Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC630499.
ELIA, J.
A jury found appellant Andre Wells guilty of first degree murder (Pen. Code, § 187) and found true an allegation that in the commission of the murder appellant personally used a deadly and dangerous weapon, a knife, within the meaning of Penal Code section 12022, subdivision (b)(1).
Appellant appeals his conviction asserting that the trial court abused its discretion in excluding some of his statements to a defense expert; that he was denied due process when the court precluded the jury from considering the defense expert's testimony on the issue of whether appellant committed voluntary manslaughter, erroneously defined the objective standard of provocation for voluntary manslaughter and refused to instruct on imperfect self-defense; that the prosecutor committed misconduct; and that as a result of cumulative prejudice his conviction must be reversed. In a supplemental opening brief, appellant asserts that he received ineffective assistance of counsel to the extent his trial counsel failed to make adequate objections.
For reasons that follow with affirm the judgment.
Facts and Proceedings Below
In 2006, Joseph Miller and his girlfriend Brenda Cabrera lived in a downstairs apartment in Santa Clara with their one-year old daughter. Appellant lived with his mother in an upstairs apartment.
On the afternoon of May 21, 2006, Eddie Reyes visited Miller at Miller's apartment. Several other friends were there including Bulmaro, James Campbell, Isaac Armenta and Jessica Gonzalez, who was Armenta's girlfriend. Armenta's and Gonzalez's two-year-old daughter was also there.
The group watched television and ate pizza. At some point, the men went outside. Cabrera and Gonzalez remained in the living room of the apartment with the children.
While the men were outside, appellant approached them. As a group, they started to make fun of appellant regarding his appearance including the fact that he had a missing tooth. Reyes said that appellant appeared "like, Dave Chappelle on crack." Appellant became very irate. He called Reyes a "spick" and other racist names. Reyes asked appellant where he was from. Appellant responded that he was from Nancy Lane. Reyes asked whether that was where a lot of Surenõs came from. This comment made appellant mad. Reyes asked appellant if he had heard of "33rd Street." Appellant said that he had not. Reyes took appellant's lack of knowledge as a sign of disrespect. Campbell testified that all the men in the group were Nortenõs. Reyes called appellant a "bitch."
Miller explained to the jury that Dave Chappelle is skinny comedian who dresses up as a character that people associate with a "crackhead."
Reyes pushed appellant on his upper chest, causing appellant to stagger backwards down some steps and hit a railing. Appellant did not fall to the ground. According to Campbell, Reyes told appellant, " ' If you want to, we'll have a fist fight. Let's go have one out back.' " Reyes and appellant stared at each other. Then, according to Miller, appellant said that he did not " 'want to disrespect [his] mom's house.' " Appellant walked away.
According to Campbell, Miller made fun of appellant for running away. Campbell said that appellant appeared frightened, embarrassed, angry and emotional. Everyone was laughing at him. Cabrera said appellant "looked like maybe he felt dumb when he walked away."
Although Cabrera was inside the apartment, she testified that the blinds and window were partially open during the argument.
After appellant left, the group returned to the apartment and went into the back bedroom. Campbell claimed he remained in the living room with the two women, but all the other witnesses testified that Campbell went into the back room. The group laughed and joked about the encounter with appellant. Reyes made a telephone call on his cell phone in an attempt to get a ride home as Armenta was not ready to leave.
Approximately 10 to 20 minutes later, there was a knock on the front door. When Cabrera answered the door, appellant was there. According to Gonzalez, appellant appeared to be "normal." Cabrera thought that appellant appeared "normal, like he wasn't mad." Appellant said that he wanted to talk to Reyes, so Cabrera walked a "couple of feet" from the door and called for Reyes saying that appellant wanted to talk to him. Reyes walked out of the bedroom talking on his cell phone. As Reyes reached the heater in the hallway, Cabrera heard the click of a knife being opened and appellant ran straight towards Reyes and started stabbing him. Cabrera screamed and the rest of the men ran out from the bedroom. When Miller emerged from the bedroom, he saw appellant. Miller thought that appellant appeared to have done something he regretted. Miller saw appellant holding a triangular-shaped shank in his hand. According to Cabrera, Armenta pushed appellant away and appellant ran from the apartment. Reyes collapsed, so Campbell and Miller carried him to Armenta's car. Armenta drove Reyes to the hospital where he died at approximately 9:00 p.m. from "multiple sharp force injuries" caused by a knife.
The knife was never located.
The medical examiner testified that one of the stab wounds went into Reyes's heart.
Campbell testified that before this incident, on four or five occasions, he had seen appellant with a three to four inch multicolor folding knife, the kind that makes a sound when the blade is opened.
Gonzalez and Cabrera identified appellant from a photographic lineup. Miller was not able to identify appellant.
Defense Testimony
Dr. Karen Froming testified as an expert witness in neuropsychology for the defense. After reviewing the preliminary hearing transcript in this case, appellant's school and jail treatment records, a DVD of appellant's police interview that was conducted seven to eight hours after the stabbing, appellant's treatment records from a mental health program he had been in, anecdotal evidence of appellant's family history and anecdotal evidence that appellant had suffered a number of head injuries, and conducting her own interview of appellant and testing him in April and May of 2007, Dr. Froming opined that appellant had bipolar affective disorder.
Dr. Froming explained that bipolar affective disorder includes cycles of dramatic mood swings. During her interview of appellant she saw signs of bipolar disorder with psychotic features, which she described as impaired reality testing in which a person cannot perceive their environment correctly.
Dr. Froming found that appellant had impairment in several areas, including central auditory processing, paying attention, processing speed, verbal memory, abstract reasoning, and problem solving. She explained that a central auditory processing defect could cause a person to misperceive what was being said or how it was being said. In high stress situations there would be a further reduction in ability.
Dr. Froming opined that appellant suffered from a bilateral memory disorder, which could impair his ability to track information. The types of defects from which appellant suffered could cause paranoia because of the distorted view such a person would have of what was happening based on misinformation, lack of understanding of the whole situation and impaired memory.
Dr. Froming reviewed the videotape of appellant's police interview and concluded that appellant's behavior during the interview was not inconsistent with her diagnosis of him. However, Dr. Froming conceded that some of appellant's actions were consistent with a person being cold.
Later testimony established that the interview room was cold and not carpeted. Appellant was not wearing shoes or socks during the interview and the jumpsuit he was wearing was very thin.
According to Dr. Froming, appellant was not schizophrenic, had never had hallucinations or heard voices, was not mentally retarded and had an average IQ score. Dr. Froming testified that appellant was able to engage in goal-directed behavior and that a person with appellant's impairments could "engage in a violent attack out of a revenge motive." Nevertheless, Dr. Froming opined that such a person could also engage in aggressive behavior out of fear, paranoia, failure to properly assess a situation, or in response to an actual threat.
Dr. Froming did not diagnose appellant as having an impulse control disorder, but testified that appellant's combination of mental illness could decrease his impulse control. Furthermore, if a person suffered from the combination of impairments that appellant had, those impairments could interfere with the quality of reflection that person could engage in before making a decision.
The court instructed the jury on first degree and second degree murder and voluntary manslaughter based on heat of passion.
Discussion
I. Exclusion of Appellant's Statements to the Police and Dr. Froming
Appellant argues that the trial court abused its discretion in excluding evidence of his statements made to Dr. Froming because it was the basis for her opinion and circumstantial evidence of his state of mind. Furthermore, the exclusion of this evidence deprived him of his constitutional right to present a defense.
Background
In limine, the prosecution moved to exclude Dr. Froming's testimony as irrelevant and unsupported by the facts. The prosecutor argued that unless appellant testified about what he was thinking at the time of the murder, there was insufficient evidence of his mental state such that it would be a defense. Alternatively, the prosecutor moved to exclude appellant's statements to Dr. Froming, and from a police interview, as hearsay and under Evidence Code section 352.
