>P. v.
Trinidad

















Filed
5/22/13 P. v. Trinidad CA5





















NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.









IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. JORGE MARTIN TRINIDAD, Defendant and Appellant.

F062786 (Super. Ct. No. F11900271) >OPINION

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Arlan L. Harrell,
Judge.

Joanne
Kirchner, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Kari L. Ricci Mueller, Deputy Attorneys General, for Plaintiff and
Respondent.

-ooOoo-

Fifteen-year-old
defendant Jorge Martin Trinidad was convicted of first degree murder and second
degree robbery after he repeatedly stabbed Marcella Ramos and took her
purse. On appeal, he contends (1) the
trial court erred in refusing to instruct the jury on the right to use force to
recover stolen property, (2) the trial court erred in refusing to instruct the
jury on the claim-of-right defense to robbery, and (3) defense counsel was
ineffective for failing to object to the prosecutor’s closing argument on
provocation and voluntary manslaughter. We will affirm.

PROCEDURAL SUMMARY

On February
17, 2011, the Fresno County District Attorney charged defendant with first
degree murder (Pen. Code, § 187, subd. (a);href="#_ftn1" name="_ftnref1" title="">^[1] count 1) and second degree robbery
(§ 211; count 2). As to count 1,
the information further alleged that defendant personally used a knife during
the commission of the crime (former § 12022, subd. (b)(1)).

A jury
found defendant guilty on both counts and found the special allegation
true. The trial court sentenced
defendant to 25 years to life on count 1, plus a one-year enhancement on the
special allegation. The court stayed
sentence on count 2.

FACTS

On October
14, 2010, sometime around 6:00 a.m., Dolores dropped off her 33‑year-old
cousin, Marcella, near a gas station on the northwest corner of Winery and
Kings Canyon. Marcella was there to
engage in prostitution. She walked north
toward the Big Lots store on the same corner.
About 20 to 25 minutes later, Dolores received a call from Marcella,
telling her to come back and pick her up near the Big Lots store. Dolores heard rustling sounds and thought
Marcella sounded out of breath.

When
Dolores arrived, she saw Marcella on the sidewalk on the west side of Winery,
near the Big Lots store. Dolores
realized Marcella was having difficulty breathing and she saw blood on the left
side of her abdomen. Dolores got help
from passers-by who called the police.

At about
6:30 a.m., Officers Swanson and Scott arrived and found Marcella lying on the
sidewalk next to the Big Lots store on the west side of Winery. She was covered in blood and there was blood
on the sidewalk underneath her. Another
Hispanic female was standing over her yelling.
Officer Swanson saw five to 10 stab wounds on Marcella, and he attempted
to stop the bleeding from her chest wounds.
Marcella was gurgling and gasping for air, unable to say anything to the
officers. An ambulance arrived three to
five minutes later. Marcella had surgery
at the hospital, but she did not survive.

Detective
Cervantes spoke to Dolores at the scene.
She said Marcella was carrying a black fake leather purse and a black
Page Plus cell phone. When officers went
to the hospital, they learned that the purse and phone did not arrive with
Marcella.

Detective
Valles arrived on the scene at 7:45 a.m.
He observed a bloody jacket on the sidewalk where Marcella had
lain. A blood trail led from the jacket
diagonally across the street, ending at a black T-shirt that was in the road
near the curb on the east side of Winery.
The neck of the black T-shirt had been stretched out.

Detective
Serrano determined that Marcella’s cell phone was active. It had sent a Spanish text message after
Marcella had been killed, at about 9:00 a.m., to a specific cell phone owned by
a woman in Madera. Detective Serrano
visited the woman and learned that her 15-year-old daughter, Doris, was the
primary user of the phone. Detective
Serrano went to Doris’s school and spoke to her. Doris said she had received a text message in
Spanish that morning from a male named George or Jorge whom she had recently
met in Fresno. Doris accompanied
Detective Serrano back to Fresno.

Detective
Cervantes spoke to Doris at the station.
He translated the Spanish text message sent from Marcella’s cell phone
at 9:00 a.m. as follows: “Mija [a term
of endearment], what are you doing? This
is George. This will be my phone until
the number is disconnected.”

