Filed 9/11/18 P. v. Johnson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
Plaintiff and Respondent,
MATTHEW BENJAMIN JOHNSON,
Defendant and Appellant.
O P I N I O N
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos, Britton B. Lacy, and Christopher Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Matthew Benjamin Johnson, of the first degree murder of Ronald Bridges and found defendant personally used a deadly weapon, a knife, in the commission of the murder. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).) Defendant admitted two prison priors (§ 667.5, subd. (b)) and was sentenced to 28 years to life in prison.
Defendant claims the trial court prejudicially erred (1) in instructing the jury on the meaning of lying in wait in response to a jury question, (2) in failing to define “provocation” for second degree murder, and (3) in failing to instruct on involuntary manslaughter. He also claims (4) the prosecutor prejudicially erred during her closing argument, (5) defense counsel rendered ineffective assistance in several respects, and (6) the cumulative effect of the errors requires reversal. We find no instructional error and no prejudicial prosecutorial error or ineffective assistance of counsel.
Accordingly, we affirm the judgment.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
In March 2015, M.G. and her boyfriend of three years, Bridges, were homeless and living under the Pachappa Bridge in Riverside. M.G. was pregnant. M.G. and Bridges slept to the side of the railroad tracks that lay beneath the bridge, and they kept their bikes locked on the steep hillside that descended to the tracks. Several of Bridges’s friends regularly visited the camp, including defendant, known as “Demon,” and another man, Jesse.
Around noon on March 13, the day Bridges was killed, M.G. left the camp to get a cigarette while Bridges stayed at the camp. As she was leaving, M.G. saw defendant approaching the camp with another person she did not recognize. After M.G. returned to the camp around an hour later, defendant and the other person were no longer there, and Bridges was “upset” and “felt bad” about something he and defendant had discussed.
Later that day, Jesse visited the camp. A couple of hours later, after it was dark, M.G., Bridges, and Jesse decided to leave the camp to get something to eat. While M.G. waited on the tracks for Bridges to unlock the bikes on the hill, M.G. heard someone approaching on the tracks and, using her flashlight, saw that the person was defendant. Another person M.G. did not recognize was “standing back,” around 15 feet behind defendant.
Defendant and the other person startled M.G. They did not use a flashlight as they approached, and defendant did not identify himself, which was “very unusual.” In the past, defendant had announced himself before he approached the camp, and it was customary for people, especially friends, to identify themselves as they approached a camp. To M.G., it was “strange” that defendant did not announce himself when he approached and that he had his head down and his hood over his head. It appeared to M.G. that defendant was hiding his identity.
After defendant approached, Bridges said, “‘What’s up?,’” defendant said, “‘Can I talk to you?,’” and Bridges walked down the hillside to meet defendant. Defendant walked towards Bridges, and M.G. remained standing on the tracks near Bridges. Without saying another word or indicating he was angry with Bridges, defendant suddenly swung a weapon at Bridges and stabbed Bridges in his chest. M.G. did not see that defendant had a knife in his hand until he swung the knife at Bridges. Defendant was holding the knife in his right hand, in “a sideways” fist with his knuckles up, and with his sleeve pulled over his right hand in order to conceal the knife. Defendant swung the knife “so hard” at Bridges that M.G. heard the knife break through Bridges’s chest.
After he stabbed Bridges, defendant walked away, laughing. The person who was with defendant never stepped forward or identified himself. Bridges was bleeding, asked M.G. to get help, and began running down the tracks in the opposite direction defendant had gone. After running 10 to 20 feet, Bridges fell face first on the tracks and began to convulse. M.G. ran to Bridges, rolled him over, and tried to comfort him while she screamed for help and tried to call 911. M.G. was unable to reach 911 because her cell phone was out of service, but neighbors heard her cries and called 911.
Bridges was shaking and bleeding profusely. Jesse was present, but M.G. did not see where Jesse was at the time of the stabbing. After the stabbing, Jesse was running back and forth, panicking. After Jesse ran in the direction that defendant had gone after the stabbing, M.G. saw defendant shine a light on Jesse and heard defendant say, “‘Is he dead yet?’” Defendant never tried to help Bridges. The neighbors who called 911 assisted with Bridges until emergency responders arrived. M.G. held Bridges until the police arrived, when she was pulled away from his body. She believed Bridges stopped breathing while she was holding him.
Shortly after the stabbing, M.G. identified defendant as the perpetrator. The day after the stabbing, officers contacted people who lived in the Santa Ana river bottom and asked them for help in finding defendant. As officers were walking through the river bottom, they saw two males around 50 to 75 yards away, one of whom was wearing a white baseball cap. The two men ran out of view when they saw the officers. Later that evening, the officers found defendant in the river bottom as he was trying to make his way up an embankment, and defendant was taken into custody. At that time, defendant was wearing a white baseball cap.
Detectives interviewed defendant the night after the stabbing, and a video of the interview was played for the jury. During the interview, defendant initially denied any involvement in Bridges’s death, but then admitted he stabbed Bridges when he went to Bridges’s camp with “Mad Dog.” Defendant said the stabbing was an “accident,” and he was angry with Bridges for saying his girlfriend had cheated on him with Mad Dog. Defendant said he threw the knife away somewhere in the river bottom. The knife was never recovered.
Dr. Mark McCormick, a forensic pathologist with the Riverside County Sheriff-Coroner’s Office, reviewed the autopsy his colleague had performed on Bridges. Dr. McCormick did not note any injuries to the face and/or any significant injuries to the hands, other than a couple of scratches and scrapes that could have resulted from climbing up and down rocks. Dr. McCormick also did not see any significant wounds on the palms or forearms that would be considered defensive wounds. There was a single stab wound, approximately one inch long and four inches deep, in the center of Bridges’s chest. The wound went through the sternum (breastbone), through the pulmonary trunk (large vessel leaving the heart and going to the lungs), and through the heart itself.
The cause of death was the stab wound to the chest. An accidental push of a knife would not have generated sufficient force to pierce the breastbone; at least a moderate amount of force was required to pierce the breastbone. The heart would have stopped beating and death would have occurred from within a few seconds to a few minutes.
B. Defense Evidence
Jesse testified he remembered the day of the incident, but his recollection was “a little fuzzy.” Jesse was hanging out on the tracks near the bridge with Bridges and M.G. around 8:00 p.m. As Jesse began walking home, toward the Riverside Plaza, he saw two other people, about 40 feet away, walking towards Bridges and M.G., and each of them had a flashlight. Jesse did not know who the two people were, but he assumed they knew Bridges and M.G. The two people did not shine their flashlights, announce their presence, or say they were there to see Bridges; they did not say anything. Jesse did not think any trouble was about to happen. Before he heard M.G. scream, Jesse did not hear anyone yell or scream, or hear any argument or hostile words exchanged, and he did not hear a scuffle as if people were fighting on the gravel.