Defense counsel brought an in limine motion to have statements that appellant made to Dr. Froming admitted as circumstantial evidence of appellant's state of mind. Defense counsel argued that Dr. Froming's testimony was admissible and appellant's statements to Dr. Froming were admissible for the non-hearsay purposes of explaining Dr. Froming's opinion and as circumstantial evidence of appellant's state of mind around the time of the stabbing. Defense counsel did not specifically identify which of appellant's statements she was talking about. The only statements that counsel identified as those she sought to have admitted was appellant's statement to Dr. Froming that "he felt threatened by the Nortenõ group, and he provided information to support the inference that his state of mind was one of a threatened, frightened, and anxious individual." Nowhere in the motion does defense counsel identify exactly what "information" appellant provided.
In addition, defense counsel brought a motion in limine to introduce statements that appellant made to police during his interview to show that the police were biased against him. The statements were to the effect that he needed the officers to follow up on his report that the Nortenõs would harm his mother, but the officers were dismissive of appellant's appeals referring to his behavior as " 'shenanigans.' " During argument on this motion, again defense counsel did not specifically identify the statements that she sought to introduce.
The court ruled that all of appellant's statements were "hearsay without any exception."
At an Evidence Code section 402 hearing (hereafter 402 hearing), Dr. Froming testified that she had viewed a videotape of appellant's police interview. Similar to her trial testimony, Dr. Froming stated that appellant had a central auditory processing disorder with a much reduced processing speed that reduced his ability to remember things, especially verbal material. It could have caused appellant to act impulsively, and based on incomplete information. Appellant's condition could be exacerbated by stress.
Appellant's verbal immediate memory was just above the retarded range and could impair his ability to solve problems, assess risk and threats and make decisions. Dr. Froming opined that appellant's slower thinking meant it took him longer to make choices, but that he was nonetheless able to make choices based on the information that he had, although his ability to assess a situation appropriately might be impaired. Appellant was able to form many kinds of intentions, but Dr. Froming did not know whether he was able to form the intent to kill. Dr. Froming was of the opinion that at the time of the murder, appellant was misinterpreting events, was paranoid, and unnecessarily concerned about things like his mother's safety. However, she did not believe he was delusional.
At the conclusion of the 402 hearing, the prosecutor argued that although Dr. Froming's testimony might be admissible on the issue of premeditation and deliberation, it was not admissible on the issue of whether appellant was able to form the intent to kill. In addition, the prosecutor argued that while Dr. Froming could testify she based her conclusions and opinions in part on her review of appellant's police interview and her own interview of appellant, she should not be able to testify as to the substance of appellant's hearsay statements from those interviews, including appellant's statements that he was afraid. Defense counsel argued that exclusion of Dr. Froming's testimony would deprive appellant of his rights "according to the 6th Amendment and due process."
The court ruled that Dr. Froming's testimony was relevant to negating premeditation and deliberation, and could "go to heat of passion, imperfect self-defense." However, the court ruled that although Dr. Froming would be allowed to testify that she based her conclusions in part on the police interview and her interview of appellant, she would not be allowed to testify to statements appellant made during those interviews.
Later, the court excluded the imperfect self-defense theory because there was not sufficient evidence presented to warrant the instruction.
During the trial, defense counsel sought to have admitted a number of exhibits including four video clips from appellant's police interview. According to defense counsel, these clips included audio of appellant moaning and crying and showed him rocking back and forth, balling up in the fetal position, appearing inconsolable, possibly hyperventilating, and breaking down, shaking, shivering and crying. The court allowed Dr. Froming to state that appellant displayed fear and other emotions, but excluded statements that appellant made to Dr. Froming.
Defense counsel prepared the clips based on her understanding from discussions in limine that the court would not allow Dr. Froming to introduce appellant's statements from the police interview or her interview of appellant that were related to "self-defense or [appellant's] statements that were related to needing to respond to alleged weapons by the parties associated with the Miller apartment."
The Attorney General points out that appellant does not specifically identify the statements that he claims should have been admitted. However, he makes reference to statements that he believed he and his mother were in danger and that he believed Reyes and his friends were gang members.
At the conclusion of the 402 hearing on the prosecution's motion to preclude Dr. Froming from testifying, the court asked Dr. Froming if in her opinion, based on everything she had reviewed, appellant was delusional. Dr. Froming replied, "It's my clinical judgment that he was misinterpreting events and was paranoid at the time. He was concerned for things that, in my judgment, were not happening and weren't there. [¶] So, in fact I don't think his mother was in danger. And that was his perception. I don't think that they were going to physically harm him, but that was his perception and fear."
The prosecutor reminded the court that he had filed a motion in limine to prevent Dr. Froming from testifying about appellant's "self-serving" statements in his police interview and during the time she interviewed appellant. The prosecutor stated that it was "highly improper for [Dr. Froming] to say, 'I thought he was afraid because he thought his mother was going to be attacked, ' that comes from what he said to the police and what he said to her about the interview." Again, the court ruled that appellant's statements were excluded.
"In general, a judgment may not be reversed for the erroneous exclusion of evidence unless 'the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 580 (Anderson).) Furthermore, an offer of proof must "set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued." (In re Mark C. (1992) 7 Cal.App.4th 433, 444.) "This rule is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. [Citations.]" (Anderson, supra, 25 Cal.4th at pp. 580-581.)
Relying on Beneficial Fire & Cas. Ins. Co. v. Kurt Hitke Co. (1956) 46 Cal.2d 517, 522 (Beneficial) and Pacific Gas & Elec. Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1142 (Zuckerman), appellant argues that where, as here, the trial court has " 'clearly intimated it will receive no evidence of a particular class or upon a particular issue, an offer of proof is not a prerequisite to raising the question on appeal, and an offer, if made, may be broad and general.' "
We find both Beneficial and Zuckerman, to be distinguishable. These were both civil cases in which the terms of a contract had to be determined by the trial court and the offer of proof related to extrinsic evidence to aid in that determination. (Beneficial, supra, at pp. 519, 522; Zuckerman, supra, at pp. 1137, 1139-1140.) Furthermore, all the cases upon which Beneficial relied in holding that where a trial court has " 'clearly intimated it will receive no evidence of a particular class or upon a particular issue, an offer of proof is not a prerequisite to raising the question on appeal, and an offer, if made, may be broad and general' " -Heimann v. City of Los Angeles (1947) 30 Cal.2d 746; Lawless v. Calaway (1944) 24 Cal.2d 81; Caminetti v. Pacific Mut. Life Ins. Co. (1943) 23 Cal.2d 94; Estate of Kearns (1950) 36 Cal.2d 531-similarly, were all civil cases. Not as here, where the issue is the admissibility of evidence on the state of mind of a defendant accused of murder.
Appellant asserts that the court's action made it clear it knew the substance, purpose and relevance of the excluded evidence and had a sufficient understanding of the record for it to make its ruling.
Appellant is missing the point. While it is true that when the rulings of the trial court make a more specific offer of proof futile, a more general offer of proof may suffice to preserve for appellate review a ruling excluding evidence (People v. Schmies (1996) 44 Cal.App.4th 38, 54, fn. 9), by failing to specifically identify the statements that were excluded, appellant has not provided this court with a record upon which we can judge 1) whether or not the statements were hearsay and 2) if they truly were circumstantial evidence of appellant's state of mind at the time of the murder 3) if the trial court erroneously excluded the evidence and 4) if appellant was prejudiced thereby. An "offer of proof exists for the benefit of the appellate court. The offer of proof serves to inform the appellate court of the nature of the evidence that the trial court refused to receive in evidence.... The function of an offer of proof is to lay an adequate record for appellate review;..." (1 Wigmore on Evidence, § 20a (Tillers Rev.1983), p. 858.) Here, nothing prevented trial counsel from making a record adequate for this court to make the determinations necessary for resolution of this issue.