At this
point, the officers determined they would use Doris to lure defendant out. At 2:08 p.m., while the officers were
discussing the plan with Doris, she happened to receive a call from
defendant. Detective Cervantes was able
to record the call with his digital recorder.
According to the plan, Doris asked defendant where he was and said they
could meet later. Defendant said he was
in the area of Kings Canyon and Dearing, near the major cross streets of Kings
Canyon and Chestnut. Doris told him she
was going to have her oldest sister drive her to the area so they could
meet. Defendant said he would prefer for
her to pick him up on a side street because he had been involved in an altercation
and the police were looking for him.
Then he apologized and said he would have to meet her later; he had to
go to his stepbrother’s because the police were going to get him. He explained that he had gotten into a fight
with some individuals that morning at an apartment complex near Kings Canyon
and Winery, which he called “[T]he Wineries,” and that he had stabbed a
female. He said the police had been
investigating the case since about 6:00 a.m., and he did not want to go out on
the street. He said the police were
going to kill him.

At
4:26 p.m., defendant called again to arrange a meeting with Doris. He said they would meet at a bus stop near
Kings Canyon and Chestnut. Then he said
he would wait in the parking stalls because he was afraid the police would be
there.

At
4:34 p.m., defendant called Doris a third time. By now, Doris was in the backseat of an
undercover vehicle with Detective Cervantes.
Defendant told Doris that he was walking with a friend to Kings Canyon
and Chestnut. She asked him what he was
wearing. She told him she was there, but
she had passed Chestnut and was coming around.
He giggled, then stressed to her that she should hurry because he did
not want to be out on the street for long.
He told her he would to be in front of the Halloween Superstore on the
northwest corner of Kings Canyon and Chestnut.
At this point, Detective Cervantes was observing defendant and his
friend. Detective Cervantes informed
undercover officers in the area. They
exited their vehicles wearing tactical vests and badges, approached defendant,
ordered him to drop the cell phone he was holding in his right hand and lie on
the ground. The cell phone was a black
Page Plus phone. The officers conducted
a pat-down search of defendant and found a folding switchblade knife in a black
nylon sheath and another cell phone, which was later found to be inactive other
than as a musical device. They arrested
defendant.

Detective
Cervantes noticed that a group of people had congregated nearby to watch the
officers arresting defendant. Detective
Cervantes approached and spoke to a 16-year-old boy who said defendant came to
his apartment on Sierra Vista at about 7:00 a.m. that morning. Defendant told him he had been involved in a
fight and had stabbed a person.
Defendant had some lottery tickets with him. Defendant cleaned a bloody knife and changed
into clean clothes. Detective Cervantes
showed the boy the switchblade knife taken from defendant and the boy
identified it as the bloody knife defendant had cleaned that morning.

Detective
Cervantes also spoke to a 16-year-old girl who said she knew defendant. She said he came to her apartment on Dearing
that morning at about 9:00 a.m. She saw
him using a Page Plus cell phone and sending text messages with it. She said defendant told her he had been
involved in a fight at about 6:00 a.m. at The Wineries apartment complex. He said a female was trying to “get at him”
and she took his wallet.

At the
station, Detective Cervantes interviewed defendant’s 17-year-old friend who was
with defendant when he was arrested. The
friend said he saw defendant that afternoon at an apartment on Dearing. Defendant told him he had been involved in a
fight. The friend saw defendant sending
text messages on the black Page Plus cell phone before he was arrested. The friend said defendant was 17 years old.

Another
person, also from an apartment on Dearing, told officers she saw defendant with
two cell phones that day. Defendant told
her he had purchased the phones, but he could not provide the name of the cell
phone service provider.

Detectives
interviewed defendant at the station. He
initially identified himself as 19‑year-old Jesus Aburto. After he was read his Mirandahref="#_ftn2" name="_ftnref2"
title="">^[2]> rights,
he agreed to speak to the officers. He
said he was drinking with some friends at an apartment complex on Winery, just
north of the crime scene. Around 6:00
a.m., he left and was walking south on Winery toward the gas station when he
met Marcella. He asked her for a lighter
and she said she did not have one. She
asked him, “Do you want to do some business?”
Defendant took this to mean sexual intercourse. They agreed he would pay her $20 for
sex. He paid her and they walked into an
alley perpendicular to Winery. Defendant
lay down near the trash can and Marcella faced away from him, but she got up
and left without doing what they had agreed upon. He told the officers they would find a condom
behind a U-shaped cinderblock wall dumpster enclosure at the east end of the
alley.

