Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 115498
Siggins, J.
Juan Verduzco was convicted by a jury of first degree murder, possession of a firearm by an ex-felon, and possession of methamphetamine. He claims his trial was riddled with prosecutorial misconduct, his counsel was ineffective, the jury was improperly instructed, and the first degree murder charge is not supported by substantial evidence. Defendant filed a petition for writ of habeas corpus which was consolidated with this appeal. We affirm the judgment and deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Verduzco’s crime took place in front of “the Glass House,” a place where various participants in the trial used to go to smoke methamphetamine. David Gonzalez drove his friend, Jose Uribe to the Glass House. Gonzalez sat in his van while Uribe talked with his girlfriend, Ruby Cardenas, on the front steps of the house. As Uribe was walking back to Gonzalez’s van, Verduzco drove up with some other passengers. Uribe greeted one of the passengers in Verduzco’s car and Verduzco answered. Uribe told Verduzco, “Shut up. I’m not talking to you.” Verduzco told Uribe that he did not want to talk to him either. Uribe, who was quick-tempered, replied “Oh, motherfucker,” and Verduzco told him to calm down. But Uribe persisted. Uribe was unarmed and never threatened Verduzco. He just seemed to want to fight with him, and was coaxing Verduzco out of the car saying “Get out, you motherfucker.” Uribe was yelling at Verduzco, but Verduzco was not yelling back. He was “just telling [Uribe] to calm down.” Verduzco did not appear frightened by Uribe and Verduzco got out and stood at the driver’s side door of the car. Verduzco told Uribe again to calm down and retrieved a shiny object from the door of his car. He took three or four steps toward Uribe as Uribe backed up and turned around. Uribe called Verduzco by his nickname and said, “Oh, no, Yoko. No. Oh, no.” Gonzalez saw that Verduzco was aiming a gun at Uribe’s chest and he heard a couple of shots. Gonzalez crouched down in his van and heard Uribe say, “Tell him not to shoot anymore.” Then Gonzalez heard four or five more shots. When the shooting stopped Gonzalez saw Verduzco drive off. Uribe was lying on the ground. He died from his wounds.
When Gonzalez spoke to police several months later, he said Uribe told one of the passengers who arrived with Verduzco to watch out for Verduzco because he was a troublemaker.
Gonzalez was very frightened and drove away. He did not call the police that night because he “didn’t have quarters” and he was afraid. When Gonzalez was contacted by police about three months after the shooting, he identified Verduzco as the shooter.
The evening Uribe was killed, Officer Gerardo Melero interviewed Cardenas at the scene. She was crying and upset. Cardenas initially said she was scared and did not want to provide a statement. Then she claimed that an unknown “Hispanic guy” shot Uribe and drove away. Officer Melero drove Cardenas to the home of her aunt who instructed Cardenas to cooperate with police. Cardenas told Melero, “It was Yoko who shot Tito.” Cardenas knew Verduzco well. He had stayed at her house and she had seen him more than 50 times. Uribe previously told Cardenas that he was having some unspecified problems with Verduzco. When she spoke with Officer Melero, Cardenas did not appear to be under the influence of methamphetamine.
Uribe was also known as Tito.
Octavio Ornelas was also at the Glass House when Uribe was killed. Ornelas and Uribe met in jail about two months earlier and Ornelas considered Uribe his friend. Ornelas also told police he knew Verduzco and had seen him several times before the killing.
Ornelas was unavailable to testify at trial because he had been deported. His statements to police and his preliminary hearing testimony were read into the record.
In a tape-recorded interview played for the jury, Ornelas said he saw Uribe running and Verduzco chasing him while holding a gun. Uribe was unarmed and was shot in the back. After he heard several shots, Ornelas approached Uribe and knelt down by his side. Verduzco almost immediately drove away.
In his written statement provided at the scene, Ornelas said a “male hispanic” drove up and started “motherfucking [Uribe].” As he was yelling at Uribe, “the guy pulled a gray gun out of his pants and shot [Uribe] about three times.” Ornelas described the shooter and said he thought he could identify him. Ornelas was an extremely reluctant witness, and at the preliminary hearing claimed he did not see the murder because at the time of the murder he had gone to a nearby store to buy beer. He disclaimed his previous statements to police that identified Verduzco as Uribe’s killer, and said that he maybe “lied” because he was “desperate” and “on drugs,” or wanted to help Uribe. “Everything was a blur” and Ornelas had little memory of reviewing approximately 100 photographs with police and identifying Verduzco as Uribe’s killer. The deputy district attorney who questioned Ornelas in the preliminary hearing testified that he was “extremely upset” that day and she had never seen a witness “that anxious to not be on the witness stand . . . .”
Following the preliminary hearing, Verduzco was charged by information with murder by means of a firearm causing great bodily injury, possession of a firearm by a convicted felon, and possession of methamphetamine for sale. An “on bail” enhancement was charged on the drug possession count, and before trial, Verduzco admitted that he was on bail when he was arrested for the drug offense.
Cardenas was a reluctant witness at trial who claimed she was inside the house when Uribe was killed. She denied that she told police she saw a “Hispanic guy” shoot Uribe and could not remember identifying Verduzco as the shooter. She said she did not “remember anything” because she had taken methamphetamine before she gave her statement to police. Her taped statement to police was played to the jury and they were given a transcript of it. In her statement, Cardenas said Uribe was unarmed and Verduzco shot him in the back, got in his car and drove away. Gonzalez also testified about what he saw when Uribe was shot.