In his reply brief, appellant purportedly identifies for the first time the statements that he believes should have been admitted. Specifically, appellant stated to the police 1) that he was afraid, 2) that he was afraid to have his name written in the police paperwork because the people he confronted were from West Side Mob, a Nortenõ gang, and 3) the video showed appellant in a near fetal position audibly moaning and crying even after the officers left the room, though appellant was unaware he was being videotaped. As to the third of these "statements" appellant cannot raise a claim of error because the trial court admitted video and audio excerpts showing appellant moaning and crying balled up the fetal position.
Simply put, before an appellate court can knowledgeably rule upon an issue presented, we must have an adequate record. (People v. Foss (2007) 155 Cal.App.4th 113, 127; see 5 Cal.Jur.3d (2007) Appellate Review, § 487 [The appellant's failure to provide an adequate record concerning an issue challenged on appeal requires that the issue be resolved against the appellant].) Appellant's contention on appeal fails for failure to provide an adequate record for review because we cannot identify from the record with which we have been provided exactly which of appellant's statements to the police and Dr. Froming defense counsel sought to have admitted.
Moreover, we cannot reverse on grounds that trial counsel's failure to make an adequate offer of proof constituted ineffective assistance. Since the "appellate record does not disclose what evidence was thereby omitted, it provides no basis for concluding that counsel's performance, even if deficient, caused prejudice. [Citations.]" (People v. Whitt (1990) 51 Cal.3d 620, 650.)
II. Due Process Arguments
Appellant contends that the court deprived him of due process when it erroneously excluded consideration of Dr. Froming's testimony on the issue of whether he committed voluntary manslaughter, erroneously defined the objective standard of provocation for voluntary manslaughter, and refused to instruct on imperfect self-defense.
We address each of these contentions in turn, applying the standard of review for alleged instructional error, which is de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
A. Limitation of Dr. Froming's Testimony
As noted, at the conclusion of the 402 hearing, the prosecution argued that although Dr. Froming's testimony might be admissible on the issue of premeditation and deliberation, it was not admissible on the issue of whether appellant committed voluntary manslaughter. The trial court agreed. As a consequence of this decision, over defense objection, the trial court instructed the jury that it could consider the evidence of appellant's mental disorders only for the limited purpose of deciding "whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime"; and that Dr. Froming's testimony "was admitted for the following limited purpose: whether defendant, Andre Wells, acted willfully and deliberately, and with premeditation when he stabbed Eddie Reyes to death." Further, the court instructed the jurors that they "may not use Dr. Froming's testimony to reduce murder to voluntary manslaughter on the theory of heat of passion."
The defense requested an instruction that states, "If you find that the defendant acted in imperfect self-defense, you must find him not guilty of murder because the defendant acting in imperfect self defense is not acting with malice. [¶] 'Imperfect self defense' means that the defendant made an unreasonable assessment of the circumstances around him, and he believed that he was threatened by imminent danger of death or great bodily injury. With that belief in mind, the defendant acted to defend himself against the unreasonable threat. [¶] An actual, though unreasonable belief in the need to defend oneself from an imminent threat of death or great bodily injury negates the malice element of murder, reducing the offense to manslaughter." The court refused to give this instruction. Thus, it is quite apparent to this court that appellant wanted Dr. Froming's testimony to go to imperfect self defense as well as provocation and heat of passion.
"California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice. [Citations.]" (People v. Rios (2000) 23 Cal.4th 450, 460, fn. omitted.)
" 'Murder is the unlawful killing of a human being with malice aforethought. [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of... voluntary manslaughter. [Citation.]' [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] 'But a defendant who intentionally and unlawfully kills [nonetheless] lacks malice... in limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" [citation], or when the defendant kills in "unreasonable self-defense" -the unreasonable but good faith belief in having to act in self-defense [citations].' [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 153-154.)
Evidence the accused acted upon a sudden quarrel or heat of passion provoked by adequate provocation overcomes the presumption of malice. (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) The element of provocation is therefore the distinguishing characteristic between murder and voluntary manslaughter. To establish voluntary manslaughter, " 'provocation and heat of passion must be affirmatively demonstrated.' [Citations.]" (Id. at p. 1252.)
"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." (Steele, supra, 27 Cal.4th at p. 1252.)
Thus, " 'this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, ' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (Steele, supra, at pp. 1252-1253.)
In People v. Padilla (2002) 103 Cal.App.4th 675 (Padilla), the defendant was charged with the murder of his cellmate. (Id. at p. 677.) During the guilt phase, the trial court rejected the defendant's attempt to admit the testimony of two psychologists that the killing was retaliatory after the defendant hallucinated that his cellmate killed the defendant's father and brothers. (Ibid.) One of the psychologists would have testified that the defendant hallucinated and the other would have testified about the concept of a hallucination as provocation. (Id. at p. 678.) The appellate court held that a subjective test applies to determine "whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder...." (Ibid.) Finding the jury could have concluded the defendant's hallucination provoked a heat of passion and reduced the murder from first degree to second degree, the court vacated the judgment of conviction on first degree murder. (Id. at pp. 678-679.)
However, the Padilla court went on to state that evidence of a hallucination is inadmissible to reduce murder to manslaughter. In so holding, the court reasoned that "[a] hallucination is a perception with no objective reality" and that "[a] perception with no objective reality cannot arouse the passions of the ordinarily reasonable person. [Citation.] Failing the objective test, [the defendant's] hallucination cannot as a matter of law negate malice so as to mitigate murder to voluntary manslaughter...." (Padilla, supra, 103 Cal.App.4th at pp. 678- 679.) We agree with the Padilla court on this point as it relates to heat of passion voluntary manslaughter.
In this case, Dr. Froming testified regarding appellant's impaired ability to accurately perceive his environment, his tendency to misperceive what was being said, and his tendency for paranoia due to his bipolar disorder, hypomania, and central auditory processing impairment. Nevertheless, "[a] perception [or in this case misperception] with no objective reality cannot arouse the passions of the ordinarily reasonable person." (Padilla, supra, at p. 679.)
However, the Padilla court expressly stated it was not addressing imperfect self-defense (which had been disavowed by the defendant), but only provocation and heat of passion. (Padilla, supra, at p. 678, fn. 3.)
"Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." (In re Christian S. (1994) 7 Cal.4th 768, 771.)
"For the same reason, one who kills in imperfect defense of others-in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury-is guilty only of manslaughter." (People v. Randle (2005) 35 Cal.4th 987, 997 (Randle) overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) Imperfect defense of others is a description of one type of voluntary manslaughter, which is a lesser included offense of murder. (People v. Barton (1995) 12 Cal.4th 186, 200-201; Randle, supra, 35 Cal.4th at p. 997.)
In People v. Wright (2005) 35 Cal.4th 964 (Wright), the California Supreme Court left open the issue of whether imperfect self-defense applied in situations where the defendant's "actual, though unreasonable, belief in the need to defend himself was based on delusions and/or hallucinations resulting from mental illness or voluntary intoxication, without any objective circumstances suggestive of a threat." (Id. at p. 966.)
Subsequently, however, in People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437 (Mejia-Lenares), the Fifth District Court of Appeal concluded that imperfect self-defense could not be predicated on psychotic delusions. (Id. at p. 1454.)