After he heard M.G. scream, Jesse turned around and started to walk towards M.G. At that point, M.G. and Bridges were running towards Jesse, and when Jesse reached them they were “just sitting there on the tracks” and M.G. was screaming for help. Jesse grabbed one of Bridges’s flashlights to see what was the matter and saw that Bridges was covered in blood. Jesse started yelling for help, too. From “off in the background,” Jesse thought he heard someone say something like, “‘Is he dead yet?’” or “‘Is he dead or alive?’” Jesse could not tell whether the person was talking to him or to someone else. Jesse did not see anyone running away from the scene; he was focused on Bridges.
Defendant testified in his own defense. He said he did not mean to stab Bridges and the stabbing was an accident. Earlier that day, Bridges told defendant that Mad Dog was bragging about having slept with defendant’s girlfriend. When he first heard the rumor, defendant was angry at his girlfriend, confronted her, and hit her multiple times. After his girlfriend denied the infidelity, defendant biked to Mad Dog’s house, planning to fight with Mad Dog. Before going to Mad Dog’s house, defendant clipped a closed knife to the outside of his pocket. When he confronted Mad Dog, Mad Dog also denied the infidelity.
Defendant then wanted to confront Bridges about what Bridges had told him, and Mad Dog agreed to accompany defendant to Bridges’s camp. Before they went to the camp, Mad Dog told defendant about something that had happened the previous day between Mad Dog and Bridges. Defendant knew Bridges did not like to fight, so defendant thought that Bridges told defendant what he did in order to get defendant to fight Mad Dog so that Bridges would not have to fight Mad Dog.
Defendant thought he and Mad Dog could confront Bridges, that Mad Dog could ask Bridges why Bridges was starting rumors, and that defendant would then fight Bridges. Defendant wanted to fight Bridges because he believed Bridges had lied to him and betrayed him. He was also angry because he had beaten up his girlfriend for no reason. He intended to confront Bridges, hit him in the mouth, and ask him if he had lied to him. He did not intend to stab or kill Bridges.
Defendant and Mad Dog rode their bikes near Bridges’s camp, then approached the camp on foot. Defendant thought he used a flashlight all the way down the tracks. His knife was still folded and clipped to the outside of his pants. He did not call to Bridges to say he was coming or that he wanted to talk or to fight. He saw a flashlight on the tracks, saw another flashlight off to the side of the tracks, and remembered flashlights being shined on him as he neared the camp. He also remembered seeing Bridges by the bikes, partially up the hill.
As they approached the camp, Mad Dog fell behind and defendant’s adrenaline started pumping. After Bridges said, “‘What’s up?,’” defendant asked Bridges if he could talk to him. His “[p]ulse went up” and he was experiencing “a blackout rage.” He did not recall when he opened the folding knife so that it was a fixed blade, and he did not recall having the knife concealed in his sleeve. Bridges came down the hill, and as soon as they came within arm’s reach of each other, defendant swung the knife “fast” at Bridges. Defendant said he swung the knife towards Bridges’s side, but Bridges turned, and defendant accidentally hit Bridges in the chest with the knife. Defendant also said he did not realize he had a knife in his hand until he swung at Bridges.
Based on where he stabbed Bridges and the “force . . . and the sound of it,” defendant knew it was “really bad.” The sound was “like a loud thump, slash, crunch sound.” Bridges put his hand on his chest, said, “‘Oh, my God, I’m bleeding,’” and turned and ran the other way. Defendant knew he had stabbed Bridges, and told Mad Dog, “We got to go. I just stabbed him.” Defendant also turned toward Bridges and said, “I don’t do your dirty work,” which is what he meant to say when he was going to punch Bridges in the mouth.
Defendant admitted he did not grab Bridges and apologize, say he did not mean to stab him, make any effort to help him, or stay until first responders arrived. He knew Bridges was not okay, yet he turned and walked away. Mad Dog was walking towards defendant, and defendant said they needed to go because he stabbed Bridges. Defendant thought Mad Dog said something like, “‘Is he dead yet?’” or “‘Is he dead or is he alive?’” Defendant and Mad Dog left the area on their bikes in different directions. Defendant denied laughing as he left the scene.
Defendant still had the knife on him and the blade had blood on it. He went to his friend Pete’s house, where he washed his hands with bleach and washed the blood off of the knife. After he left Pete’s house, defendant went to the river bottom and threw the knife into some bushes. He learned the next day that Bridges had died, and that the police were looking for him as the murder suspect. He deliberately avoided the police.
When the police interviewed him, defendant initially lied. He first said he was not the culprit, then he tried coming up with an alibi, and then he said it was an accident. He initially said he had not carried a knife in almost a year, but then he said he routinely carried a knife, mainly for recycling. He remembered stabbing Bridges, but claimed he went into an adrenaline rush where everything sped up and it was all over before he knew it. He also remembered leaving his bike by trash cans, climbing down the rocks, walking down the tracks, calling Bridges down from the rocks, walking towards Bridges as Bridges came down the rocks, swinging the knife, hitting Bridges in the chest, and that just as he swung the knife into Bridges’s chest it was a “fatal mark.” He knew that swinging a knife into someone’s body is dangerous to human life, but he did it anyway. To his knowledge, Bridges was unarmed.
A. The Trial Court Correctly Instructed the Jury that the Term “Purpose,” as Used in the Instructions on Lying-in-wait Murder, Meant “Plan and/or Intent”
Defendant claims the court impermissibly lessened the prosecution’s burden of proving the mental state element of lying-in-wait murder by instructing the jury that the term “purpose,” as used in the instructions on lying-in-wait murder (CALCRIM No. 521), meant “plan and/or intent.” We conclude the clarifying instruction was correct and did not allow the jury to convict defendant of lying-in-wait murder without finding he acted with either express or implied malice.
1. Relevant Background
The jury was instructed on two theories of first degree murder: (1) premeditation and deliberation and (2) lying in wait. (CALCRIM No. 521.) On lying-in-wait murder, the jury was instructed pursuant to CALCRIM No. 521 that: “The defendant murdered while lying in wait if: [¶] 1. He concealed his purpose from the person killed; [¶] 2. He waited and watched for an opportunity to act; [¶] AND [¶] 3. Then, from a position of advantage, he intended to and did make a surprise attack on the person killed.” CALCRIM No. 521 also told the jury: “A person can conceal his or her purpose even if the person killed is aware of the person’s physical presence,” and “[t]he concealment can be accomplished by ambush or some other secret plan.”