Defendant
explained that since no sexual act had occurred, he tried to get his $20 back
from Marcella. He took his knife out and
told her, “Give me back my fucking money.”
She would not give him the money, so he grabbed the cell phone she was
talking on and he ran back toward the apartments. As he went into the apartment complex, he
realized he did not have his wallet. He
came back onto the street and saw Marcella.
She ran when she saw him, but he caught her. She grabbed himhref="#_ftn3" name="_ftnref3" title="">^[3] and he did not know what to do, so he grabbed
her purse and took off running.
Defendant did not mention a stabbing.

The
detectives told defendant they knew he was omitting certain things and he
needed to provide more details. He then
explained that after he realized his wallet was gone, he came back to recover
it. He realized it was in Marcella’s
purse. When he caught up to her, they
struggled over the purse as he tried to remove it from her person. They exchanged blows. Marcella pulled his shirt off. She punched him, and he punched her a few
times and pushed her to the ground. He
had his knife out and he told her he wanted his wallet back. She had the purse on her right side and she
would not let go of it, so he got on top of her and stabbed her two to five
times on the left side of her torso.
Defendant demonstrated this for the detectives with a few “very, very
slight,” slow, and “nonchalant” stabbing motions.

After
stabbing her, he took the purse and ran north through an apartment
complex. On his way, an unknown male
looked as though he was going to try to swing at him, so he punched the male in
the face. Defendant jumped a fence and
then went through the purse to remove the contents. He took his wallet and some lottery tickets
from the purse. He left the purse and
the remaining contents in the back of the apartment complex. He still had Marcella’s cell phone. Defendant told the detectives he knew what he
did was wrong, but it was her fault, not his.

Based on
defendant’s information, officers went to the alley behind the strip mall. At the end of the alley, behind a U-shaped
cinderblock wall, they found an unused condom and a condom wrapper in the
location defendant had specified.

Officers
also went to the location defendant said he left Marcella’s purse. They found the purse with the
contents—including makeup, a compact, some condoms, a child’s pacifier, and
identification cards—strewn about.

Defendant
took officers to a backpack hidden under a car at the Sierra Vista apartment complex (where he had changed his
clothes that morning). The backpack
contained used lottery tickets.

Defendant’s
alien registration card with his picture showed him to be 21 years old. Elementary school transcripts, however,
showed him to be only 15 years old.
At this point, Detective Cervantes did not know if defendant was 15, 17,
19, or 21 years old. In a second
interview, Detective Cervantes inquired again.
This time, defendant gave his true name and birth date, and explained
that he had the registration card because he needed to be a certain age to
work. Defendant weighed about 150 pounds
and was the appropriate size for a 15-year-old.

Dr.
Chambliss, a pathologist, conducted the autopsy on Marcella’s body on October
15, 2010. Marcella weighed 156 pounds,
and her system contained some methamphetamine, but no alcohol. The cause of her death was a stab wound to
the chest that penetrated the heart’s left ventricle and caused her to bleed to
death within minutes. Another chest stab
wound was directed downward, penetrating the spleen. She suffered five other wounds to the left
chest area that did not penetrate her body cavity. In addition, she suffered wounds under her
arm, on the back of her right forearm (completely penetrating her arm), on the
front of her right forearm, on her upper left arm, and on her lower left
leg. In total, Marcella suffered 16 stab
and puncture wounds.

According
to Dr. Chambliss, the knife found on defendant could have created the type of
wounds on Marcella’s body.

In addition
to the stab wounds, Dr. Chambliss found a blunt trauma injury, an internal
bruise, on the left side of Marcella’s scalp, just above her forehead. Dr. Chambliss saw no injuries, including
defensive wounds, on Marcella’s hands.

Dr.
Chambliss examined Marcella’s jacket and sweatpants and determined that the
damage to the clothing was consistent with her stab wounds.

On
cross-examination, Dr. Chambliss explained that Marcella would have been able
to engage in activity after being wounded until her blood pressure dropped too
low and/or the blood accumulated around her heart and stopped its
functioning. The methamphetamine in her
system could have made her more excitable and aggressive, and possibly
stronger. It also could have raised her
blood pressure. Dr. Chambliss
agreed that her leg wounds could have occurred while her legs were raised, and
the wound under her arm could have occurred if she lifted her arm to attack.