In Mejia-Lenares, the defendant asserted that he had acted in the actual belief that he needed to defend himself from imminent peril, and he claimed that he had fatally stabbed his victim because he feared the victim was transforming into the devil and wanted to kill him. (Mejia-Lenares, supra, 135 Cal.App.4th at p. 1447.) The Mejia-Lenares court held that following the decision in Christian S., supra, 7 Cal.4th at page 783, imperfect self-defense was, in theory, a species of mistake of fact. As such, it could not be founded on delusion. (Mejia-Lenares, supra, at p. 1453, referring to fn. 3 in Christian S., supra, 7 Cal.4th at p. 779.) The court reasoned as follows. A "mistake of fact is predicated upon a negligent perception of facts, not, as in the case of a delusion, a perception of facts not grounded in reality. A person acting under a delusion is not negligently interpreting actual facts; instead, he or she is out of touch with reality. That may be insanity, but it is not a mistake as to any fact." (Mejia-Lenares, supra, at pp. 1453-1454, fn. omitted.)
The Mejia-Lenares court went on to explain that the provisions of Penal Code section 28, which abolished the defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action, do not authorize the use of imperfect self-defense where the basis for diminished actuality reducing murder to manslaughter rests on delusion. It considered the statutory framework regarding mental disease and defect and concluded that the Legislature has not authorized evidence of delusions to support the use of imperfect self-defense and that the existing authorities require that the defendant's belief be " 'caused by the circumstances.' " (Mejia-Lenares, supra, 135 Cal.App.4th. at pp. 1454-1455, 1457 .) Thus, it held that "[w]hen there are no circumstances to support the belief, the doctrine [of imperfect self-defense] does not apply." (Id. at p. 1458.) The Mejia-Lenares court concluded that to hold otherwise "undercut[s] the legislative provisions separating guilt from insanity." (Id. at p. 1456.)
In full, Penal Code section 28 provides, " (a) Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged. [¶] (b) As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing...."
In this case, in essence, appellant's argument is that because the jury was not allowed to consider Dr. Froming's testimony on the issue of whether he committed manslaughter as opposed to murder, he was denied a defense. We do not agree with the People that Mejia-Lenares necessarily resolves the issue in this case. Where the mental disease or defect causes misperceptions not delusions, it seems to this court that a misperception is exactly what a mistake of fact entails. One is actually negligently interpreting facts.
Nevertheless, even if this court assumed for the sake of argument the trial court erred in limiting Dr. Froming's testimony, any error was harmless.
As explained in People v. Humphrey (1996) 13 Cal.4th 1073, a case in which the Supreme Court held the trial court erred by instructing the jury not to consider expert testimony regarding battered women's syndrome in considering the defendant's perfect self-defense claim, the court applied the standard of prejudice announced in People v. Watson (1956) 46 Cal.2d 818, 836: "Defendant contends that the instructional error unconstitutionally deprived her of her rights to present a defense and to equal protection of the laws, thus requiring reversal unless the error was harmless beyond a reasonable doubt. [Citation.] We disagree that the Chapman standard applies. The erroneous instruction may have adversely affected the defense, but it did not deprive her of the right to present one or deny her equal protection. In effect, the court excluded some evidence as to one element of the defense. When the reviewing court applying state law finds an erroneous exclusion of defense evidence, the usual standard of review for state law error applies: the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant. [Citations.]" (People v. Humphrey, supra, 13 Cal.4th at p. 1089.)
Here, the jury was properly instructed that it could consider Dr. Froming's testimony on appellant's subjective mental state in determining whether appellant premeditated and deliberated before killing Reyes. Under this instruction, by concluding that appellant acted with premeditation and deliberation, the jury must necessarily have rejected Dr. Froming's testimony otherwise the jury would have returned a verdict of second degree murder. Even if we were to apply the stricter beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (87 S.Ct. 824), we conclude any error was harmless.
B. CALCRIM No. 570
Appellant contends that the trial court erred when it instructed the jury on the doctrine of adequate provocation for the purpose of reducing murder to voluntary manslaughter. According to appellant, CALCRIM No. 570, as given by the court, misstated the law by focusing on the actions rather than the judgment of the average provoked person.
The court instructed the jury with CALCRIM No. 570 that "[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] [d]efendant killed someone because of a sudden quarrel and heat of passion if; one, the defendant was provoked; two, as a result of the provocation, the defendant acted rashly or under the influence of intense emotion that obscured his reasoning or judgment; and, three, provocation would have caused a person of average disposition to act rashly and without due deliberation. That is from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether provocation was sufficient. In deciding whether provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. [¶] If enough time passed between the provocation and killing for a person with average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] The People have a burden of proving beyond a reasonable doubt the defendant did not kill as a result of sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder." (Italics added.)
CALCRIM No. 570 was amended after appellant's trial and now provides: "In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment."
In addition to CALCRIM No. 570, the court gave a defense special instruction that stated, "If you find evidence of provocation, you must determine whether provocation is sufficient to reduce murder to manslaughter. In determining whether murder is –reduce murder to manslaughter, the issue is not whether the killing is justified. Nor is the issue whether a person of average disposition would kill under the circumstances. [¶] The issue for you to decide in this respect is whether under the circumstances a person of average disposition would rely on his judgment; or whether a person of average disposition would rely on his emotion."
Appellant argues that the CALCRIM instruction informed the jury that the reasonableness is judged from the defendants " 'react[ion] ' " and this is an incorrect statement of the law. The issue, appellant contends, is whether the provocation would cause a reasonable person to become rash, not that he would react in a homicidal manner.
Appellant asserts that in this case a rational jury could have found provocation was reasonable had it been properly instructed. The proper legal issue was whether being taunted by a group of male youths, some of whom purported to be Nortenõ gang members, being pushed to the ground, and being challenged to a fight would provoke a reasonable person to lose self-control, even for up to 20 minutes.
Appellant points out that prosecution witnesses said appellant's masculinity was challenged and he was called a "scrap." After being pushed to the ground by Reyes, he was surrounded by Reyes and his companions. It was at this point that he retreated. Miller made fun of appellant for running away and he appeared frightened, embarrassed, angry and emotional when he retreated. Everyone was laughing at him. Cabrera said that he was looking dumb as he walked away. When appellant returned and asked for Reyes, the group mockingly or sarcastically voiced " 'ooh! he's back.' " A properly instructed jury could have found appellant acted from emotion and rashness, rather than from sound judgment.
Contrary to appellant's description, the testimony was that appellant was pushed, staggered and hit a railing, but he did not fall and he was not surrounded.
A defendant commits voluntary manslaughter, not murder, when he or she unlawfully kills another person "upon a sudden quarrel or heat of passion." (Pen. Code, § 192, subd. (a).) It is worth repeating that the "heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.... ' [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, ' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (Steele, supra, 27 Cal.4th at pp. 1252-1253, italics added.)
In People v. Najera (2006) 138 Cal.App.4th 212 (Najera), the trial court instructed the jury on voluntary manslaughter. In arguing the case to the jury, the prosecutor focused on the killer's response to the provocation, contending that it was disproportionate as the provocation would not cause an average person to kill. On appeal, the court concluded that this argument was erroneous and improper, explaining that "[t]he focus [of a heat of passion defense] is on the provocation-the surrounding circumstances-and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Id. at p. 223.)
The court in Najera reached this issue despite having concluded that the defendant forfeited his claim of prosecutorial misconduct by failing to object at trial. (Najera, supra, 138 Cal.App.4th at p. 224.)
The analysis in Najera reinforces the long-standing, qualitative standard for provocation; i.e., that it be sufficient to cause an ordinarily reasonable person to act from passion rather than judgment. (See People v. Logan (1917) 175 Cal. 45, 49 [provocation sufficient to arouse the passions of the ordinarily reasonable man]; People v. Manriquez (2005) 37 Cal.4th 547, 583-584 [conduct sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection].)
