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People v. Cunningham

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Nov 6, 2019
G056716 (Cal. Ct. App. Nov. 6, 2019)

Opinion

G056716

11-06-2019

THE PEOPLE, Plaintiff and Respondent, v. LOGAN JAMES CUNNINGHAM, Defendant and Appellant.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF3056) OPINION Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

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Logan James Cunningham stabbed Jason Torres during a fist fight. Torres died shortly thereafter. At trial, Cunningham was convicted of second degree murder and sentenced to 16 years to life in state prison.

Cunningham argues that the prosecutor misstated the standard for provocation related to voluntary manslaughter during closing argument. He argues that as a result of this prosecutorial error his due process right was violated. We disagree and affirm the conviction.

FACTS

As Cunningham was giving Torres a ride home, they began to argue. Cunningham pulled over and the two men exited the vehicle and began to fist fight. Both men threw punches. Eventually, Cunningham stabbed Torres in the chest. Torres died as a result of the stabbing.

The court instructed the jury before closing arguments. The instructions included CALCRIM No. 200, which reads in part: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." After providing instructions regarding the charged offense of second degree murder, the court appropriately read CALCRIM No. 570, which laid out the possible basis for a guilty verdict on the lesser included offense of voluntary manslaughter based on a killing done during a sudden quarrel or in the heat of passion. That instruction informed the jury that: "The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." The instruction also said, "You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment."

During closing argument, the prosecutor discussed the evidence that suggested Cunningham was the person who stabbed Torres and that the stabbing met the elements of a second-degree murder. The prosecutor then shifted his focus to "possible defenses or defense issues . . . ." These included voluntary intoxication and heat of passion. The prosecutor discussed the elements of heat of passion set forth in CALCRIM No. 570: "So, again, three things. He has to be provoked. And then as a result of that provocation, he has to act rashly and under the influence of intense emotion. [¶] So, that would be what we would call the subjective component of this. In other words, that has to actually be why he stabbed Jason Torres. [¶] But even with those first two, you still wouldn't be there. [¶] Then, 3, that same provocation would have caused . . . a person with average disposition to act rashly and without due deliberation. [¶] So, it is not just him, the average person would also have to have that response."

The prosecutor then addressed the relationship between heat of passion and voluntary intoxication: "[W]hen you look at whether the provocation would cause a person of average disposition to act rashly and without due deliberation, from passion rather than judgment, you do not take into account the fact that he is high on methamphetamine." He asked the jury to consider "whether a person of average disposition in that same situation and knowing the same facts, would have reacted from passion rather than from judgment."

The prosecutor argued there was no evidence that Cunningham was provoked. He asserted that killing in anger was not the same as killing in the heat of passion stating, "Again, you need this provocation. And then that needs to be sufficient for an average person. And then that has to be why you acted."

The prosecutor returned to the third element of CALCRIM No. 570 and concluded, "[The third element] is just simply not there. This was just a fist fight. People get in fist fights all the time and exercise judgment. Sober people getting in fights can exercise judgment, and they do. They exercise restraint. [¶] People all the time get in fights. And when it is over, when one person goes down and they've had enough, they back off. They might even ask, have you had enough? So people get in fights all the time and exercise judgment. [¶] Now, sometimes they make a decision to keep carrying on and hurt another person. That does happen. That doesn't mean, though, that it is heat of passion. They're making the decision to continue the fight. [¶] So, there is no question the average person can exercise judgment in the midst of a fight. People do it all the time. [¶] [Thus], any average person, even a person who gets in a fight, would recognize that in the midst of a fist fight, to pull a knife on the other party is a major escalation, a major escalation of the confrontation . . . . [¶] Even taking the mindset of somebody involved in a fight, people who have access to weapons in fights, again, exercise restraint. They make decisions. I am not going to use a knife in this fight. I am not going to use a weapon in this fight."

The prosecutor completed his heat of passion discussion by arguing that there was insufficient evidence to support the conclusion that Cunningham was provoked. During his rebuttal argument, the prosecutor renewed this assertion when he asked the rhetorical question: "Do you really think an average person in these guys' situation, couldn't think it through, would have acted rashly, couldn't have exercised judgment?"