During its deliberations, the jury sent the court a note asking whether the word “purpose,” as used in the phrase “‘concealed his purpose,’” meant “his intent.” In discussing the jury’s question with counsel outside the jury’s presence, the court said the language of CALCRIM No. 521 indicated that “concealing his purpose” meant “concealing a plan or intent of what the action was to be.”
The prosecutor said her “only hesitation” with the court’s view was that, in this case, defendant’s “purpose” was “to use a knife” against Bridges; thus, the word “purpose” could either mean defendant’s intent or “to use a knife” against Bridges. Defense counsel argued that the term “purpose” was “defined in the totality of the instruction [CALCRIM No. 521] and its common usage,” and argued the jury should be directed to look at the totality of the instruction, how it related to the other instructions, and to use the “common, everyday usage” of the term “purpose.”
The court concluded that CALCRIM No. 521 as a whole indicated that the phrase “conceal his purpose” meant to conceal “his plan” or “his intent,” regardless of whether his plan or his intent was to stab, kill, or punch Bridges. The court thus responded to the jury’s note by writing on it, “[p]urpose means plan and/or intent.” (Italics added.)
Defendant claims the court’s clarifying instruction that “purpose means plan and/or intent” erroneously lessened the prosecution’s burden of proving the mental state element of lying-in-wait murder. He argues the instruction (1) improperly injected the irrelevant consideration of “plan” into the jury’s deliberations, (2) incorrectly informed the jury that “murderous intent” was not required for lying-in-wait murder, and (3) ineffectively clarified the jury’s apparent confusion regarding the requisite mental state for lying-in-wait murder.
We apply the independent or de novo standard of review in determining whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
To begin with, the court’s clarifying instruction that “purpose means plan and/or intent” was correct, and did not improperly inject the element of “plan” into the jury’s deliberations. In murder by lying in wait, “concealment of purpose” is synonymous with concealment of “plan and/or intent.” As our Supreme Court has observed, “[t]he factors of concealing murderous intent, and striking from a position of advantage and surprise, ‘are the hallmark of a murder by lying in wait.’ [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 202.) Additionally, “‘“[t]he element of concealment is satisfied by a showing ‘“that a defendant’s true intent and purpose were concealed by his actions or conduct.”’”’” (People v. Hillhouse (2002) 27 Cal.4th 469, 500, italics added.)
Thus, substituting the word “plan” for “purpose” or “intent,” or using these three terms conjunctively, as the court’s clarifying instruction effectively did, did not change the meaning of the “concealment of purpose” element of lying-in-wait murder. To the contrary, the court’s instruction clarified the meaning of “purpose” by correctly telling the jury that “purpose” was synonymous with “plan and/or intent.” CALCRIM No. 521 instructed that “concealment can be accomplished by ambush or some other secret plan” (italics added), and defendant does not challenge the correctness of this instruction.
Defendant also claims the court’s clarifying instruction erroneously told the jury that no “murderous intent” was required for lying-in-wait murder, and thus lessened or eliminated the prosecution’s burden of proving the mental state element of lying-in-wait murder. He specifically argues that the instruction erroneously allowed the jury to convict him of lying-in-wait murder even if the jury believed his “‘true intent and purpose’ at the time of concealment was to merely confront and possibly fight Bridges.” (Italics added.) We disagree with defendant’s interpretation.
The clarifying instruction did not allow the jury to convict defendant of lying-in-wait murder if the jury believed defendant’s “‘true intent and purpose’ at the time of concealment was to merely confront and possibly fight Bridges.” We presume that defendant means “possibly fight Bridges without a knife,” as defendant testified he did not realize the knife was in his hand until he swung it at Bridges. The instructions on murder (CALCRIM No. 520), and on first degree lying-in-wait murder (CALCRIM No. 521), completely foreclosed this possibility by requiring the jury to find that defendant acted with express or implied malice in order to convict him of lying-in-wait murder. (People v. Wade (1995) 39 Cal.App.4th 1487, 1491 [“‘[C]orrectness of jury instructions is to be determined from the entire charge of the court . . . .’”].)
CALCRIM No. 521 instructed the jury that, in order to convict defendant of lying-in-wait murder, it had to find that defendant “murdered while lying in wait or immediately thereafter.” (Italics & underlining added.) CALCRIM No. 520 told the jury that, in order to prove defendant guilty of murder, the People had to prove that defendant acted with malice aforethought; that there were two kinds of malice aforethought: express and implied; that defendant acted with express malice if he “unlawfully intended to kill,” and acted with implied malice if he “intentionally committed an act; [¶] . . . The natural and probable consequences of the act were dangerous to human life; [¶] . . . At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] . . . He deliberately acted with conscious disregard for human life.” CALCRIM No. 520 also told the jury that if it found defendant committed murder, it was murder of the second degree unless the People proved it was murder of the first degree as defined in CALCRIM No. 521. And CALCRIM No. 521 also told the jury that defendant was being prosecuted for first degree murder under two theories: (1) premeditated and deliberate murder and (2) murder by lying in wait. The jury was further instructed to “[p]ay careful attention to all of the instructions and consider them together.” (CALCRIM No. 200.)
We presume the jury followed all of the court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Thus, if the jury believed that defendant’s purpose, intent, or plan “at the time of concealment” was “to merely confront and possibly fight Bridges” without a knife, then the jury could not have convicted defendant of murder at all, because it could not have found he acted with express malice (intent to kill) or implied malice (conscious disregard for life). But if the jury believed defendant’s purpose, intent, or plan was to kill Bridges, or was “merely” to swing a knife at Bridges, then the jury properly convicted defendant of lying-in-wait murder. The evidence showed that defendant concealed a knife in his hand, waited and watched for an opportunity to swing the knife, and then, from a position of advantage, intended to make and made surprise attack on Bridges with the knife. (CALCRIM No. 521.) As defendant acknowledged in testifying in his own defense, swinging a knife at a person’s body is dangerous to human life, and, although he knew this, he swung the knife at defendant “anyway.” This showed defendant acted with implied malice—conscious disregard for life—when he swung the knife at Bridges. The jury also could have reasonably concluded that defendant intended to kill Bridges based on the evidence that he swung the knife directly at Bridges’s heart. The jury could have reasonably rejected defendant’s claim that he swung the knife at Bridges’s side, and Bridges suddenly turned, causing defendant to accidently plunge the knife into Bridges’s heart.