More importantly, the Najera analysis protects the qualitative standard from being distorted by the quantitative notion that provocation must reasonably trigger a certain heightened level of reactive conduct, specifically lethal force, in order to reduce murder to manslaughter. Such a notion is erroneous. What negates malice is simply a state of mind obscured by passion. (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) That state of mind can be induced by any violent, intense, or enthusiastic emotion, except revenge, including anger, rage, and fear of death or bodily harm. (People v. Lasko (2000) 23 Cal.4th 101, 108.) Thus, in the context of voluntary manslaughter, provocation is sufficient if it would trigger such a state of mind in a reasonable person. It need not further cause a particular level of conduct, let alone cause a reasonable person to react with lethal violence.
Here, the court's instruction described the subjective and objective elements of heat of passion. As to the latter, it instructed the jurors that the defendant must have acted as a result of provocation that "would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.) This language conveys the correct standard. (See People v. Manriquez, supra, 37 Cal.4th at pp. 583-584.)
Next, the instruction told the jurors that they must decide "whether the defendant was provoked" (the subjective component) and whether "the provocation was sufficient" (the objective component). (CALCRIM No. 570.) To guide the latter determination, the instruction directed the jurors to consider: (1) whether an average person would have been provoked; and (2) how an average person would have reacted under the same circumstances.
Directing jurors to consider how an average person would react is not necessarily incorrect or inconsistent with the correct standard. However, the instruction does not expressly limit the jurors' focus to whether an average person would act rashly. Instead, the challenged language seems to invite jurors to consider what would and would not be a reasonable response to the provocation. More specifically, it allows, and perhaps even encourages, jurors to consider whether the provocation would cause an average person to do what the defendant did; i.e., commit a homicide. As we have explained, however, whether an average person would be provoked to kill is not a proper consideration in determining whether provocation was sufficient. Thus, insofar as the instructional language permits a jury to decide a crucial issue based on proper and improper considerations, it is ambiguous.
Nevertheless, in Najera, supra, 138 Cal.App.4th 212, the Fourth District Court of Appeal addressed a situation very similar to this case. In Najera, the defendant was sitting, drinking beer, and joking around with Victor Hernandez in front of the house where they both rented rooms, when Hernandez called the defendant a " 'jota' " (translated as "faggot"). After the defendant objected and Hernandez again called the defendant a " 'fag, ' " Hernandez stood up and pushed the defendant. The defendant fell back, then got up and fought with Hernandez. Name calling went back and forth and the two became increasingly angry. They were separated by a neighbor. Hernandez remained in the front yard and the defendant went inside. After being inside for about five to 10 minutes, during which time he went into the bathroom, kitchen, and his bedroom, the defendant returned to the front yard. He walked straight to Hernandez and slashed him in the stomach three times with a knife he had taken from the kitchen. (Id. at pp. 216-217.)
Hernandez died from his injuries, and the defendant was prosecuted for first degree murder. The trial court instructed the jury on heat of passion voluntary manslaughter, and the jury convicted the defendant of second degree murder. On appeal, the defendant contended, in part, that the prosecutor had committed prejudicial misconduct in his arguments to the jury about provocation. (Najera, supra, 138 Cal.App.4th at p. 223.) However, the defendant's trial counsel had not objected to any of the challenged statements. (Id. at p. 224.) Consequently, the defendant argued that his trial counsel was ineffective by failing to object to the misstatements or by failing to request that the misstatements be corrected. (Id. at p. 225.) The appellate court found that the defendant was not entitled to an instruction on manslaughter. " ' "[W]ords of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter." ' [Citation.]" (Id. at p. 226.) Furthermore, the court found that the defendant's trial counsel's failure to object to the prosecutor's argument was not prejudicial. (Id. at p. 228.)
There was more evidence of provocation in Najera than there was here, yet the Najera court found that it was insufficient to justify voluntary manslaughter instructions because the objective component of heat of passion was not supported by adequate evidence. As noted, this objective component depends on whether an ordinary person "would be so inflamed that he or she would lose reason and judgment." (People v. Manriquez, supra, 37 Cal.4th 547, 586.) Najera's victim owed him money, called him a "faggot, " and pushed him; then they fought. In this case, appellant was called a derogatory name and pushed and his masculinity may have been challenged, but based on Najera, we find that no rational juror could have concluded that the name-calling and a push in this case would cause an ordinary person to become so inflamed that he lost reason and judgment and would have reacted from passion rather than from judgment.
Where there is no substantial evidence that would lead reasonable jurors to conclude that the defendant is guilty of voluntary manslaughter, rather than murder, the trial court need not instruct the jury on that lesser included offense. (People v. Jackson (1980) 28 Cal.3d 264, 305, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman, supra, 19 Cal.4th at p. 162.) "[I]f the evidence which supports a [lesser included offense] is 'minimal and insubstantial, ' the trial court need not instruct on that [offense]." (People v. Jackson, supra, at p. 306.) Such was the case here.
Consequently, voluntary manslaughter instructions were not merited, and any instructional error regarding CALCRIM No. 570 could not have prejudiced appellant.
C. Failure to Instruct on Imperfect Self-Defense
Following the presentation of the defense evidence, appellant renewed his request to have the court instruct the jury on self-defense and imperfect self-defense. The trial court denied the request. Appellant argues that it was error for the trial court to refuse to instruct on imperfect self-defense.
We need not reiterate our discussion of imperfect self-defense and imperfect defense of others outlined in section II A.
The trial court was obligated to instruct on the doctrine of imperfect self-defense or imperfect defense of others if there was "evidence substantial enough to merit consideration by the jury that under this doctrine the defendant [was] guilty of voluntary manslaughter." (People v. Michaels (2002) 28 Cal.4th 486, 529 (Michaels).)
The Supreme Court has explained that "substantial evidence" in this context merely means evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (People v. Hughes (2002) 27 Cal.4th 287, 366, 367; People v. Breverman, supra, 19 Cal.4th at p. 162.) That is, of course, the familiar definition of substantial evidence, which the trial court applied in this case.
As we have explained, appellant's problem is that both imperfect self-defense and imperfect defense of others require an unreasonable belief of imminent harm. (Michaels, supra, 28 Cal.4th at p. 530.)
In support of his contention that he was entitled to an instruction on imperfect self-defense/imperfect defense of others, appellant offers the following evidence. The confrontation in front of Miller's apartment started as teasing, but it quickly escalated to Reyes establishing his Nortenõ membership, "getting in [his] face, " and pushing him to the ground. Reyes and his companions surrounded him and Reyes stared at him. When he returned to Miller's apartment, Reyes night have simply walked from the back room while holding a cell phone, but from his perspective, he saw a man emerge from somewhere out of view, holding an unknown metallic object, while the rest of the group mockingly said " 'ooh! he's back!' " He was outnumbered. He was "likely aware" that there were swords in the apartment and could reasonably conclude there were other weapons. A reasonable jury could have concluded he feared he was being attacked and reacted out of fear.
Contrary to appellant's fanciful interpretation of the record, there was no evidence that Reyes or anyone else in the group threatened appellant or his mother. There was no evidence that appellant thought Reyes was a gang member; the record shows that when appellant asked Reyes from where he came and Reyes replied "I'm from 33rd street, " all appellant said was "That's not even on the east side." Furthermore, there was no admissible evidence that appellant actually understood that Reyes or anyone from the group threatened him or his mother; that Reyes or anyone from the group brandished a weapon at appellant; or that Reyes or his group presented an imminent threat of harm to him when he entered the apartment.