Lorraine Gomez lived at the Glass House when Uribe was killed and she testified he was her friend. Gomez also knew Verduzco from his previous visits to the Glass House. Gomez was in her room when she heard multiple gunshots, one after the other. When she went outside Uribe was on the ground. Gomez saw Verduzco holding a gun. She saw him “put his hand down, jump in a car, and he took off smashing [leaving very fast].” No one else had a gun. When Gomez was interviewed by police on the night of the shooting, she identified a photograph of Verduzco as the shooter. She also told police about an argument between Verduzco and Uribe about a month before the shooting. They “started doing some stupid kick things to each other. Kicking each other’s windows, car windows. . . . They was trying to prove who was better than who.” Gomez testified she heard about the argument from others, but did not witness it herself.
Guadalupe Benitez Manzo was also in the Glass House when she heard gunshots. She came out of the house and saw Cardenas crying hysterically over Uribe and Verduzco get in his car and quickly drive away. Manzo was initially reluctant to provide information to the police. After she learned that others had identified Verduzco as the shooter, she told police it was he who drove away after Uribe was shot.
Uribe’s body had six bullet wounds. There were two entrance wounds in his chest and four entrance wounds in his back. Six .38-caliber casings fired from a single gun were recovered at the scene. The crime lab witness implied they were from a semi-automatic pistol, which would require the shooter to pull the trigger once for each shot.
The parties stipulated that police recovered methamphetamine from a residence searched by officers just after Verduzco was arrested for murder. Officers conducting surveillance saw Verduzco accompanied by a woman and child emerge from a house that had a rear unit. They confirmed that Verduzco lived in the back and Verduzco’s keys fit the door of the unit. The drugs were found on top of an open file drawer in the bedroom. The room also contained men’s clothing in what appeared to be Verduzco’s size, women’s clothing, and a child’s clothing, as well as a live round of 9-millimeter ammunition.
The parties also stipulated Verduzco was previously convicted of a felony for purposes of the charge that he was a felon in possession of a firearm. Verduzco presented no witnesses.
The jury deliberated for two hours before reaching its verdicts. The jury convicted Verduzco of first degree murder by means of a firearm causing great bodily injury, possession of a firearm by a convicted felon, and possession of methamphetamine. Verduzco was found not guilty of possession of methamphetamine for sale. Verduzco was consecutively sentenced to 25 years to life for the murder, 25 years to life for discharge of a firearm, 3 years for possession of methamphetamine, 8 months for possession of a firearm by a convicted felon, and 2 years for the “on bail” enhancement. His total term is 55 years, 8 months to life. He timely appealed.
DISCUSSION
A. Prosecutorial Misconduct
Verduzco argues the prosecutor committed misconduct because she elicited testimony and argued to the jury that witnesses changed their testimony out of fear, and there was no evidence that Verduzco threatened any witness or could carry out any threat.
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People v. Navarette (2003) 30 Cal.4th 458, 506.)
1. Possible Forfeiture of Verduzco’s Prosecutorial Misconduct Claim
Before we address whether the prosecutor was guilty of misconduct, we address the People’s contention that Verduzco forfeited his prosecutorial misconduct claim because his attorney failed to object during trial. “ ‘It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Pinholster (1992) 1 Cal.4th 865, 941-942.) Here, Verduzco argues the harm caused by the misconduct was so egregious it could not have been cured by objections, because in many instances the harm was created by the prosecutor’s questions themselves and no jury admonishment would undo that harm. Moreover, Verduzco claims his trial counsel was ineffective because he failed to object. Since we must address Verduzco’s ineffective assistance of counsel claim, we will address the issues of prosecutorial misconduct. (See People v. Hardy (1992) 2 Cal.4th 86, 209.)
2. Prosecutorial Conduct Concerning Reluctant Witnesses
Verduzco charges the prosecution with specific instances of misconduct during the prosecutor’s examination of witnesses, her opening and arguments to the jury.
a. prosecution-elicited testimony
One of the witnesses called by the prosecution was Jill Klinge, the prosecutor who presented the case against Verduzco in the preliminary hearing. Klinge met with Ornelas several days before the preliminary hearing when he was in county jail for unrelated charges. She said Ornelas “was nervous and somewhat upset. He did not want to keep the subpoena or take it, because he did not want it in his property at jail because he didn’t want anybody to know that he might testify against someone.” She also met with him at the jail a few days later and “[h]e was nervous. He did not want to testify.” When she met with him a third time, his demeanor “was more agitated and more nervous because the preliminary hearing was . . . set for the next day . . . .” In their fourth meeting, his demeanor was “desperate and very agitated, very upset. He absolutely did not want to have to testify.” In this final meeting before his preliminary hearing testimony, Ornelas contradicted prior statements he gave to police. Ornelas now claimed he did not witness the shooting because he had gone to the store when it happened. When Ornelas was testifying in the preliminary hearing, Klinge said he was “extremely agitated, extremely upset. I have never seen a witness that anxious to not be on the witness stand, to not testify.” Verduzco was present in the courtroom during the preliminary hearing.
Cross-examination elicited testimony from Klinge that Ornelas had “a typical demeanor of someone that doesn’t want to testify against someone in court” and such a witness would “say anything that comes into his head . . . to avoid having to testify against someone staring at him in court.” She said Ornelas’s testimony was “nonresponsive,” and that “instead of answering my questions, he basically held his head and said, ‘You know, I can’t answer,’ ‘You know, I can’t remember.’ I really thought his head was going to explode.”