Lastly, defendant argues the court’s clarifying instruction ineffectively addressed the jury’s apparent confusion regarding the mental state required for lying-in-wait murder. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212 [§ 1138 requires trial court “to clear up any instructional confusion expressed by the jury.”].) He claims that, “once the jury expressed its confusion over the mental state required for the lying-in-wait theory, the court should have instructed that lying-in-wait requires [only] ‘a wanton and reckless intent to inflict injury likely to cause death.’” (People v. Nelson (2016) 1 Cal.5th 513, 549.) Here again, we disagree.
To be sure, lying-in-wait murder does not require intent to kill (express malice). (People v. Nelson, supra, 1 Cal.5th at p. 549.) It “‘requires only a wanton and reckless intent to inflict injury likely to cause death’” (ibid), that is, it requires only implied malice (see People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 305). But there was no need to instruct the jury that lying-in-wait murder “requires only a wanton and reckless intent to inflict injury likely to cause death,” after the jury asked whether concealment of “purpose” meant concealment of “intent.” The court correctly instructed the jury pursuant to CALCRIM Nos. 520 and 521 that it could not convict defendant of lying-in-wait murder unless it found he acted with express or implied malice. The court’s clarifying instruction that “purpose means plan and/or intent” did not change the mental state element of lying-in-wait murder; it only clarified “concealment of purpose.”
B. The Court Had No Sua Sponte Duty to Further Define “Provocation” for the Jury
Defendant claims the court had a duty to instruct the jury sua sponte on the meaning of “provocation” in the context of second degree murder. That is, he claims the court had a duty to instruct the jury that the provocation necessary to negate premeditation and deliberation, and thus reduce first degree premeditated murder to second degree murder, is a subjective standard of provocation that differs from the objective standard of provocation necessary to reduce murder to voluntary manslaughter. We conclude the court had no sua sponte duty to further define provocation.
1. Relevant Background
As discussed, the jury was instructed on murder, that murder requires malice, and that if the jury decided defendant committed murder it was second degree murder unless the People proved it was first degree murder—that is, unless the People proved the murder was either premeditated and deliberate, or committed by lying in wait. (CALCRIM Nos. 520, 521.) The jury was instructed that deliberation means a decision to kill after a careful weighing of the considerations for and against this choice; that premeditation means a decision to kill before commission of the act that caused death; and a “decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premediated.” (CALCRIM No. 521.)
The jury was also instructed on voluntary manslaughter based on heat of passion as a lesser included offense to murder. CALCRIM No. 570 told the jury that a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed because of a sudden quarrel or in the heat of passion; that the defendant killed because of a sudden quarrel or in the heat of passion if (1) the defendant was “provoked,” (2) “[a]s a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment,” and (3) “[t]he provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.”
At defendant’s request, the jury was further instructed pursuant to CALCRIM No 522 that “[p]rovocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.”
As defendant points out, the provocation necessary to reduce first degree murder to second degree murder is based on a subjective standard. “To reduce a murder to second degree murder, premeditation and deliberation may be negated by heat of passion arising from provocation. [Citation.] If the provocation would not cause an average person to experience deadly passion but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder.” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).) In contrast, the provocation necessary to reduce any murder to voluntary manslaughter requires more. “For that, an objective test also applies: the provocation must be so great that, in the words of CALCRIM No. 570, it ‘would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.’” (People v. Jones (2014) 223 Cal.App.4th 995, 1000-1001.)
“The trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. [Citation.] This sua sponte duty encompasses instructions on lesser included offenses that are supported by the evidence. [Citation.] Additionally, even if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly. [Citation.] Once the trial court adequately instructs the jury on the law, it has no duty to give clarifying or amplifying instructions absent a request. [Citation.]” (Hernandez, supra, 183 Cal.App.4th at p. 1331.) In general, however, the court has a sua sponte duty to give amplifying or clarifying instructions “‘“where the terms used [in an instruction] have a technical meaning peculiar to the law.”’ [Citations.]” (People v. Richie (1994) 28 Cal.App.4th 1347, 1360, italics added.) Conversely, the trial court does not have a sua sponte duty to amplify or clarify an instruction’s term if the term is “‘“commonly understood by those familiar with the English language.” [Citations.]’” (Ibid.)
Defendant claims the term “provocation” has a technical meaning peculiar to the law of second degree murder because, in the context of second degree murder, the term provocation relates “not to the nature of provocation, but rather to its effect.” He claims “[t]he relevant effect is the impact of the provocation on the defendant’s subjective state of mind. This meaning differs from the ordinary definition of provocation which relates to the cause of the provocation, or to the conduct that is the result of the provoking cause.” We disagree.
Hernandez is instructive. Like the jury was here, the jury in Hernandez was given CALCRIM Nos. 520 and 521 on murder and premediated murder, and was also given CALCRIM No. 522 at the defendant’s request. (Hernandez, supra, 183 Cal.App.4th at pp. 1331-1332.) On appeal, the defendant claimed CALCRIM No. 522 was “incomplete” in part because it failed to specify that “provocation insufficient for manslaughter may be sufficient for second degree murder.” (Id. at p. 1331.) Thus, the defendant claimed the trial court had a sua sponte duty to clarify the meaning of provocation for purposes of second degree murder, and as used in CALCRIM No. 522. (See Hernandez, supra, at pp. 1331-1335.)
In rejecting this claim, the Hernandez court reasoned that, as used in CALCRIM No. 522, the term “provocation” is “not used in a technical sense peculiar to the law.” (Hernandez, supra, 183 Cal.App.4th at p. 1334.) The court also assumed that the jurors were aware of the common meaning of the term. (Ibid.) As the court explained, provocation commonly “means ‘something that provokes, arouses, or stimulates,’” and that “provoke means ‘to arouse to a feeling or action[;] . . . to incite to anger.’ [Citations.]” (Ibid.) The court thus reasoned that, based on CALCRIM Nos. 521 and 522 together, “the jurors would have understood that provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.” (Hernandez, supra, at p. 1334.) Accordingly, the trial court did not have a sua sponte duty to further define, clarify, or amplify the meaning of “provocation” for purposes of CALCRIM NO. 522 or second degree murder. (Hernandez, supra, at p. 1334.)