Through Dr. Froming, appellant sought to introduce his out-of-court statements for the purpose of proving that at the time of the murder he had a particular mental state. Although we do not know the substance of appellant's statements to the police and to Dr. Froming, they could not be considered as circumstantial evidence of appellant's state of mind at the time of the murder. The mental state exception to the hearsay rule does not apply. "The exception is limited to out-of-court statements describing a relevant mental state being experienced by the declarant at the time the statements were made. [Citation.]" (People v. Whitt, supra, 51 Cal.3d at pp. 642-643.)
In fact, the record showed that appellant turned and walked away from Reyes and his group after the initial confrontation. No one followed him. Instead the group returned to the apartment. Ten to 20 minutes later, it was appellant who reappeared and seemed "normal" according to a prosecution witnesses. Then, on seeing Reyes, unexpectedly and without warning, appellant ran at Reyes and stabbed him with a knife. Appellant then fled the scene unharmed. A reasonable inference to be drawn from the evidence that appellant fled unharmed is that no one in the apartment was armed with anything.
On this record the trial court properly found insufficient evidence of imperfect self-defense/imperfect defense of others to warrant the requested instruction.
III Alleged Prosecutorial Misconduct
Appellant complains that the prosecutor committed misconduct in several respects. Appellant asserts that in his argument to the jury the prosecutor improperly stated the law in three ways. First, the prosecutor committed misconduct in asserting that premeditation and deliberation must be judged by an objective standard. Second, the prosecutor committed misconduct by asserting that provocation is judged from an objective standard. Third, the prosecutor committed misconduct when he stated that the law required appellant to react "under 'the direct and immediate influence of provocation' " for there to be voluntary manslaughter and then incorrectly stated the facts. Finally, the prosecutor appealed to the passions and prejudice of the jury.
The federal and state standards regarding prosecutorial misconduct are well established. " ' "A prosecutor's intemperate behavior violates the federal Constitution only if it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make a 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. ' " ' [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Furthermore, 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. [Citations.]' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
Nevertheless, it is misconduct " 'for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citations.]' " (People v. Hill, supra, 17 Cal.4th at p. 829.) Moreover, "[a] prosecutor's 'vigorous' presentation of facts favorable to his or her side 'does not excuse either deliberate or mistaken misstatements of fact.' [Citation.]" (Id. at p. 823.)
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447.) "Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
To put it another way, " '[t]o prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the [challenged] comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
We address each of appellant's contentions in turn.
A. Premeditation and Deliberation
Appellant challenges the following remarks made during the prosecutor's argument to the jury following the close of evidence.
"It's also not necessary for the People to prove the defendant maturely and meaningfully reflected upon the gravity of his act. It's just that you thought about what you did before you did it. You weighed the pros and cons, the considerations for and against doing it. It's not this, you know, mature and meaningful reflection. If that was the standard, very few people would ever commit first-degree murder. We like to think that if you really thought, as a reasonable person, maturely and meaningfully reflected, you would probably decide not to do it. That's not the standard here."
A defense objection immediately following this argument was sustained. During a break in argument, defense counsel made a record of her objection on this point. Counsel argued that the prosecutor "had deliberately explained premeditation and deliberation as though it were an objective standard."
The prosecutor stated that he agreed premeditation and deliberation were to be considered under a subjective standard and that he did not know what he said that could have been misinterpreted to mean otherwise. The prosecutor noted that he had argued that the jury could consider Dr. Froming's testimony on the issue of premeditation and deliberation, which was consistent with considering premeditation and deliberation under a subjective standard.
The trial court concluded that the prosecutor had not misstated the law. Specifically, the court found that in "relationship to the premeditation and deliberation, I think that [the prosecutor]'s argument was well within the spectrum of both his interpretation of the jury instruction and the way he framed it was an objective [sic] standard. I think it was phrased that way."
Defense counsel did not request an admonition on this point. Instead, counsel argued that based on the prosecutor's numerous instances of misconduct, an admonition would be futile and that a mistrial should be declared.
As appellant concedes, trial counsel failed to preserve a direct claim of misconduct because, although she objected to the prosecutor's remarks, she did not also request an admonition that would clearly have cured any harm. Appellant argues that to the extent there was a failure to make an adequate timely objection, trial counsel was deficient.
First, we note that the prosecutor did not misstate the law. The prosecutor specifically stated that the reasonable person reflecting maturely and meaningfully was "not the standard here."
Second, even assuming that the prosecutor's argument could have been misunderstood by the jury, an admonition would have cured any potential harm.
Third, the court properly instructed the jury on the law regarding premeditation and deliberation pursuant to CALCRIM No. 521. Further, the court instructed the jury that Dr. Froming's testimony, which was concerned with appellant's subjective state of mind, could be considered in determining "whether [appellant] acted willfully, deliberately, and with premeditation when he stabbed... Reyes to death."
Finally, the court properly instructed the jury pursuant to CALCRIM No. 200 that if it believed the attorneys' comments on the law conflicted with the court's instructions, it must follow the court's instructions. Accordingly, it is not reasonably likely the jury construed or applied the prosecutor's remark in the fashion that appellant assigns to it.
B. Provocation
Appellant claims that the prosecutor improperly argued that provocation is judged from an objective standard. Appellant challenges the prosecutor's remarks to the jury that provocation was "a reasonable person test" and required consideration of "whether a person of average disposition would have been provoked and how such a person would react in the same situation, knowing the same facts. How would an average person react to being called names and insulted and being pushed once?" Defense counsel did not object to this part of the prosecutor's argument.
Later, the prosecutor made the following remark. "Number one, the provocation, okay, being called names is not enough to make our average person act in the way that the defendant acted." The court overruled defense counsel's objection.
Subsequently, when defense counsel made a record of her objections, she did not argue, as appellant does on appeal that the prosecutor had improperly suggested that there was no subjective component to provocation. Instead, defense counsel argued only that it was improper for the prosecutor to suggest that provocation could only be found under limited circumstances such as when a person finds their spouse in bed with someone else and immediately reacts.
Next, appellant challenges the prosecutor's statement, made in response to defense counsel's argument, that getting cut off in traffic would not cause an average person to take out a gun and shoot someone. Defense counsel's objection to this argument was overruled by the trial court on the ground that the prosecutor's statements were argument.
Again, when defense counsel made a record of her objection, she explained that it was based on the prosecution's mischaracterization of her argument. Defense counsel did not raise the claim appellant makes now that the prosecutor had improperly argued the law of provocation as requiring only an objectively reasonable reaction without a subjective component.
Appellant's arguments with respect to provocation are based on Najera, supra, 138 Cal.App.4th 212, in which the prosecutor repeatedly described manslaughter as a " 'legal fiction' " in which malice is negated by heat of passion or sudden quarrel, and argued " 'the law says you can cut the defendant a break and not go murder and go voluntary manslaughter.' " (Id. at p. 220.) The prosecutor argued that in determining whether the defendant acted in the heat of passion, there was a reasonable, ordinary person standard: " 'Would a reasonable person be so aroused as to kill somebody? That's the standard.' " (Id. at p. 223.)
As noted, Najera held that the prosecutor mischaracterized the legal standards and that "[t]he focus [of a heat of passion defense] is on the provocation-the surrounding circumstances-and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Najera, supra, at p. 223.)
Nevertheless, here, as in Najera, any argument that appellant's counsel was ineffective for failing to object to the prosecutor's misstatements or by failing to request the mistakes be corrected must be rejected. A successful "claim of ineffective assistance of counsel involves two components, a showing the counsel's performance was deficient and proof of actual prejudice. [Citations.]" (People v. Garrison (1989) 47 Cal.3d 746, 786.) Thus, appellant must demonstrate " '(1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner.' " (In re Jones (1996) 13 Cal.4th 552, 561.)
"A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Nevertheless, it is not necessary to establish deficient performance before considering the issue of prejudice: " 'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079.)