The prosecutor also asked the victim’s girlfriend, Ruby Cardenas, how she felt about testifying, and she responded, “I don’t want to be here.” When she was asked “Why not?” Cardenas responded, “I don’t know.” The prosecutor confirmed with Cardenas that they had just taken a five minute break and that she began to cry while she and Verduzco were sitting in the courtroom during the break. When asked why she was crying, Cardenas again did not know.
When she was asked about the evening Uribe was killed, Cardenas testified she went to “the glass house” to see if he “had been around” there. But she said she had gone into the house before he was shot and was not out front on the sidewalk. Cardenas denied seeing Verduzco that night. She did not remember giving her taped statement to police or otherwise identifying Verduzco as the shooter, and testified “I was on meth. I don’t remember anything.” The day before she testified, the prosecutor offered to allow Cardenas to review her taped statement to police to help her remember what had happened. Cardenas declined the offer because she “just wanted to leave everything in the past and [did not] want to remember anything.” When the prosecutor offered to play the tape for her, Cardenas refused “[b]ecause I don’t remember anything and that’s it.”
Officer Melero interviewed Cardenas and prepared her written statement on the night of the killing. Melero said “[i]nitially she didn’t want to provide a statement at all” because she was scared. Cardenas did not appear to be under the influence of methamphetamine or alcohol. Officer Melero asked Cardenas if she would be more comfortable if they left the scene. She said “Yes.” Her statement provided to Officer Melero recorded that Cardenas saw a Hispanic male shoot her boyfriend and drive away.
In Officer Melero’s experience, “most people, if they’re going to be cooperative with the police, they don’t want to be on the scene where other people can see them cooperating with the police.”
Witness David Gonzalez testified about some events that occurred when he was waiting outside the courtroom to testify in the trial. Guadalupe Benitez Manzo passed by and told him she was “going to be watching [him there] or what [he] was saying or that she would see [him] on the street.” When Gonzalez was asked what Manzo’s words meant to him, Gonzalez said, “Like a threat, right?” Gonzalez also saw Manzo at the prosecutor’s office earlier that day when Gonzalez was discussing his anticipated testimony with the prosecutor. Gonzalez testified he was not completely truthful with the prosecutor “because she was there.” Manzo also told Gonzalez that Verduzco had talked to someone in jail, but Gonzalez did not know who and did not know what she meant by it.
When asked if he was comfortable with testifying in the trial, Gonzalez answered: “Well, yes. But two people have asked me questions about this. And, you know, and I’ve been threatened too. That’s why I didn’t explain everything really well to her. There were other girls who said that there were other weapons, like they were also blaming me.” When the prosecutor sought to have Gonzalez repeat that he had been threatened, Gonzalez responded: “No, not that I—not that I’ve been threatened, but I’m afraid that something could happen to me. Nobody’s threatened me.” Gonzalez said “people [had] spoken to [him]” and he had been asked “things about this case.” Gonzalez directed those people to the police, and said he would testify truthfully.
On cross-examination, Gonzalez denied that two women talked to him about his testimony. But when Manzo said she would be watching him, he took it as “more or less” a threat.
b. the prosecution’s comments in argument
In her opening statement, the prosecutor explained that preliminary hearing testimony from Octavio Ornelas conflicted with earlier statements he gave to police. She told the jury that although Ornelas would not testify at trial, they would “hear his testimony from that prior hearing. And you’re going to hear from the district attorney who was at that prior hearing . . . [a]nd . . . she’s going to tell you his demeanor at that prior hearing and she’s going to tell you that he was testifying in front of the defendant. Sitting in the same room with him. [¶] And you will hear his taped statement that he gave to the police right after it happened.”
After identifying other witnesses who were expected to testify, the prosecutor said: “I do not know what they will say on that witness stand. I do know that they’re scared. I do know that none of them want to be here. They may change their story and try to pretend like they weren’t there. [¶] They may try to tell you a different story than what they told police. [¶] Or they may have the courage to tell the truth. I don’t know.”
In her summation, the prosecutor discussed the dramatic differences between Cardenas’s statement to the police on the night Uribe was shot and her trial testimony, saying: “She was very scared when she testified. And if you remember, right when she testified, we had to take a five-minute break. And I asked her when we came back if she sat on that stand the entire five minutes while the defendant was in the room. And she said yes. She sat there for five minutes with the defendant in the same room. And that’s how she began her testimony. [¶] She was scared, and she was shaking. Therefore she claimed that she didn’t remember.”
She also talked about testimony from the district attorney who conducted the preliminary hearing. She had testified that Ornelas was “scared to testify in front of the defendant,” and “could barely look at the defendant when he was asked to identify him in court.”
In her rebuttal argument, the prosecutor responded to defense counsel’s argument that all the witnesses were lying. The prosecutor acknowledged that Cardenas lied on the stand, and reminded the jury that during voir dire she talked to them about domestic violence victims who report abuse to the police but later get scared and lie in court. The prosecutor asked the jurors not to abandon their responsibility to consider each witness individually, but to look at each story and “determine, based on all the evidence, which version was true.”