We agree with the Hernandez court’s analysis, and the same analysis applies here. Based on CALCRIM Nos. 521 and 522, and the commonly understood meaning of provocation, defendant’s jury would have understood that provocation means “‘to incite to anger’” (Hernandez, supra, 183 Cal.App.4th at p. 1334), and would have understood that such provocation may be sufficient to negate premeditation and deliberation and reduce what would otherwise be first degree premediated murder to second degree murder. Thus here, the trial court did not have a sua sponte duty to further instruct on the meaning of provocation for purposes of second degree murder, or that the provocation necessary to reduce murder to manslaughter differs from the provocation necessary to reduce first degree premeditated murder to second degree murder.
Courts have consistently recognized that instructions on provocation in the context of second degree murder are pinpoint instructions. (People v. Rogers (2006) 39 Cal.4th 826, 878; People v. Mayfield (1997) 14 Cal.4th 668, 778; People v. Jones, supra, 223 Cal.App.4th at p. 1001; Hernandez, supra, 183 Cal.App.4th at p. 1331; People v. Lee (1994) 28 Cal.App.4th 1724, 1732-1734.) Pinpoint instructions relate specific facts to a legal issue in the case, or “pinpoint” the crux of a defense. (People v. Rogers, supra, at p. 878.) A pinpoint instruction must be given upon request if substantial evidence supports the theory of the instruction, but the court has no duty to give a pinpoint instruction sua sponte. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)
Defendant acknowledges that Mayfield, Jones, and Hernandez “can be read as undermining” his position, but he argues the courts in these cases did not address the claim he raises here—whether provocation in the context of second degree murder has a technical meaning peculiar to the law. Defendant is mistaken. Hernandez squarely addressed and rejected the claim that provocation for second degree murder has a technical meaning peculiar to the law, and concluded that CALCRIM Nos. 521 and 522 sufficiently inform the jury that provocation, in its commonly understood meaning, can negate premeditation and deliberation and thus reduce first degree premeditated murder to second degree murder. (Hernandez, supra, 183 Cal.App.4th at pp. 1333-1334.)
Lastly, defendant argues that further instructions on the particular legal meaning of provocation in the context of second degree murder were required, given that CALJIC No. 570 defined provocation for voluntary manslaughter and was read immediately before CALCRIM No. 522. Thus, defendant argues it is likely the jury believed that the provocation described in CALCRIM No. 570—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”—was the same provocation necessary to reduce first degree premeditated murder to second degree murder. This argument is unavailing.
CALJIC No. 522 plainly told the jury to “consider the provocation in deciding whether the crime was first or second degree murder,” and to “[a]lso, consider the provocation in deciding whether the defendant committed murder or manslaughter.” Nothing in CALCRIM No 522 indicated that the provocation necessary to reduce murder to manslaughter was the same provocation necessary to reduce first degree murder to second degree murder. And taken together, CALCRIM Nos. 520, 521, and 570 plainly differentiated between the two standards of provocation. The jury was further instructed to “[p]ay careful attention to all of the instructions and consider them together” (CALCRIM No. 200), and we assume the jury followed all of the court’s instructions. (People v. Boyette, supra, 29 Cal.4th at p. 431.) Thus, it is not likely that the jury conflated the provocation necessary for second degree murder with the provocation necessary for voluntary manslaughter. (Hernandez, supra, 183 Cal.App.4th at p. 1332 [in determining whether instructions were incorrect or misleading, appellate court inquires whether there is a reasonable likelihood the jury understood the instructions in the manner the defendant claims].)
C. No Evidence Supported Instructing the Jury on Involuntary Manslaughter
Defendant next claims the trial court prejudicially erred in failing to instruct on involuntary manslaughter as a lesser included offense to murder. We reject this claim because there was no evidence that defendant committed involuntary manslaughter, but not murder or voluntary manslaughter.
The trial court has a sua sponte duty to instruct on all lesser included offenses if substantial evidence shows the defendant committed the lesser but not the greater offense. (People v. Whalen (2013) 56 Cal.4th 1, 68.) We review the failure to instruct on a lesser included offense de novo, considering the evidence in the light most favorable to the defendant. (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)
Murder is the unlawful killing of a human being with malice (§ 187, subd. (a)), and both voluntary and involuntary manslaughter are lesser included offenses to murder (Brothers, supra, 236 Cal.App.4th at p. 30). When a homicide is committed in the heat of passion or in imperfect self-defense, the malice element of murder is “negated” or “mitigated,” and the killing is voluntary manslaughter. (Ibid.) Involuntary manslaughter is a killing without malice, and is statutorily defined as “a killing occurring during the commission of ‘an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, [accomplished] in an unlawful manner, or without due caution and circumspection.’ (§ 192, subd. (b).)” (Id. at p. 31.)
Although section 192 excludes from the definition of involuntary manslaughter a killing committed in the course of a felony, our Supreme Court has broadly interpreted the statute “to encompass an unintentional killing in the course of a noninherently dangerous felony committed without due caution or circumspection. (See People v. Burroughs (1984) 35 Cal.3d 824, 835 . . . .)” (Brothers, supra, 236 Cal.App.4th at p. 31.) In Brothers, the court further expanded the scope of involuntary manslaughter to include a killing committed without malice during the course of aggravated assault amounting to an inherently dangerous assaultive felony, but not constituting felony murder. (Id. at pp. 31-35.) The Brothers court thus held that, “when the evidence presents a material issue as to whether a killing was committed with malice, the court has a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense, even when the killing occurs during the commission of an aggravated assault[,]” that is, during the course of “an inherently dangerous assaultive felony.” (Id. at p. 35; see People v. Bryant (2013) 56 Cal.4th 959, 970 [“A defendant who has killed without malice in the commission of an inherently dangerous assaultive felony must have killed without either an intent to kill or a conscious disregard for life. Such a killing cannot be voluntary manslaughter because voluntary manslaughter requires either an intent to kill or a conscious disregard for life.” (Italics added.)].)
Here, defendant claims substantial evidence shows he acted with gross negligence, but not with malice (intent to kill or conscious disregard for life), when he stabbed Bridges with the knife. Thus, he argues the court had a sua sponte duty to instruct the jury that involuntary manslaughter is committed when a person kills without malice during the commission of an aggravated assault or an inherently dangerous assaultive felony. (Brothers, supra, 236 Cal.App.4th at p. 35.) Alternatively, he claims that even if involuntary manslaughter is limited to killings committing during the course of noninherently dangerous felonies (§ 192), the trial court still had a duty to instruct sua sponte on involuntary manslaughter because, in the abstract, “neither assault with a deadly weapon nor assault with force likely to cause great bodily injury qualify as inherently dangerous felonies.” (Capitalization & bolding omitted.)