Since we have concluded in section B ante that appellant was not entitled to a voluntary manslaughter instruction, defense counsel's failure to object did not cause appellant to suffer any prejudice.
Finally, appellant argues that the prosecutor improperly argued that mere words were insufficient provocation to reduce murder to manslaughter.
Having reviewed the prosecutor's argument we do not find that the prosecutor implied that as a matter of law mere words were insufficient. Essentially, the prosecutor argued that the name calling and one push in this case amounted to only slight provocation and was insufficient to support a finding of manslaughter -- an argument that was proper under the circumstances of this case. Accordingly, we reject appellant's challenge to this part of the argument.
C. Cooling-Off Period
Appellant asserts that the prosecutor misstated the law regarding "cooling off" as it related to voluntary manslaughter.
Specifically, appellant challenges the following remarks made by the prosecutor to the jury: "There is a cooling off period that specifically applies to this instruction. The cooling off period also is another thing... that negates heat of passion. If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] So we have our average person. They've been called names. They've been pushed once. And our average person has walked away. And then 10 to 15 minutes later, 10 to 15 minutes later is when the defendant goes back to the apartment and strikes. But our average person would have cooled off in those 10 to 15 minutes. Number one, provocation, okay, being called names is not enough to make our average person act in the way that defendant acted." The court overruled an objection from defense counsel.
Thereafter, the prosecutor went on, "And, secondly, enough time had passed for our average person to have cooled off.... The classic example of voluntary manslaughter... is a spouse walks in on their spouse and sees their husband or wife in bed with another person. You know, takes out their gun and shoots them seconds later. That's the kind of provocation. That's the kind of emotion that we're talking about for voluntary manslaughter heat of passion. It happened right there. And you reacted right then. And it's something, oh, my God, my spouse is sleeping with someone. Right there. That is the kind of heat of passion we're talking about." Again, defense counsel objected. This time, the court sustained the objection and reread the law on provocation, explaining to the jury that provocation "may reduce a murder from first degree to second degree and may reduce murder to manslaughter. The weight and significance, if any, are for you to decide. If you conclude the defendant committed murder but was provoked, consider provocation in deciding whether the crime was first or second degree. [¶] Also, consider provocation [in] deciding whether the defendant committed murder or manslaughter. What the law says understood from the heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted on the deliberate and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or a long period of time."
During a break in argument, defense counsel made a record of her objection. Specifically, with regard to the cooling-off period counsel noted, "the prosecutor gave an example of seeing... something that would provoke a person, a couple in bed, a married person coming home and finding his or her spouse in bed with someone else and saying that if we were in a situation where [appellant] and [Reyes] got into the verbal altercation outside of the apartment, [appellant] was pushed and he reacted immediately, then we would have a question in this case about whether it was first or second or whether there was sufficient provocation to make it manslaughter. That is a misstatement of law."
The prosecutor explained that his intent in argument was to give examples of what would amount to sudden quarrel or argument and contrast those examples with the facts of the instant case. He did not mean to imply that the examples he gave set some type of minimal provocation or maximum cooling off period under the law.
We disagree with appellant's interpretation of the prosecutor's remarks concerning the cooling off period as it relates to provocation. Moreover, we point out that the court instructed the jury before argument and again during the prosecutor's remarks on the law regarding "cooling off" pursuant to CALCRIM No. 570, which states that "[s]ufficient provocation may occur over a short or long period of time" and that "[i]f enough time passed between the provocation and the killing for a person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter."
Since we must presume the jury followed the court's instructions as given (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331), and in light of the court's clarifying instructions during the prosecutor's argument, as well as the court's general instructions to the jury regarding both the law on the cooling off period for provocation, and the jury's duty to follow the court's instructions on the law (CALCRIM No. 200), there is no reasonable likelihood that the prosecutor's remarks misled the jury as appellant suggests. (People v. Morales (2001) 25 Cal.4th 34, 47.)
D. Improperly Stating the Facts
Appellant asserts that the prosecutor committed misconduct by improperly stating the facts. Specifically, according to appellant, the prosecution described the defense claim of provocation as resting almost exclusively on taunting by Reyes and his friends.
In fact, the prosecutor argued the following. "The defendant and [Reyes] had an argument and called each other names. You know what, [Reyes] and some of these acquaintances, they made fun of his tooth.... There is always something that people can make fun of. That's the motive. We're not going to say as a society, oh, you make fun of somebody, oh, it's okay to kill them." At this point, the trial court sustained a defense objection.
The prosecutor went on, "[t]hey called each other names. [Reyes] pushed the defendant once and challenged him to a fist fight."
Later, the prosecutor stated with regard to provocation, "[s]light or remote provocation is not sufficient. Remote. In other words, remote in time. Remote in place. That's not sufficient.... You're a Dave Chapelle crackhead. You're a this. You're a that. Big deal." Again, the court sustained a defense counsel objection to these comments.
Then, the prosecutor argued, "[s]o we have our average person. They've been called some names. They've been pushed once. And our average person has walked away."
Thereafter, the prosecutor argued, "number one, the provocation is not enough, name-calling and one push, nobody took out-[Reyes] didn't take out a knife... when they had the argument. It's one push. No weapons."
Contrary to appellant's argument, the prosecutor did not argue that the only provocation was taunting. To the extent that the prosecutor focused on the words exchanged between appellant and Reyes, such argument was not improper. The prosecutor did not argue that there had been no physical contact between appellant and Reyes. To the contrary, he argued that name calling and one push was insufficient provocation. The prosecutor's argument was a fair comment on the evidence and did not exceed the wide latitude afforded during argument. (People v. Hill, supra, 17 Cal.4th at p. 819.)
At one point the prosecutor argued that a three-inch stab wound showed intent to commit first degree murder. Appellant contends that this argument was not supported by the record because the forensic medical examiner testified that the amount of force used could not be inferred from the depth of the wound.
The medical examiner testified that "[i]f the tip of the knife is very sharp, you do not have to apply a lot of force for it to follow through with the rest of the blade going in easily."
The prosecutor argued as follows. "Remember, James Campbell told us he had seen the defendant previously with a knife that the blade looked maybe three to four inches long. The knife had to go through the jersey and the shirt that [Reyes] was wearing. Then it went in an additional three inches. So that's pretty much getting the knife in as far as you can get it in. That really illustrates the defendant's intentions here to kill [Reyes]." The court sustained defense counsel's objection.
The prosecutor went on, "... you also have the back of the head here. Back of the arm. Again, three inches. All these stabs are evidence from which you can infer what the defendant's intentions were in this case." Again, defense counsel objected. The court overruled the objection.
During a break in argument, defense counsel made a record of her objection. She argued that the prosecutor deliberately misstated the medical examiner's testimony because he stated that based on the stab wounds he could not opine on the degree of force used to stab Reyes.
The prosecutor responded that he believed he could properly argue based on the fact that the knife had traveled through Reyes's clothing, that additional force would be needed to penetrate the clothing. The court found the prosecutor's remarks were fair argument based on the facts of the case. We agree.
Appellant inflicted a three inch stab wound to Reyes's chest. This stab wound punctured Reyes's heart and was a cause of his death.
Based on these facts, it was proper for the prosecutor to argue that the depth and location of the stab wound was evidence that appellant had the intent to kill when he stabbed Reyes. (See People v. Lashley (1991) 1 Cal.App.4th 938, 944-946, [inference of intent to kill where act of firing toward a victim at close, but not point blank range, in a manner that could have inflicted mortal wound had bullet been on target].)
Although the medical examiner stated that the force with which the stab wounds were inflicted could not be determined from the depth of the wounds, given that a knife would have had to penetrate the clothing before entering Reyes's body a reasonable inference to be drawn is that additional force was needed-something that the medical examiner did not address. Moreover, the prosecutor's remarks did not imply that any particular amount of force was needed to inflict the wounds.