She continued, “There is a common theme of why these witnesses lied. I call it the fear factor. And you actually heard the police officers talk about this. It is very common in Oakland. [¶] . . . [Officer Melero] removed [Cardenas] from the scene, because they find, in their experience, people are more likely to talk. They don’t ever want to talk to the police, no one ever wants to be a witness to a murder. And no one ever wants to come into a courtroom and sit in front of the accused and point to him.” She said that even Cardenas’s friends did not want to talk to the police “because everyone knows about the fear factor. Everyone knows what could happen if you point the finger at someone.” Cardenas “said she didn’t want to testify. It was clear that she was scared. She has three kids. She’s looking out for herself and her family. [¶] She was scared to look at the defendant when she had to identify him in court.”
The prosecutor also told the jury that Gonzalez and Ornelas were frightened. She said Ornelas “also had the fear factor. He told the district attorney Jill Klinge that he didn’t want to testify because he was scared. He said that he didn’t want his subpoena because he was in jail. And he didn’t want other people to know that he was involved. He was worried what would happen to him if he were going to be a witness in a murder case. He told Jill Klinge he wanted the whole thing to go away. He said he did not want the defendant to have his statements. He was worried about that. [¶] The day he testified, Jill Klinge said it was like his head was going to explode. He was agitated, upset, and desperate. And you heard through the reader, he would say anything except the truth. Because the defendant was sitting there and he didn’t want the defendant to know it was him that pointed the finger.”
Verduzco argues that the prosecutor mischaracterized certain details of Klinge’s testimony, but the gist of the prosecutor’s argument was consistent with Klinge’s testimony that Ornelas was nervous and became increasingly agitated as the preliminary hearing approached. For example, he says that Klinge did not testify that Ornelas “could barely look at the defendant when he was asked to identify him in court.” But the transcript of the preliminary hearing showed that Ornelas was reluctant to affirmatively identify Verduzco, and Ornelas ultimately “indicated the defendant with a very small gesture.” Verduzco similarly complains that Klinge did not testify about whether Ornelas wanted Verduzco to have his statements. But the preliminary hearing transcript contained an exchange between Klinge and Ornelas: “[Y]ou still kept telling me you wanted it to all go away and you didn’t want the defendant to have your statements; correct?” Ornelas answered: “It’s because I’m not—how can I explain this to you? I’m not sure what I said.”
3. Analysis of the Evidence and Comments Concerning Reluctant Witnesses
It is generally proper for the prosecution to introduce evidence and comment upon a witness’s fear of testifying. “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court.” (People v. Burgener (2003) 29 Cal.4th 833, 869; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1141; see also Evid. Code § 780, subd. (f).) “For such evidence to be admissible, there is no requirement to show threats against the witness were made by the defendant personally or the witness’s fear of retaliation is ‘directly linked’ to the defendant.” (Guerra, supra, at p. 1142.) “It is not necessarily the source of the threat—but its existence—that is relevant to the witness’s credibility.” (Burgener, supra, at pp. 869-870; see also People v. Navarette, supra, 30 Cal.4th at p. 507 [prosecutor “had a right to inquire into matters relating to the witness’s credibility . . . [and] appropriately elicited evidence that defendant’s girlfriend, who had been sitting in the courtroom, made the witness afraid”].)
As in Burgener and Guerra, the evidence in question here was relevant to explain inconsistencies between Cardenas’s and Ornelas’s courtroom testimony and their earlier statements to police. Similarly, the testimony and argument that Gonzalez and Manzo were fearful or reluctant bore upon their credibility to explain their delay or initial unwillingness to identify Verduzco as the killer. (See People v. Guerra, supra, 37 Cal.4th at pp. 1140-1141.) The defense argued that all of them were lying. The jury was entitled to consider this testimony in evaluating the credibility of these witnesses, and the prosecutor did not commit misconduct in commenting on their fearfulness or apprehension in her argument. (Id. at p. 1153 [“Each party is entitled to comment fairly on the evidence and the reasonable inferences that can be drawn from the evidence”]; see also People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588 [when witnesses who gave statements to police and identified the defendant as the shooter were reluctant to testify, “the jury was entitled to learn of possible reasons for the witnesses’ radically different versions of what they saw or did not see that [day] in order to accurately assess their credibility at trial”].)
Verduzco’s attempts to distinguish Burgener and Guerra are unavailing. In Burgener, a witness during retrial of the penalty phase of a capital case testified that her inability to recall certain details when she testified in the guilt phase some seven years before was due to her fear. She explained that she was afraid to testify because threats were made against her and her family, and she was afraid to lie because she feared prosecution for perjury. (People v. Burgener, supra, 29 Cal.4th at pp. 868-869.) On cross-examination, the defense elicited that the threats were conveyed by a deceased jail mate of the defendant. (Id. at p. 869.) Thus, he argued the threats were hearsay and unreliable. (Ibid.) As we said in discussing this case above, the court concluded the source of the threats was not important. The evidence of the threats was admissible as it bore upon witness credibility to explain why the witness testified differently than she had seven years before. (Id. at pp. 869-870.) Although in Burgener the trial court gave a limiting instruction on the use of the threat evidence, the instruction was discussed by the court in its analysis of whether the evidence was admissible under Evidence Code section 352 and not because the instruction had constitutional significance. (Burgener, supra, at pp. 869-870.) We see no reason to distinguish Burgener.
We see no reason to distinguish Guerra either. Verduzco says we should because in Guerra it was clear that the threats did not come from the defendant, the jury was instructed the threats should not be attributed to the defendant, and there was no suggestion that the defendant was intimidating the witnesses in the courtroom. As we said above, we are not aware of any case holding that failure to give a limiting instruction on intimidation evidence has constitutional implications. Moreover, we see no reason to depart from the holding of our Supreme Court in Guerra: evidence of a witness’s fear about testifying is relevant to the credibility of that witness and is not inadmissible hearsay when used to prove credibility. (People v. Guerra, supra, 37 Cal.4th at pp. 1141-1142.)