DISCUSSION

I. Instruction on Right to Recover Stolen
Property

Defendant
contends the trial court erred in failing to instruct sua sponte that a
homicide may be justified when a robbery victim uses reasonable force to
recover stolen property. Defendant
asserts that he was relying on this defense and there was substantial evidence
that he used force against Marcella to retrieve his stolen wallet. He argues that the question of whether the
force he used to recover his wallet was reasonable or excessive was a question
for the jury. He maintains that the failure
to instruct was not harmless because, had the jury been instructed properly, he
likely would have been convicted of a lesser crime than first degree
murder. We conclude any error was
harmless.

Robbery is
“the felonious taking of personal property in the possession of another, from
his person or immediate presence, and against his will, accomplished by means
of force or fear.” (§ 211.) “‘[M]ere theft becomes robbery if the
perpetrator, having gained possession of the property without use of force or
fear, resorts to force or fear while carrying away the loot. [Citations.] In order to support a robbery conviction, the
taking, either the gaining possession or the carrying away, must be
accomplished by force or fear. (See §
211.)’ (People v. Cooper (1991)
53 Cal.3d 1158, 1165, fn. 8; People v. Estes (1983) 147 Cal.App.3d
23, 27-28.)” (People v. Pham (1993) 15 Cal.App.4th 61, 65 (Pham).) Thus, “a robbery is
committed when the defendant has taken possession of the victim’s property and
forcibly prevents the victim from regaining the goods, however
temporarily. [Citations.]” (Id.
at pp. 67-68.)

The victim
of a robbery “has a right to use reasonable force to recover his [property]
and, if actually or apparently reasonably necessary, to kill the robber in so
doing. But when the point of reasonable
force is passed, justification ceases [citation].” (People
v. Young (1963) 214 Cal.App.2d 641, 648 (Young) [where “defendant’s money was snatched from his hand so
quickly that no particular force was required and no fear engendered upon the
instant, but mere demand for return of the money brought forth the opened knife
and the threat to cut defendant’s head off and he was in fear for his life”]; >People v. Randle (2005) 35 Cal.4th 987,
1002-1003 & fn. 6 (Randle)
[citing Young and recognizing right
to pursue and use reasonable force to retrieve stolen property], disapproved on
other grounds in People v. Chun
(2009) 45 Cal.4th 1172, 1201.)

Here,
Marcella took defendant’s wallet without force or fear, or even his
knowledge. But when defendant discovered
the loss and confronted her, demanding return of his wallet, she used force to
physically resist his recovery of his stolen wallet. We believe at this point Marcella’s mere
theft of the wallet became a robbery and defendant was entitled to use >reasonable force to recover his
property. (Pham, supra, 15 Cal.App.4th at pp. 65-67; Young, supra, 214 Cal.App.2d at p. 648; Randle, supra, 35 Cal.4th at pp. 1002-1003 & fn. 6.)

There was
no evidence that defendant used reasonable
rather than excessive force when he stabbed Marcella, who was apparently
unarmed, 16 times, many of them to
the torso, with a switchblade to recover his stolen wallet. (See Randle,
supra, 35 Cal.4th at p. 1003 [the beating went well beyond any force
the victims were entitled to use to recover their property].) Thus, we find the trial court had no sua
sponte duty to give the instruction.
Assuming, without deciding, that the trial court was required to
instruct on this defense theory, we are confident the jury would not have found
defendant’s use of force to be reasonable and therefore conclude any error in
failing to give the instruction was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24.)

II. Instruction on Claim-of-Right Defense

Defendant
also asserts that the trial court should have instructed sua sponte on the
claim-of-right defense to robbery because he had a good faith belief that he
had a right or claim to the property when he took Marcella’s purse. Again, we conclude any error was harmless.