DISCUSSION

In evaluating a claim of prosecutorial error during closing argument, we must first determine whether any error occurred "keeping in mind that "'[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom'" [citation], and that a prosecutor 'may "vigorously argue his case" . . . , "[using] appropriate epithets warranted by the evidence.'"" (People v. Welch (1999) 20 Cal.4th 701, 752-753.)

If we conclude that an error did occur, we then determine whether the error was prejudicial. In order to reverse a conviction, we must find a reasonable likelihood that "the jury understood or applied the complained-of comments in an improper or erroneous manner." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.)

Cunningham was convicted of second degree murder. The jury was properly instructed that voluntary manslaughter is a lesser included offense of murder. A defendant commits voluntary manslaughter when he intentionally kills in the heat of passion. (Pen. Code, § 192, subd. (a).) Heat of passion is "a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation." (People v. Beltran (2013) 56 Cal.4th 935, 942.) The provocation is legally sufficient if it would cause a person of average disposition "to react from passion and not from judgment." (Id. at 939.) The provocation need only be sufficient to move the average person to act out of passion; it is not required that the average person be moved to kill. (Id. at 949.)

Cunningham asserts that the prosecutor erred during his argument when he discussed the concept of provocation as it relates to heat of passion. He asserts that this error was equivalent to the jury receiving an improper instruction concerning heat of passion and, as a result, his due process right was violated.

We agree the prosecutor made a misstatement concerning the law during his closing argument. We disagree that this misstatement effectively amounted to an incorrect instruction or that it prejudiced Cunningham.

When discussing sufficient provocation related to voluntary manslaughter, the prosecutor argued: "[the provocation] has to actually be why [Cunningham] stabbed Jason Torres. [¶] . . . [¶] Then . . . that same provocation would have caused . . . a person with average disposition to act rashly and without due deliberation. [¶] So, it is not just him, the average person would also have to have that response." This is a misstatement of the law because it requires the jury to conclude that an average person would have reacted to provocation in the same way that Cunningham did. That is not so. It is prosecutorial error for a prosecutor to misstate the law during closing argument. (People v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21.)

We must evaluate this error within the full context of the prosecutor's closing argument and the entirety of the instructions given to the jury to determine if it caused Cunningham to suffer prejudice. When considered in that context, we conclude that it did not.

Before hearing the prosecutor's closing argument, the court read to the jury CALCRIM No. 570, which sets forth the elements of heat of passion. The instruction correctly summarizes the law related to provocation. (People v. Beltran, supra, 56 Cal.4th at 956.) The jury was also instructed that any conflict between the attorneys' closing arguments and the jury instructions must be resolved in favor of the jury instructions. (CALCRIM No. 200.) "Jurors are presumed able to understand and . . . to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) The prosecutor correctly argued the rules regarding provocation several times in his initial closing argument, and again in his rebuttal argument. In light of the court's correct instruction and the prosecutor's otherwise accurate comments on the subject, we do not find a reasonable likelihood that the jury misunderstood or misapplied the provocation rules here.

Cunningham asserts the prosecutor's argument improperly focused the jury on the act that resulted from the provocation rather than the mental state caused by the provocation. We disagree. In the portion of the argument highlighted by Cunningham, the prosecutor argued (1) that there was insufficient evidence that Cunningham was provoked; and (2) that the average person in a fight is able to act out of judgment rather than passion. Each argument focused attention on elements of CALCRIM No. 570. The first argument was proper because CALCRIM No. 570 requires a finding that Cunningham was actually provoked. The second argument correctly focused on the language regarding the nature of the required provocation.

Finally, the Attorney General argues that Cunningham forfeited any claim on appeal related to prosecutorial error because he did not make a timely objection. In response, Cunningham argues that if he forfeited such claims, this forfeiture was the result of ineffective assistance of counsel. Because we have concluded that the prosecutorial error did not have any prejudicial impact on the trial, any analysis related to forfeiture and ineffective assistance of counsel is unnecessary.

DISPOSITION

The judgment is affirmed.

GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.


Summaries of

People v. Cunningham

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Nov 6, 2019
G056716 (Cal. Ct. App. Nov. 6, 2019)
Case details for

People v. Cunningham

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LOGAN JAMES CUNNINGHAM, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Nov 6, 2019

Citations

G056716 (Cal. Ct. App. Nov. 6, 2019)