Accordingly, the prosecutor's comments were a fair comment on the evidence.
E. Passions and Prejudice of the Jury
Appellant contends that the prosecutor appealed to the passions and prejudice of the jury when he asked the jury at the end of his rebuttal argument, " 'how would you explain to [a] friend that you voted not guilty in this case on these facts.' "
Defense counsel objected to this argument, but her objection was overruled. Thereafter, according to appellant, the prosecutor continued to argue how certain facts would sound unreasonable to the public.
During rebuttal, the prosecutor stated the following. "Before I conclude talking about first-degree murder, defense counsel has said to you many times you have to have an abiding conviction, and this is a decision of a lifetime. Okay. So I want you to think about how you would explain to someone, you're talking to a friend six months or a year from now, and how would you explain to the friend that you voted not guilty in this case on these facts." At this point, the court overruled a defense counsel objection.
The prosecutor continued as if he was talking to a friend, "[s]o your friend says, you know... I understand you sat on a case where there was a murder charge. [¶] Yeah. [¶] You say, we voted voluntary manslaughter. [¶] And so your friend says, oh, well. [¶] You say it was like heat of passion, sudden argument kind of thing. [¶] Oh, your friend says, was it like in a bar where they're yelling back and forth and, you know, one guy gets a lucky punch in or something? [¶] No. No. [¶] Well, were they -- was it like some heated argument and then the guy, you know, said I'm going to screw your wife or I'm going to kill you and the other guy whips out a gun and shoots him? [¶] No. [¶] Your friend says, oh, well, tell me about it. [¶] Actually, the defendant walked away. [¶] Oh, well, when he walked away, did the other guys like start yelling at him and did they sneak up and like fake punch him? Did they taunt him and keep taunting him like that until right up to the moment when the defendant turned around and shot him? [¶] No. They just let the guy walk away. They just went back in the apartment. [¶] Okay. So then I bet those guys in the apartment, they went back up to where the defendant was. Right? And they kind of all rushed at him and screaming at him again and then he shot them in his own house or something? [¶] No. Actually, the defendant came back to their apartment 10 to 15 minutes later. Knocked on the door. Asked for the victim. The victim walked in. Defendant ran in and stabbed him. Ran out. Took the knife with him. [¶] At this point your friend is looking at you like, I don't get it. I don't understand. That's first-degree murder. That's cold. And that's this case. [¶] You start with first-degree murder in this case and I don't believe you'll go beyond that, because that's what happened."
Following the prosecutor's rebuttal argument, the court recessed. Defense counsel again raised an objection to the prosecutor's argument. Specifically, defense counsel argued that the prosecutor's argument was contrary to CALCRIM No. 200's proscription against allowing public opinion sway the jury. Defense counsel argued, "[r]eally what that conversation with the jurors was, was how are you going to explain to the public if you don't convict him of murder. That's not something they should be taking into consideration." Defense counsel moved for a mistrial on this basis and if a mistrial was not granted, that the court should instruct the jury not to allow public opinion to influence them.
The court agreed to instruct the jury as requested, but stated that it did not understand the prosecutor's argument as being an appeal to the passions of the jury. Rather, the court thought that the prosecutor was asserting that a finding of beyond a reasonable doubt had to be based on reason and was asking the jury how it would explain that reasoning.
The prosecutor stated that he was responding to defense counsel's argument concerning abiding conviction. "And how would you, how are you going to feel about this in a year or three years or 25 years. So I was simply responding to that. I absolutely was not, and I don't believe any jury would interpret, that I was talking about public opinion. I was simply trying to say, much like I did earlier when you have to accept reasonable conclusions, but you must disregard unreasonable conclusions. The defense put forth a scenario about what happened in the apartment and I explained why that was not A, based on the evidence, or B, a reasonable interpretation of the evidence. [¶]... I was saying to the jury... try to give your reasons to explain why you would vote voluntary manslaughter based on these facts and having them talk to a friend was merely a theoretical, dramatic -- this isn't the theater, but it was a device using to try to get them to think to themselves how would I articulate the reasons and explain the reasons for voting voluntary manslaughter. And what I was trying to demonstrate with the jurors was that because you would not be -- what questions might, you know, somebody pose to you, what questions might you have in your mind when you're thinking about voting for voluntary manslaughter. I think what I was trying to show the jurors, it's so difficult, if not impossible, to explain voting for voluntary manslaughter because that would not be a reasonable interpretation of the facts in this case."
The court ruled that it would give the requested instruction "because that's the law, " but noted that what the prosecutor had articulated concerning his intent was "the impression [the court] got... in listening to his argument. It was not an attempt to prey on public opinion. However, there is no harm for me to reiterate that instruction."
When the jury returned, the court re-read CALCRIM No. 200 as follows, "Remember what I said in regards to the law when I read that to you before we started closing arguments. [¶] What the law says is you cannot allow public opinion to influence your decision. Keep an open mind. Exchange your thoughts and ideas about this case. Stating your opinions too strongly at the beginning or immediately announcing how you plan to vote may interfere with an open discussion."
It is misconduct for a prosecutor to appeal to the passions and prejudice of the jury. (People v. Mayfield (1997) 14 Cal.4th 668, 803.) An appeal to the passions and prejudices of the jury is an appeal that is wholly irrelevant to any facts or issues in the case. (Viereck v. U.S. (1943) 318 U.S. 236, 247 [63 S.Ct. 561].)
A prosecutor is allowed in rebuttal argument to respond fairly to defense counsel's arguments. (People v. Bryden (1998) 63 Cal.App.4th 159, 184.)
We agree with the trial court that the prosecutor's remarks were not aimed at inciting the passions and prejudices of the jury. In this case, the prosecutor spent most of this part of his argument reviewing the facts, albeit in a novel fashion in response to defense counsel's argument that the jury had to have an abiding conviction and that the decision they would make was a decision of a lifetime. Although we do not find these comments to be misconduct, any misunderstanding by the jury was remedied by the court's admonition not to allow public opinion to influence a decision.
Defense counsel had argued, "[w]e talked about a decision of a lifetime yesterday. The fact you're making an extremely important decision for another person and then you're walking away. That means if someone were to ask you six months from now, do you know beyond a reasonable doubt what happened in that apartment? Do you know beyond a reasonable doubt what was going through [appellant]'s mind at the time in question that your answer would be the same. And five years your answer would be the same. 25 years from now, your answer will be the same. It's an abiding conviction. It's not today I could come down on this side but tomorrow I might come down on this side. It has to be something that will last. We only get one shot."
The ultimate question to be decided by this court is had the prosecutor refrained from the conduct, is it reasonably probable that a result more favorable to the defendant would have occurred. (People v. Haskett (1982) 30 Cal.3d 841, 866.) To the extent that the jury may have misunderstood the prosecutor's remarks as appellant suggests, the court's re-reading of CALCRIM No. 200 as part of its concluding instructions forecloses any possibility that the prosecutor's arguments misled the jury in an objectionable fashion.
IV. Cumulative Error
Lastly, appellant claims the judgment must be reversed because of the cumulative prejudicial effect of all of the alleged errors. We disagree. No serious errors occurred, which whether viewed individually or in combination, could possibly have affected the jury's verdict. (People v. Martinez (2003) 31 Cal.4th 673, 704; People v. Valdez (2004) 32 Cal.4th 73, 128.) Appellant was entitled to a fair trial, not a perfect one. (People v. Bradford (1997) 14 Cal.4th 1005, 1057.)
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., PREMO, J.
Furthermore, our review of the record reveals that these were not appellant's actual statements, rather they were the District Attorney's and trial counsel's interpretation of what appellant said.