“An
essential element of any theft crime is the specific intent to permanently
deprive the owner of his or her property.
[Citation.]” (>People v. Williams (2009) 176
Cal.App.4th 1521, 1526.) “‘“Although an intent to steal may ordinarily
be inferred when one person takes the property of another, particularly if he
takes it by force, proof of the existence of a state of mind incompatible with
an intent to steal precludes a finding of either theft or robbery. It has long been the rule in this state and
generally throughout the country that a bona fide belief, even though
mistakenly held, that one has a right or claim to the property negates
felonious intent. [Citations.] A belief that the property taken belongs to
the taker [citations], or that he had a right to retake goods sold [citation]
is sufficient to preclude felonious intent.
Felonious intent exists only if the actor intends to take the property
of another without believing in good faith that he has a right or claim to it. [Citation.]”
[Citation.]’ [Citation.]” (People
v. Tufunga (1999) 21 Cal.4th 935, 943.) “‘[A] trial court is not required to instruct
on a claim-of-right defense unless there is evidence to support an inference
that [the defendant] acted with a subjective belief he or she had a lawful
claim on the property.’ [Citations.]” (Id.
at p. 944.)

Assuming
the evidence supported the claim-of-right defense and the trial court therefore
erred in failing to instruct on it, we nevertheless conclude any error was
harmless because it is not conceivable that the jury would have found defendant
not guilty of robbery had the trial court so instructed. The claim-of-right defense would have applied
only to defendant’s taking of Marcella’s purse, but not his taking of her cell
phone, to which he had no possible claim of right. Seeking recovery of money lost in an illegal
prostitution transaction would not support such a claim. (People
v. Tufunga, supra, 21 Cal.4th at pp. 953-954, fn. 5
[claim-of-right defense “is not available where the claim of right to the
property is founded in a ‘notoriously illegal’ transaction”], citing People
v. Hendricks (1988) 44 Cal.3d 635, 642 [fee collection for prostitution
services]; People v. Gates (1987) 43 Cal.3d 1168, 1182 [distribution of proceeds from
forgery ring], disapproved on another ground in People v. Williams
(2010) 49 Cal.4th 405, 458-459; People v. Johnson (1991) 233 Cal.App.3d
425, 456-458 [payment for a drug deal].)
The evidence was overwhelming that defendant robbed Marcella of her cell
phone. He admitted that he forcibly took
it from her hand while she was talking on it and then he ran away with it. The prosecutor told the jurors they could
find robbery in defendant’s taking of Marcella’s cell phone, purse, or lottery
tickets. The court instructed the jurors
they had to agree on which act constituted the robbery. (CALCRIM No. 3500.) If the jurors had been instructed on the
claim-of-right defense, and had found it a valid defense to defendant’s taking
of the purse, they undoubtedly would still have found defendant guilty of robbing
Marcella of her cell phone. Any error in
failing to instruct on this defense was harmless beyond a reasonable
doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)

III. Ineffective Assistance of Counsel

Lastly,
defendant argues that defense counsel was ineffective for failing to object to
the prosecutor’s misstatements of the law regarding voluntary
manslaughter. For the third time, we
conclude any error was harmless.

To
establish ineffective assistance of counsel, a defendant must show (1) counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms and (2) counsel’s deficient performance was
prejudicial. (Strickland v.
Washington (1984) 466 U.S.
668, 687-688 (Strickland); People
v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish
prejudice, defendant must make a showing “sufficient to undermine confidence in
the outcome” that but for counsel’s deficient performance there was a
“reasonable probability” that “the result of the proceeding would have been
different.” (Strickland, supra,
at p. 694; Ledesma, supra, at pp. 217-218.) On review, we can adjudicate an ineffective
assistance claim solely on the issue of prejudice without determining the
reasonableness of counsel’s performance.
(Strickland, supra, at p. 697; Ledesma, supra, at
pp. 216-217; People v. >Hester (2000) 22 Cal.4th 290,
296-297.) We will do so here.

“Where an intentional and unlawful
killing occurs ‘upon a sudden quarrel or heat of passion’ (§ 192,
subd. (a)), the malice aforethought required for murder is negated, and
the offense is reduced to voluntary manslaughter—a lesser included offense of
murder. [Citation.]” (People
v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi).) “‘The heat of passion requirement for
manslaughter has both an objective and a subjective component. [Citation.]’”
(People v. Gutierrez (2002) 28
Cal.4th 1083, 1143.) “Such heat of
passion exists only where ‘the killer’s reason was actually obscured as the
result of a strong passion aroused by a “provocation” sufficient to cause an
“‘ordinary [person] of average disposition … to act rashly or without due
deliberation and reflection, and from this passion rather than from
judgment.’”’ [Citation.] To satisfy this test, the victim must taunt
the defendant or otherwise initiate the provocation. ([Citation]; e.g., People v. Berry
(1976) 18 Cal.3d 509, 512–515 [young wife repeatedly subjected older husband to
sexual insults, rejection, and admissions of infidelity, causing him to
strangle her in jealous rage]; cf., People v. Manriquez (2005) 37
Cal.4th 547, 585-586 [provocation lacking where defendant calmly shot bar
patron who insulted and goaded him into firing]; see also People v.
Gutierrez[, supra,] 28 Cal.4th
[at p.] 1144 [revenge does not reduce murder to manslaughter].)” (Carasi,
supra, at p. 1306.)name="______#HN;F37">