Defendant’s arguments are unavailing. Malice is implied when the defendant engaged in an act, the natural consequences of which were dangerous to life, and the defendant acted with the mental state of conscious disregard for human life. (Brothers, supra, 236 Cal.App.4th at p. 34; People v. Chun (2009) 45 Cal.4th 1172, 1181.) Thus, there is no sua sponte duty to instruct on involuntary manslaughter when “the defendant indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed.” (Brothers, supra, at p. 35.)
The evidence in this case indisputably showed that the assaultive act defendant engaged in—swinging a knife at Bridges’s body—was inherently dangerous to human life. This satisfied the objective component of implied malice as a matter of law. (Brothers, supra, 236 Cal.App.4th at p. 35.) The evidence also indisputably showed that defendant acted with the mental state of implied malice (conscious disregard for life) when he swung the knife at Bridges. In testifying in his own defense, defendant admitted he knew that swinging a knife into someone’s body was dangerous to human life, but he did it “anyway.” The evidence showed defendant swung the knife “very fast” into the center of Bridges’s chest, piercing Bridges’s heart with the knife. Even if the jury believed defendant’s testimony that he only meant to stab Bridges in his side or arm, the speed and strength with which defendant executed the stabbing motion indisputably showed he acted with a conscious disregard for human life.
Thus, no evidence showed defendant committed involuntary manslaughter but not murder or voluntary manslaughter, and the trial court did not have a sua sponte duty to instruct on involuntary manslaughter. (People v. Guillen (2014) 227 Cal.App.4th 934, 1027-1028 [involuntary manslaughter instruction unwarranted where no reasonable jury could have found the defendants were merely criminally negligent and did not act with intent to kill or conscious disregard for life when they hit, kicked, and stomped victim to death]; People v. Cook (2006) 39 Cal.4th 566, 596-597 [no sua sponte duty to instruct on involuntary manslaughter where the defendant “savagely beat” victim to death].)
Additionally, any error in failing to instruct the jury on involuntary manslaughter was harmless. In convicting defendant of first degree murder, the jury necessarily found that defendant acted with malice and that the malice was not negated by reasonable provocation. Thus, there is no reasonable probability that the jury would have found defendant acted without malice and convicted him of involuntary manslaughter, had it been given this option. (People v. Rogers, supra, 39 Cal.4th at p. 884.)
D. Defendant’s Claims of Prosecutorial Error During Closing Argument
Defendant claims the prosecutor committed prejudicial misconduct or error during her closing argument by making misleading and erroneous statements concerning premeditation and deliberation, lying in wait, and by appealing to the jury’s sympathies for Bridges and M.G. Defendant has forfeited these claims by failing to object to the prosecutor’s statements in the trial court and failing to ask the court to admonish the jury to disregard the statements, because timely and specific objections and requests for curative admonitions would have cured any prejudice resulting from each of the complained-of statements. (People v. Thornton (2007) 41 Cal.4th 391, 454.) In any event, we find no prejudicial prosecutorial error. We separately address the prosecutor’s statements concerning (1) premeditation and deliberation, (2) lying in wait, and (3) her alleged appeals to the jurors’ sympathy for Bridges.
1. Applicable Legal Principles, Overview
“Under the federal Constitution, a prosecutor’s behavior deprives a defendant of his rights ‘when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’ [Citations.] Conduct that falls short of that standard ‘may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.’ [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 370-371.)
“‘To 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 complained-of comments in an improper or erroneous manner.’ [Citation.] ‘Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.]’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 337.)
A reviewing court will not “lightly infer” that the jury drew the most damaging meaning from the prosecutor’s statements. (People v. Adams (2014) 60 Cal.4th 541, 577.) In addition, we do not view the prosecutor’s remarks in isolation, but rather “in the context of the argument as a whole.” (People v. Cole (2004) 33 Cal.4th 1158, 1203.)
2. The Prosecutor’s Statements Concerning Premeditation and Deliberation
In discussing premeditation and deliberation for the first degree murder charge, the prosecutor argued: “So what is willful, deliberate, and premeditation? We have some definitions. He intended to kill. That he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. And then simply, he decided to kill before. [¶] Now, we talked in voir dire, there’s a lot of us who are big fans of the crime television shows. And I think a lot of us come into a trial with a preconceived notion of what premedication and deliberation looks like. Right? We see the movies where they are—they are waiting outside an apartment for hours on end and they have a pro/con list, to kill or not to kill. I don’t need to prove that to you. Premeditation and deliberation can be something as so simple as you see a fly buzzing around your head. You decide that fly is a pest. You want it out of your face. So you grab that magazine next to you, you roll it up, and you swat that fly. Within a moment of seconds you have made the decision to kill that fly. That is all I need to prove to you beyond a reasonable doubt in this case.
“We make many decisions where we go through a whole host of considerations in our head every day. When we pull up to a stoplight and the stoplight’s about ready to turn yellow, we make many judgment calls in our head. How close is the car behind me? Is he going to run into me if I stop? Is there a pedestrian crossing at the time that I might hit if I blow through the light? Is there a police officer waiting that might give me a ticket if I run the red light? We make all those decisions in the matter of seconds. And that is all that is required for me to prove to you beyond a reasonable doubt in this murder.” (Italics added.)
Defendant claims the statements analogizing premeditation and deliberation to deciding whether to swat a fly and or whether to drive through a yellow light were both erroneous and misleading. He claims the analogies oversimplified and minimized the premeditation and deliberation element of first degree murder, and thus lowered the prosecution’s burden of proving that element beyond a reasonable doubt in the minds of the jurors. We disagree. Based on the prosecutor’s entire argument and the instructions on premeditation and deliberation, there is no reasonable likelihood that the jury construed the “fly swatting” and “driving” analogies in the erroneous manner defendant claims.
To begin with, defendant correctly points out that the act of swatting a fly can be “an essentially reflexive action that can be contrary to the idea of deliberation” because people may swat a fly without thinking about it. Likewise, the act of driving through a yellow light can be a “reflexive action” made “without any deliberative thought.” But that is not how the prosecutor was using the fly swatting and driving analogies. She did not urge the jury to conclude defendant killed Bridges with premeditation and deliberation because defendant killed Bridges reflexively or without thinking about it. Rather, she used the analogies to illustrate that premeditated and deliberate decisions can be made quickly. In discussing the fly swatting analogy, she told the jury: “Within a moment of seconds you have made the decision to kill that fly.” (Italics & underlining added.) And in discussing the driving analogy, she said: “We make all those decisions in [a] matter of seconds.” (Underlining added.)