Verduzco relies upon cases that predate Burgener and Guerra to argue that “evidence of intimidation of a witness, without evidence that the defendant was responsible for it—either directly or through a third person—is not only inadmissible but should be regarded as an improper attempt to prejudice the jury against the defendant.” Not only do the cases relied upon by Verduzco predate our Supreme Court’s more recent discussions of this issue, they are distinguishable. In People v. Hannon (1977) 19 Cal.3d 588, 597-598, the court considered whether the jury was properly instructed that defense efforts to suppress evidence could be considered as tending to show a consciousness of guilt. The court held such an instruction may only be given if there is evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. There was no such evidence in Hannon. In People v. Terry (1962) 57 Cal.2d 538, 566, the court held that proof of a defendant’s “mere opportunity” to authorize a relative’s attempt to influence a witness “has no value as circumstantial evidence” that the defendant actually did so. In People v. Weiss (1958) 50 Cal.2d 535, 552, 553-554, testimony that a witness received a telephone call from someone she could not identify, but who “may have said that he was [defendant’s] attorney,” was held inadmissible because there was no evidence that the call “was connected with or authorized by any defendant.”
The People argue that since no consciousness of guilt instruction was given in this case, they were not required to prove the witnesses’ fear was directly linked to Verduzco. Verduzco contends the People “got it backwards: evidence of a threat against a witness is permitted, even if there is no link between the threat to the witness and the defendant, if the jury is given an instruction that, absent proof of such link, it cannot consider the threat as any evidence of the defendant’s guilt.” But Verduzco cites no case that holds that such an instruction must be given, nor was such an instruction requested.
Verduzco also charges the prosecutor with misconduct for her argument that Uribe “was shot because of the slightest insult to the defendant’s masculinity, because of the slightest verbal insult.” He says this argument attempted to sway the passion and prejudice of the jury by “a veiled sexist and racist argument.” After review of the record, we think nothing of the kind took place. Verduzco acknowledges that the prosecutor did not refer to his race or argue that he had any cultural or ethnic propensity to commit murder. (Cf. People v. Hakam (1929) 99 Cal.App. 147, 152 [in case involving Afghani defendant, prosecutor argued “ ‘[i]t was that hot seething blood, which was incubated in some other country, which has not cooled by association with the calmer peoples of the Western World, that was in his mind at the time that he went out and he had this talk with this boy’ ”]; People v. Criscione (1981) 125 Cal.App.3d 275, 286-289 [in case where defendant was charged with the murder of his girlfriend, prosecutor referred repeatedly to his personal opinion that Italians treated women badly, and argued defendant “was not suffering from any mental disease, but merely acting out a common Southern Italian masculine role”].)
It would be entirely speculative to construe the prosecutor’s argument as an appeal to a perceived “prejudice . . . that Hispanic men are obsessed with their masculine image—their ‘machismo’—and are prone to fly off the handle whenever it is challenged.” Instead, the prosecutor’s comment simply suggested Verduzco killed Uribe for the trivial reason that Uribe used an especially offensive epithet. Indeed, Verduzco acknowledges he was insulted when Uribe “essentially told him to shut up and called him a ‘motherfucker’ ” There was no appeal, as Verduzco contends, by the prosecutor for the jury to “decide [Verduzco’s] guilt or innocence based on generalizations about national character” rather than the law and evidence presented during trial. There is no reasonable likelihood the jury construed any of these remarks in the objectionable fashion suggested by Verduzco. (See People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
Verduzco also contends the prosecutor’s argument to the jury subtly suggested “a negative comment on [Verduzco’s] exercise of his rights to be present at the hearing and to confront the witnesses against him.” We conclude the record does not support Verduzco’s argument. (See People v. Benson (1990) 52 Cal.3d 754, 793 [reviewing court must determine how reasonable juror would understand prosecutor’s remarks].) First of all, the prosecutor made no direct statement about Verduzco’s right to be present at trial. Much of the evidence and argument challenged by Verduzco can more reasonably be interpreted to suggest that the witnesses were motivated by a general reluctance to cooperate with the police and prosecution, a phenomenon that Verduzco acknowledges is “well known in the criminal courts.” The cases Verduzco relies upon to support this argument generally hold that a defendant has a right to be represented and confront witnesses at critical stages of the proceedings. None of them concludes that a prosecutor violates a defendant’s constitutional rights because she states that a witness may testify differently in front of the defendant than when speaking privately to the police, and we will not so conclude in this case.
Nor did the prosecutor’s use during argument of the words “we know” when discussing the evidence at trial improperly imply that the People had some independent knowledge regarding the truth of the witnesses’ statements. Instead, it is more reasonably interpreted to imply that “we [who heard the evidence here at trial] know” which testimony is more convincing.
Because no prosecutorial misconduct has been shown, Verduzco’s counsel was not ineffective for failing to object to the testimony and argument challenged in this appeal. (See People v. Padilla (1995) 11 Cal.4th 891, 944 [where counsel has no valid basis to object to the prosecutor’s argument, the failure to do so is not ineffective representation].)