“In a
related vein, the ‘“existence of provocation which is not ‘adequate’ to reduce
the class of the offense [from murder to manslaughter] may nevertheless raise a
reasonable doubt that the defendant formed the intent to kill upon, and carried
it out after, deliberation and premeditation”’—an inquiry relevant to
determining whether the offense is premeditated murder in the first degree, or
unpremeditated murder in the second degree.
[Citations.] First degree
willful, deliberate, and premeditated murder involves a cold, calculated
judgment, including one arrived at quickly [citation], and is evidenced by
planning activity, a motive to kill, or an exacting manner of death. [Citation.]
Such state of mind ‘is manifestly inconsistent with having acted under
the heat of passion—even if that state of mind was achieved after a
considerable period of provocatory conduct.’
[Citation.]” (>Carasi, supra, 44 Cal.4th at
p. 1306.)

Defendant
correctly argues that the prosecutor, in his argument on voluntary manslaughter
and sufficient provocation, interspersed incorrect statements of law with
correct statements of law. In essence,
the incorrect statements encouraged the jurors to consider whether the circumstances
would cause an ordinary person to do what defendant did: stab Marcella 16 times. The correct standard is whether the
circumstances would cause an ordinary person of average disposition to act
rashly or without due deliberation and reflection, and from this passion rather
than from judgment. (Carasi, supra,
44 Cal.4th at p. 1306; People v.
Najera (2006) 138 Cal.App.4th 212, 223-226.)

We also
agree with defendant that there was evidence of provocation—Marcella’s stealing
his wallet, refusing to return it, and physically hitting and struggling with
him to prevent him from recovering it.
But even if we assume that the evidence satisfied the objective element
(which was the element misstated by the prosecutor)—that these circumstances
constituted provocation sufficient to cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection, and from
passion rather than from judgment—we nevertheless cannot agree that the record
contains evidence that satisfied the subjective
element—that defendant’s “‘reason was
actually obscured as the result of a
strong passion aroused by [the] “provocation .…”’” (Carasi, supra, 44 Cal.4th at
p. 1306, italics added.) Defendant
explained to the detectives that he and Marcella struggled and punched each
other. He pushed her to the ground and
demanded his wallet back as he brandished his knife. She still refused to let go of the purse, so
he got on top of her and stabbed her two to five times in the torso. The evidence does not include any statement
by defendant that he experienced a strong emotion or passion, such as rage or
anger. In fact, his demonstration of the
stabbing was remarkably devoid of passion, showing a few very slight and slow
stabbing motions, which the detective described as “nonchalant.” Furthermore, the people with whom defendant
had contact shortly after the stabbing did not report any statements by
defendant regarding his emotions during the stabbing. And defendant did not testify at trial. Under these circumstances, we simply do not
find any record evidence to support the subjective element of the heat of
passion required to reduce first degree murder to either second degree murder
or voluntary manslaughter. The fact that
the jury did not find defendant guilty of second degree murder rather than
first degree murder, which would have required a finding that defendant made
his “decision to kill … rashly, impulsively, or without careful consideration”
rather than with deliberation and premeditation (as the jury was instructed by
CALCRIM No. 521), further supports our conclusion that the evidence of a
subjective element was not there.

Accordingly,
we must conclude there is no reasonable probability that the result of the
proceeding would have been different had defense counsel objected to the
prosecutor’s misstatements. Having found
no prejudice, we reject defendant’s contention.
(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma,
supra, 43 Cal.3d at pp. 217-218.)

DISPOSITION

The
judgment is affirmed.





_____________________

Kane, J.

WE CONCUR:





_____________________

Wiseman, Acting P.J.





_____________________

Gomes, J.