Additionally, immediately after discussing the fly swatting and driving analogies, the prosecutor correctly explained the law of premeditation and deliberation. She told the jury: “The length of time the . . . person spends is not alone determinative of premeditation and deliberation. It varies from person to person. A decision to kill rashly, impulsively, or without careful consideration is not deliberate and premeditated. But on the other hand, a cold and calculated decision to kill can be reached very quickly. The test is the extent of reflection, not the length of time.” (Italics added.) (See CALCRIM No. 521.) The prosecutor next argued: “I submit to you that our crime scene and a map of what the defendant did . . . that day is a perfect example that shows his plan, his premeditation, his deliberation.” (Italics added.) The prosecutor then discussed what defendant was doing both before and after he stabbed Bridges, and argued his actions showed his killing of Bridges was premeditated and deliberate. In addition, the jury was properly instructed on premeditation and deliberation: “The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death.” (CALCRIM No. 521.) Thus, the entire record shows there is no reasonable likelihood that the jury construed the prosecutor’s fly swatting and driving analogies as permitting it to convict defendant of first degree premeditated murder based on less than proof beyond a reasonable doubt that defendant acted with premeditation and deliberation when he stabbed and killed Bridges.
3. The Prosecutor’s Statements About Lying in Wait
After she discussed first degree murder based on premeditation and deliberation, the prosecutor discussed first degree murder based on lying in wait. She argued: “I submit to you that [the killing is] actually both premeditated and deliberated murder and also committed while lying in wait. . . . [¶] So what’s lying in wait? The defendant concealed his purpose from [Bridges]. He waited and watched for an opportunity to act. And then from a position of advantage, he intended to and did make a surprise attack on [Bridges]. . . . [¶] . . . [¶] The lying in wait does not need to continue for any particular period of time. I don’t need to prove to you that the defendant was waiting behind the front door of a residence for hours until the family comes home to get them. [¶] Lying in wait merely distinguishes those cases from acts that were impulsive versus acts that were deliberate.” (Italics added.)
Defendant claims the italicized statement that, “[l]ying in wait merely distinguishes those cases from acts that were impulsive versus acts that were deliberate” (italics added), had the effect of “improperly eliminat[ing] the element of lying in wait” and “eras[ed] the distinction between premeditated and deliberate first degree murder and lying-in-wait first degree murder.” We disagree. There is no reasonable likelihood that the jury construed the remark in this erroneous manner. The prosecutor correctly explained the elements of lying in wait to the jury, and the jury was properly instructed on lying in wait. (CALCRIM No. 521.)
CALCRIM No. 521 instructed that “[t]he defendant is guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter,” that “lying in wait does not need to continue for any particular period of time, but its duration must be substantial enough to show a state of mind equivalent to deliberation or premeditation. Deliberation means carefully weighing the considerations for and against a choice and, knowing the consequences, deciding to act. An act is done with premeditation if the decision to commit the act is made before the act is done.” Based on the prosecutor’s entire argument and the instructions on lying in wait, the jury must have understood the prosecutor’s italicized statement as merely distinguishing “impulsive” acts from “deliberate” acts committed while or immediately after lying in wait. In addition, the italicized statement in no way conflated premeditated and deliberate murder with lying-in-wait murder, and the jury instructions plainly distinguished both types of first degree murder.
4. The Prosecutor’s Alleged Appeals to Juror Sympathies
Defendant also claims the prosecutor prejudicially erred by appealing to the jury’s sympathy for Bridges. He complains that the prosecutor told the jury: (1) “[Bridges] was living a very different life than you and I. But I think you’ll agree that [Bridges] was really no different from you or I. He was a good friend who helped people when they needed something. He had a family that loved him, and he was making plans for his future with [M.G.] and their unborn child. But the defendant saw to it that [Bridges] didn’t have any future. He put an end to those plans”;
(2) “This is a first-degree murder. It was committed with premeditation and deliberation and while lying in wait. And I’m going to ask you to hold the defendant accountable for robbing [Bridges] of his future, for making that decision that, This is the day you die, and for making [M.G.] spend her last moments with [Bridges] watching him take his very last breath”;
(3) “This is first-degree murder. And I’m going to ask you to hold the defendant accountable for that.” “And I’m going to ask you to hold him accountable for this first-degree murder”;
(4) “He robbed [Bridges] and [M.G.] of any future. And I’m going to ask you to hold the defendant accountable. Hold him guilty of murder, fix it as a first-degree murder”;
(5) “Defense attorney says you can’t take the easy way out. But it’s the defendant who can’t take the easy way out. Let’s not forget that there’s a human being who was robbed of his life. Sometimes we lose sight of that because it’s a sterile courtroom environment”; and
(6) “I’m going to ask you to convict the defendant of first-degree murder. Hold [defendant] accountable for robbing [Bridges] of his life that day, robbing [Bridges] of any future.”
Although a prosecutor is given wide latitude during argument, and the argument may be vigorous as long as it amounts to fair comment on the evidence (People v. Gamache, supra, 48 Cal.4th at p. 371), “‘[a]n appeal for sympathy for the victim is out of place during an objective determination of guilt’” (People v. Kipp (2001) 26 Cal.4th 1100, 1130). It is also misconduct at the guilt phase of a trial to appeal to the jury to view the crime through the eyes of the victim. (People v. Arias (1996) 13 Cal.4th 92, 160.)
Here, we agree with defendant that the prosecutor improperly appealed to the juror’s sympathies for Bridges and M.G. in asking the jury to hold defendant accountable “for making [M.G.] spend her last moments with [Bridges] watching him take his very last breath,” and for “robb[ing] [Bridges] and [M.G.] of any future.” The prosecutor’s references to Bridges being “a good friend who helped people” and who had “a family who loved him” were likewise improper because they had nothing to do with the jury’s objective determination of defendant’s guilt.
Nonetheless, none of these improper remarks were prejudicial when viewed in the context of the prosecutor’s entire argument, the entire record, and the overwhelming evidence of defendant’s guilt. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) The jury was properly instructed on first degree premeditated murder, first degree lying-in-wait murder, second degree murder, and on voluntary manslaughter based on heat of passion. The jury was also instructed not to “let bias, sympathy, prejudice or public opinion” influence its decision, and to follow the law as the court explained it. (CALCRIM No. 200.) The prosecutor’s improper remarks were also brief and isolated when viewed in the context of her entire argument. Based on the entire record, we do not believe there is a reasonable probability that defendant would have realized a more favorable result had the prosecutor’s improper remarks not been made. (People v. Stansbury, supra, at p. 1057.) The improper remarks were not prejudicial under either the federal or state constitutional standards. (People v. Gamache, supra, 48 Cal.4th at pp. 370-371.)