There is no record in this case of prosecutorial conduct that we would categorize as “egregious,” “deceptive or reprehensible” such as to warrant our conclusion that Verduzco’s trial was so unfair he was denied due process. (People v. Navarette, supra, 30 Cal.4th at p. 506.)
B. Alleged Ineffective Assistance of Counsel Based on Failure to Move to Sever
Verduzco argues that his counsel was also ineffective because a reasonably competent attorney would have moved to sever the methamphetamine charge from the murder charge. Moreover, if the motion to sever were denied, Verduzco claims a competent lawyer would have advised him to plead guilty to the drug charge in order to keep the drug evidence from the jury. He also argues a competent lawyer would have moved to sever the possession of a firearm charge. (See People v. Valentine (1986) 42 Cal.3d 170.)
In the context of this case these claims are tail wagging the dog kind of arguments. The evidence through multiple witnesses showed that Verduzco shot and killed Uribe in cold blood outside a place where certain participants in the trial went to smoke methamphetamine. Verduzco admits the evidence that he shot Uribe six times with a semi-automatic handgun was “not hotly contested at trial.” “The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” (People v. Bean (1988) 46 Cal.3d 919, 938, italics added.)
The record does not support Verduzco’s claims that the methamphetamine charge and his status as a convicted felon had a “devastating impact . . . on the jury.” The prosecution never argued that Verduzco’s methamphetamine possession had any connection to his murder of Uribe. (Cf. People v. Cardenas (1982) 31 Cal.3d 897, 907 [evidence of defendant’s heroin addiction could not be used to demonstrate his motive for attempted robbery].) Verduzco’s argument that the methamphetamine for sale charge allowed the jury to infer that he was a drug dealer who was prepared to shoot people is also unsupported by the record. The jury rejected the possession for sale charge and convicted Verduzco of simple possession. Rejection of possession for sale indicates the jury had the ability to carefully evaluate the evidence and that it was not swayed by improper considerations. There is no reasonable probability that the outcome of the murder charge would have been more favorable to Verduzco if his lawyer had moved to sever the methamphetamine and firearm charges. (See Strickland v. Washington (1984) 466 U.S. 668, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
It is also highly unlikely the court would have severed the felon in possession of a firearm charge from the murder even had Verduzco’s counsel made such a motion. Both events were part of the same transaction. (See Pen. Code, § 954 [“An accusatory pleading may charge two or more different offenses connected together in their commission. . . .”].) There also appears to be a tactical reason why Verduzco’s counsel may have stipulated to his status as a felon. His prior felony was possession of a controlled substance. Due to his stipulation, the jury was instructed it could not speculate about the nature of Verduzco’s prior conviction. So, by stipulating that Verduzco was a convicted felon, defense counsel minimized the spillover effect Verduzco’s prior felony may have had on the methamphetamine possession charge. “ ‘In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’ ” (People v. Jones, supra, 29 Cal.4th at p. 1254.)
Finally, we will not speculate on whether counsel should have advised Verduzco to plead guilty to the methamphetamine and firearm counts to avoid any spillover effect on the murder charge. It appears on this record that spillover, if any, was minimal.
C. Jury Instructions
1. Failure to Instruct on Voluntary Manslaughter
“In reviewing the evidence to determine whether exclusion of a requested instruction was error, ‘ “[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” ’ [Citation.] [¶] The test, however, as to when an instruction must be given is whether there was substantial evidence presented which would warrant the giving of the instruction.” (People v. Strozier (1993) 20 Cal.App.4th 55, 63.) Here Verduzco argues he was denied due process when the court declined to instruct the jury on voluntary manslaughter. Voluntary manslaughter is a lesser included offense to murder. (People v. Manriquez (2005) 37 Cal.4th 547, 583.) “A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense.” (Id. at p. 584.)
“A defendant commits voluntary manslaughter and not murder when he or she intentionally and unlawfully kills ‘upon a sudden quarrel or heat of passion.’ ([Pen. Code,] § 192, subd. (a).) Voluntary manslaughter has both a subjective and an objective requirement. The defendant must kill while actually in the heat of passion. That heat of passion, however, must be aroused by sufficient provocation judged objectively. ‘ “[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,” because “no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” ’ ” (People v. Oropeza (2007) 151 Cal.App.4th 73, 82-83, quoting People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)
When the court ruled on Verduzco’s request for a voluntary manslaughter instruction, the court reviewed the witnesses’ testimony, then stated: “[T]he best summary of events just before the shooting appears to be that the victim and defendant were arguing in a loud tone, . . . calling each other names. The exact words exchanged between the victim and defendant are really unknown, except that the word ‘motherfucker’ was used. [¶] There was no provocative conduct on the part of the victim, the part just before the shooting, unless you call words provocative conduct. And the defendant appeared to be calm just before he started shooting the defendant. [¶] Therefore, the court’s ruling is that the defendant has not carried his burden or theory of voluntary manslaughter. Court finds that objectively, the passion of an ordinarily reasonable person would not have been aroused under these circumstances and subjectively, there is no evidence that the defendant killed under any kind of heat of passion.”
Verduzco argues the court was wrong because “the jury could have found that a reasonable person in [defendant’s] position, faced with the victim’s angry statements that not only was he a motherfucker but also that there was something despicable about his mother, would have been overcome by anger.” But in People v. Manriquez, supra, 37 Cal.4th at page 586, our Supreme Court ruled that evidence the victim “called defendant a ‘mother fucker’ and that he also taunted defendant . . . plainly [was] insufficient to cause an average person to become so inflamed as to lose reason and judgment. [Citation.] Accordingly, the evidence of provocation was insufficient to suggest that defendant’s killing of [the victim] amounted to voluntary manslaughter rather than murder.” (See also People v. Najera (2006) 138 Cal.App.4th 212, 215 [being called a “faggot” was “insufficient to cause an average person to lose reason and judgment under an objective standard”].)
