cal.4th at p. 44.)
Although Smith alternatively contends he was denied effective assistance of counsel when his counsel did not object to certain portions of the rebuttal closing argument, we conclude Smith has not satisfied his burden to show prejudice (i.e., that it is reasonably probable he would have obtained a more favorable result had his counsel objected). (Strickland v. Washington (1984) 466 U.S. 668, 692-693.) Although we determined that Smith forfeited certain claims by not objecting below, we nevertheless addressed his arguments on the merits and found his claim of prejudice wanting. --------
DISPOSITON
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. IRION, J.