E. Defendant’s Ineffective Assistance Claims Lack Merit
Defendant claims his trial counsel rendered ineffective assistance in failing to (1) object to the prosecutor’s closing arguments, (2) request a clarifying instruction on provocation for purposes of second degree murder, and (3) request instructions on accident and involuntary manslaughter. We find no prejudicial ineffective assistance of counsel in any of these respects.
To prevail on a claim of ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficiencies were prejudicial, that is, but for counsel’s deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Mai (2013) 57 Cal.4th 986, 1009.)
1. Failure to Object to Prosecutor’s Closing Arguments
As we have discussed, the prosecutor did not err in discussing premeditation and deliberation or lying in wait during her closing argument. Thus, defense counsel was not ineffective in failing to object to these portions of the prosecutor’s argument. But as we have also discussed, the prosecutor erred in appealing to the jury’s sympathies for Bridges and M.G. during her closing argument. For the reasons discussed, however, these errors did not prejudice defendant, and for the same reasons defendant cannot show his trial counsel’s failure to object to these portions of the prosecutor’s argument was prejudicial.
Additionally, the record affirmatively shows that defense counsel had a tactical reason for not objecting to the prosecutor’s erroneous appeals to the jury’s sympathies for Bridges and M.G.: an objection would have highlighted and placed additional undue emphasis on the jury’s potential sympathies for Bridges and M.G. (People v. Mai, supra, 57 Cal.4th at p. 1009 [on direct appeal, a conviction will not be reversed based on ineffective assistance of counsel where the record affirmatively shows counsel had a rational tactical purpose for his or her alleged deficient performance].)
2. Failure to Request a Clarifying Instruction on Provocation
Defendant claims “[t]here is no satisfactory explanation” for his counsel’s failure to object to the “incomplete provocation” instruction, CALCRIM No. 522. Defendant also points out that during closing argument his counsel failed to explain that the provocation that reduces murder to manslaughter is not the same provocation that reduces first degree premeditated murder to second degree murder.
None of this demonstrates defense counsel was ineffective in failing to request a clarifying instruction on provocation for second degree murder, or in failing to argue defendant was at most guilty of second degree murder rather than voluntary manslaughter. As discussed, the instructions on provocation were complete. Further, the record affirmatively shows counsel had a rational tactical purpose for not requesting a clarifying instruction on provocation or emphasizing second degree murder to the jury: counsel’s trial strategy was ostensibly to obtain a verdict on voluntary manslaughter. This was a reasonable strategy under prevailing professional norms.
3. Failure to Request Instructions on Accident and Involuntary Manslaughter
Defendant also claims his defense counsel rendered ineffective assistance in failing to request the pattern instruction on accident, CALCRIM No. 3404. As defendant acknowledges, courts do not have a sua sponte duty to instruct on accident. (People v. Anderson (2011) 51 Cal.4th 989, 997-998.) A claim that a crime was committed by accident “‘“amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.”’” (Id. at p. 997.) Thus, accident is not an affirmative defense that can trigger the court’s sua sponte instructional duty. Rather, an accident instruction is a pinpoint instruction that must be given only upon request and only if substantial evidence shows that, when the defendant acted, he or she acted without the mental state necessary to commit the crime. (Id. at pp. 996-998.)
Defendant argues his counsel was ineffective in failing to request CALCRIM No. 3404 on accident, because his police interview statements and trial testimony, in which he claimed the stabbing was an accident, were sufficient to support an accident instruction. To be sure, during his police interview and at trial, defendant claimed he “went to hit [Bridges] in the side” with the knife, but Bridges turned and defendant hit in him the chest instead. In addition, defendant denied concealing the knife in his sleeve and claimed he was unaware the knife was in his hand until after he stabbed Bridges with the knife.
Thus, substantial evidence supported an instruction on accident. But defendant has not shown a reasonable probability the outcome would have been different had an accident instruction been given. As discussed, the jury was instructed on first degree premediated murder, first degree lying-in-wait murder, second degree murder, and voluntary manslaughter based on heat of passion. The jury found defendant guilty of first degree murder, indicating that it necessarily found the murder was either premeditated and deliberate or was committed while or immediately after lying in wait. In either case, the jury necessarily found defendant acted with malice in killing Bridges. Thus, the jury would have necessarily rejected the theory that defendant killed Bridges by accident—that is, without malice. For the same reasons defense counsel’s failure to request an instruction on involuntary manslaughter (a killing without malice) was harmless.
F. There Was No Cumulative Error
Lastly, defendant claims the cumulative effect of the trial errors requires reversal. Under the cumulative error doctrine, a reviewing court is required to assess the cumulative effect of any errors in order to determine whether there is a reasonable probability that their cumulative effect deprived the defendant of a fair trial and due process. (People v. Williams (2009) 170 Cal.App.4th 587, 646.) If so, reversal is required. (Ibid.)
As discussed, the prosecutor’s error in appealing to the jury’s sympathies for Bridges and M.G. during closing argument was harmless under any standard when viewed in the context of the prosecutor’s entire argument, the entire record, and the overwhelming evidence of defendant’s guilt of first degree murder. As also discussed, even if defense counsel should have requested a pinpoint instruction on accident, that error was also harmless under any standard because, in convicting defendant of first degree murder, the jury necessarily found he acted with malice, and thus did not accidentally kill Bridges. Thus, the cumulative effect of these two errors was harmless under any standard.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 All further statutory references are to the Penal Code.
 Early during the morning of March 13, M.G. and Bridges used a small amount of methamphetamine, but M.G. was not feeling the effects of the drug later that day, and she did not believe the drug affected her ability to perceive what happened that night.
 The pathologist who performed the autopsy, Dr. Clark, was no longer employed by Riverside County and had moved to San Francisco.
 Although defense counsel initially requested but later withdrew his request to instruct the jury on involuntary manslaughter pursuant to CALCRIM No. 580, defendant has not forfeited his claim that the trial court had a sua sponte duty to instruct on involuntary manslaughter. (People v. Lopez (2011) 199 Cal.App.4th 1297, 1304, fn. 35 [“There is no forfeiture of an instructional issue where the substantial rights of the defendant have been affected.”]; § 1259.)
 Because defendant does not claim the prosecutor intentionally committed misconduct, his claims are properly characterized as claims of prosecutorial “error” rather than “misconduct.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [“[T]he term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.”].)
 The pattern instruction states: “The defendant is not guilty of _________<insert crime[s]> if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of _________<insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.” (CALCRIM No. 3404.)