Verduzco attempts to distinguish Manriquez, saying that Uribe’s “verbal behavior was more provocative and likely to cause [Verduzco] to become angry than merely calling him a motherfucker.” But the victim in Manriquez went beyond the simple use of that epithet, and taunted the defendant, “repeatedly asserting that if defendant had a weapon, he should take it out and use it.” (People v. Manriquez, supra, 37 Cal.4th at p. 586.)
Verduzco’s reliance on People v. Valentine (1946) 28 Cal.2d 121 is misplaced. There the court concluded it was error to instruct the jury that words alone could never provide sufficient provocation to reduce an offense from murder to manslaughter. (Id. at pp. 137-144.) No such erroneous instruction was given here, and the court in fact recognized that verbal provocation might in a proper case be sufficient. Verduzco has not shown the court erred when it concluded this was not such a case.
The recent case of People v. Le (2007) 158 Cal.App.4th 516 is similarly distinguishable.
2. Failure to Instruct that Provocation Could Reduce the Murder to Second Degree
The trial court instructed the jury on first and second degree murder. The jury was told that to convict Verduzco of first degree murder, it was required to find his decision to kill “must have been formed upon pre-existing reflection, and not under a sudden heat of passion or other conditions precluding the idea of deliberation,” while “[m]urder of the second degree is the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being, but the evidence is insufficient to prove deliberation and premeditation.” Verduzco now argues that the instructions were misleading because the jury should also have been instructed that provocation leading a perpetrator to kill could reduce a murder from first degree to second. (AOB 77-84)
CALCRIM No. 522, which defendant argues should have been given, states, in relevant part: “Provocation may reduce a murder from first degree to second degree. [¶] The weight and significance of the provocation, if any, are for you to decide. If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.”
In his reply brief, Verduzco acknowledges that an instruction the jury could consider whether a perpetrator was provoked is a “pinpoint” instruction that the court is not required to give sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 878-880.) But here he says the court should have given a provocation instruction and his trial counsel was ineffective for not requesting it. We disagree.
In order to show that his counsel was ineffective for not seeking an instruction on provocation, Verduzco must show that his lawyer’s performance was both deficient and prejudicial. (People v. Castillo (1997) 16 Cal.4th 1009, 1014-1015.) We need not consider whether Verduzco’s lawyer was deficient in failing to request the provocation instruction, because we conclude on this record that the provocation instruction was unnecessary.
The instruction on first degree murder specifically invited the jury to consider whether Verduzco acted under a sudden heat of passion. If the jury was to conclude that he did, the circumstances would negate his reflection and deliberation to commit first degree murder. These instructions were not confusing or misleading and the jury was allowed to consider whether Verduzco acted in anger or passion. But more importantly, there is no substantial evidence that would compel the court to specifically instruct on provocation just as there was no such evidence to warrant an instruction on voluntary manslaughter. (See part C.1, ante, p. 18.)
It was Uribe, not Verduzco, who witnesses overwhelmingly described to be agitated and angry before the shooting, and Verduzco calmly retrieved a gun from his car and walked several steps toward Uribe when he fired multiple shots into his torso. Verduzco has not shown his counsel was ineffective for failing to request a pinpoint provocation instruction under these circumstances.
3. Whether the Instruction on Second Degree Murder Was Misleading
The court instructed the jury on second degree murder with CALJIC No. 8.30. This instruction allows the jury to find the defendant guilty of second degree murder when the evidence shows the “perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.” (CALJIC No. 8.30.) Verduzco says the word “insufficient” as used in the instruction required the jury to find “the absence of any evidence on the basis of which a reasonable trier could find the fact to be true.” Thus, in light of this instruction, it would not have been enough for the jury to have a reasonable doubt about Verduzco’s deliberation or premeditation. Instead, Verduzco says the word “insufficient” should be replaced in the instruction with the phrase “there is a reasonable doubt as to whether.” Verduzco says in this way the jury would properly consider whether the evidence proved deliberation and premeditation. In context, Verduzco’s argument makes a distinction without a difference.
The instruction would then read: a defendant could be guilty of second degree murder when the evidence shows the defendant “intended unlawfully to kill a human being, but there is a reasonable doubt as to whether the evidence proves deliberation and premeditation.”
The sufficiency of the instructions given to the jury must be considered as a whole, rather than viewing one instruction or parts of one in isolation. (People v. Burgener (1986) 41 Cal.3d 505, 538.) An omission from one instruction may be supplied by another or cured by the instructions as a whole. (Id. at pp. 538-539.)
The totality of the instructions properly conveyed the applicable standard of proof to the jury. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [jury instructions are to be considered as a whole]; People v. Cain (1995) 10 Cal.4th 1, 36 [defendant must establish a reasonable likelihood the jury misunderstood the instructions as a whole].) The jury was instructed that to find Verduzco guilty of first degree murder, it would have to conclude he was guilty of a willful, deliberate and premeditated killing. There is no reasonable likelihood that the jury misconstrued or misapplied these terms in the fashion Verduzco suggests. (See People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1335 [jury would not have been confused because the “proper reasonable doubt standard was emphasized many times in the instructions and arguments”]; People v. Wade (1995) 39 Cal.App.4th 1487, 1491-1492 [no reasonable likelihood jury misinterpreted presumption of innocence to undercut reasonable doubt standard].)
The jury was instructed that “[a] defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the people the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: [¶] It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” The jury was further instructed: “If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by the defendant, but you unanimously agree that you have a reasonable doubt whether the murder is of the first or second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.” Defense counsel reiterated the reasonable doubt standard of proof many times during closing argument, and argued that the requisite deliberation and premeditation for first degree murder had not been proven under that standard.
4. Whether Instructions Required the Jury to Convict Verduzco of First Degree Murder Even if All of Them Did Not Agree He Was Guilty of It
The jury was instructed pursuant to CALJIC No. 8.71: “If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by the defendant, but you unanimously agree that you have a reasonable doubt whether the murder is of the first or second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.”
Verduzco also argues that this instruction violated his right to due process because CALJIC No. 8.71 “was likely to have misled the individual jurors to believe that, even if they had a reasonable doubt that [defendant] was guilty of first degree murder, they had to find him guilty of that crime unless all the jurors agreed that he was not guilty of that degree of the crime.” Again, the instructions considered as a whole belie Verduzco’s claim. The jury was also instructed that “[t]he People and the defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict, if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [¶] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors or any of them favor that decision.”
In People v. Frye (1998) 18 Cal.4th 894, 964, our Supreme Court rejected an argument that CALJIC No. 8.71 suggested that “members of the jury . . . should compromise their firmly held beliefs in order to arrive at a verdict.” The court concluded that in light of the other instructions regarding the importance of each juror deciding the case individually, “jurors were adequately informed not to abandon their views for the sake of a verdict. The instructions compelling [a] verdict[] of second degree murder . . . if jurors had reasonable doubts when deciding between first and second degree murder . . . did not undermine this command.” (Frye, supra, at pp. 963-964.) There is no reasonable likelihood that the jury understood it could convict Verduzco of first degree murder on less than a unanimous vote, or that a dissenting juror was required to vote for first degree murder.
Verduzco acknowledges that Frye approved CALJIC No. 8.71, but says it “did not address [Verduzco’s] contention, which is not that the instruction compelled a juror to return a verdict of a higher degree but that it prevented him from returning a verdict of the lower degree unless all the other jurors agreed with him.” As in Frye, the jurors here were properly informed by the instructions as a whole not to forsake their individual opinions in arriving at a verdict.
D. Sufficiency of the Evidence of First Degree Murder
“Defendant contends there was insufficient evidence of premeditation and deliberation to support the verdict of first degree murder. ‘In reviewing the sufficiency of the evidence, we must draw all inferences in support of the verdict that can reasonably be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.’ ” (People v. Edwards (1991) 54 Cal.3d 787, 813.)
Verduzco says there was no evidence that he gave careful thought to the killing, and rather, he acted on a mere unconsidered and rash impulse. He argues that when we examine the record, we will see there was no evidence of the type found sufficient to sustain a finding of premeditation and deliberation in prior cases. He says there was no evidence of planning, a prior relationship with the victim from which the jury could reasonably infer a motive, or facts about the nature of the killing that showed a “preconceived design.” (See People v. Anderson (1968) 70 Cal.2d 15, 26-27.) But “[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.)
“In other words, the Anderson guidelines are descriptive, not normative. ‘The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1081.) The California Supreme Court has also stated that Anderson does not provide “ ‘a definitive statement of the prerequisites for proving premeditation and deliberation in every case’ ” (People v. Welch (1999) 20 Cal.4th 701, 758), nor is evidence of all three elements essential to sustain a conviction. (People v. Edwards, supra, 54 Cal.3d at p. 813.) Further, the prosecution is not required to prove “a specific motive.” (People v. Thomas, supra, 2 Cal.4th at p. 519; Edwards, supra, at p. 814.)
Deliberation may take place with “great rapidity,” and the defendant’s action need not be “ ‘planned for any great period of time in advance.’ ” (People v. Vorise (1999) 72 Cal.App.4th 312, 318.) The manner of killing alone may support a conclusion that the murder was premeditated and deliberate. (Ibid., quoting People v. Memro (1995) 11 Cal.4th 786, 863-864.) Here, Verduzco decided to kill Uribe after Uribe insulted him. Verduzco retrieved a loaded gun from his car, walked toward Uribe and fired multiple times into his unarmed victim. This evidence was sufficient to allow the jury to conclude Verduzco acted with premeditation and deliberation. (See People v. Silva (2001) 25 Cal.4th 345, 369 [multiple shotgun wounds inflicted on unarmed victim were “entirely consistent with a premeditated and deliberate murder”]; Vorise, supra, at p. 319 [calm and repeated firing of gun into chest of incapacitated victim supported finding Verduzco “made a cold, calculated decision to kill the victim”].)
Gomez also told police that Verduzco and Uribe had argued in the past.
In support of this final argument, Verduzco also chides the prosecutor for equating deliberation and premeditation with “rational thought,” and their absence with “instinctive reaction,” when she argued to the jury. But jurors were correctly instructed on deliberation and premeditation, and we have no reason to conclude they misunderstood or incorrectly applied their charge.
DISPOSITION
The judgment is affirmed and the petition for writ of habeas corpus is denied.
We concur: McGuiness, P.J., ollak, J.