>P. v. Villa



















Filed 2/5/13 P. v. Villa CA3











NOT TO BE PUBLISHED









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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

----






>

THE PEOPLE, Plaintiff and Respondent, v. GERARDO VALENCIA VILLA, Defendant and Appellant.

C066853 (Super. Ct. No. 09F02510)

Convicted
of the first degree murder of his son,
defendant Gerardo Valencia Villa appeals.
He contends: (1) a search of his
home violated his Fourth Amendment rights; (2) the trial court erred by
excluding some of the evidence of the victim’s propensity for violence; (3) the
court erred by excluding some photographs of defendant and the victim; (4) the
jurors may have misunderstood the law supporting the defense’s heat-of-passion
theory; (5) the court did not sufficiently instruct the jury on subjective heat
of passion;

(6) the evidence was insufficient to support the first degree murder verdict;
(7) the court improperly instructed the jury on consciousness of guilt; and (8)
the alleged errors were cumulatively prejudicial. Finding no prejudicial error, we affirm.

FACTS

In April
2009, defendant was living with his girlfriend Janet Sartain in the home of
Janet’s elderly mother, Frieda Sartain, in Sacramento. Defendant’s son Alex, the murder victim, also
lived in the home. Defendant is five
feet, ten inches tall and weighs about 240 pounds, according to the probation
report. Alex was six feet, two inches
tall, and weighed 372 pounds.

On April 3, 2009, defendant’s other son,
Gerardo, Jr., married Kassandrea. After
the wedding, which took place in the morning, the family partied and
drank. That evening, the party continued
at defendant’s home. While they were
partying, Alex looked for his two Chihuahuas
in the backyard. When he found them, he
grabbed them by their necks, causing them to yelp. Defendant saw Alex’s treatment of the dogs
and became angry, saying to Alex, “What is wrong with you?” Alex sharply responded, “Wait till you see
what I do to them now.”

Alex took
the dogs to his bedroom and later returned to where the others were. Defendant saw Alex and said, “What’s wrong
with you? You’re just like your mother.” This angered Alex because he was upset about
things his mother had done. Alex moved
toward defendant and challenged, “Hit me, go ahead and hit me.” Defendant grabbed Alex by the throat, but
Janet jumped between them and broke it up before anything further
occurred.

The next
day, April 4, Janet arrived home from work at around 7:00 p.m. She told
defendant that Alex had to move out of the house.

Also that
evening, at between 10:13 p.m. and 10:36 p.m., Alex and Gerardo, Jr.,
corresponded by text messages:

Alex: “Dad just said he would knock me out and kill
me.”

Gerardo,
Jr.: “Yup, on the phone with me. We just talked. He thinks you killed the dogs.”

Alex: “Why would you talk to him?”

Gerardo,
Jr.: “Because I just wanted to know what
he had to say.”

Gerardo,
Jr.: “He called me like 10 minutes ago
and when we were on the phone, he was saying that he was going to knock you out
and all that and when he said that, I told him bye.”

In the
10-minute phone conversation with Gerardo, Jr., defendant said, “I haven’t
heard from those little dogs yet. He is
so crazy, I think he killed those dogs.
If he killed those dogs, I’ll kill him.”


After
defendant spoke to Gerardo, Jr., on the phone, defendant wrote a note to
Alex. He told Alex that he had to move
out. Defendant also gave Alex
instructions on handing over keys and other matters that would attend Alex’s
moving out. Defendant first left the
note in the living room for Alex to find, but then took the note out to the garage.

Defendant
and Janet talked and drank in the garage.
They decided to go to Alex’s room to check on the dogs. Defendant said he needed to protect himself,
and Janet said, “[O]f course you do.”
Defendant armed himself with a knife that was approximately 14 inches
long.

Defendant
knocked firmly on Alex’s bedroom door, and Alex opened the door. Defendant saw that the dogs were in the room
and were unharmed. Defendant and Alex
began to argue. Alex moved toward
defendant, and defendant stabbed Alex in the belly.

Alex said,
“I can’t believe you did that, Dad.” He
then walked out of the house and down the street where he collapsed in the
driveway of another home. He died the
next morning at 1:44.

The
forensic pathologist who conducted the autopsy found that there was one exterior
wound but two different tracks inside the body, indicating that the knife was
partially removed and redirected. One of
the wounds was upward from the belly, through the liver and the diaphragm and
into a lung, a total of about 13 inches.
The other wound was more left to right into the heart sac.

PROCEDURE

The
district attorney charged defendant by information with one count of murder
(Pen. Code, § 187, subd. (a)), with an allegation that defendant personally
used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). A jury found defendant guilty of first degree
murder and found true the personal weapon use enhancement. The trial court sentenced defendant to an
indeterminate term of 25 years to life, plus a one-year determinate term for
the personal weapon use enhancement.

DISCUSSION

I

Search of Residence

Defendant
contends that the search of his residence violated his Fourth Amendment right
to be free of unreasonable searches. The
contested search occurred during the night and was followed by a later search
done pursuant to a warrant, which defendant did not contest. Specifically, defendant claims that the
consent given by Frieda Sartain, the owner of the residence, for the search
during the night was involuntary because she suffers from dementia. The contention is without merit because there
is sufficient evidence to sustain the trial court’s determination that the
consent was voluntary.

A. Facts
from the Suppression Hearing

Frieda
Sartain was 80 years old at the time of the murder, and she owned the residence
where the victim was stabbed.

In the href="http://www.mcmillanlaw.com/">suppression hearing, Deputy Kevin
Darling testified that he escorted Frieda Sartain to a patrol car and put her
in the backseat. As Deputy Darling spoke
to her, he noticed that her speech was slurred and she appeared tired. She told him that she had taken her “evening
medications,” which made her sleepy. She
responded appropriately to the deputy’s questions about her name and birth
date, and she was able to identify the people in the house. She said that defendant and Alex fought and
yelled at each other all the time and that they were yelling at each other that
night. Deputy Darling did not notice any
cognitive limitations except for those identified as being caused by the
medication, although he noted that she had difficulty giving a detailed
statement. He did not remember anyone
telling him that she suffered from dementia, even though Janet may have told
another officer about Frieda’s dementia when the officer first contacted
Janet.

Deputy
Darling filled out a department-issued consent form and explained to Frieda
that the form was to obtain her consent to search the residence. It appeared to Deputy Darling that Frieda
understood what he was saying and that she understood he was asking her to give
consent to search the residence. She
signed the form. On cross-examination,
Deputy Darling clarified that he had her sign the consent form before he took
her statement.

The defense
called Frieda to testify in the suppression hearing. The prosecution objected, stating that she
presently did not have capacity to testify.
But the court overruled the objection.
On the stand, Frieda was able to give her name, but was not able to
answer other basic questions, such as the current date. The court then found that she would not be
able to testify competently about the events around the time of the
murder.

Cheryl
Stockholm, who is Frieda’s daughter and Janet’s sister, testified that Frieda
suffers from dementia, with a gradual decline over the past 10 years. She believed that Frieda’s condition at the
time of the suppression hearing, in October 2010, was “pretty close to the
same” as her condition at the time of the murder, April 2009. In April 2009, Frieda knew she was living in
her own home, but she may not have been able to give the address. At the time, she still recognized people,
including her relatives.

The defense
also introduced a DVD recording of an interview of Frieda in the early morning
hours of April 5, 2009, at the station.
During the interview, Frieda was able to give her name and relate some
details about the fight between defendant and Alex; however, she made some
inconsistent statements.

B. >Legal Principles

When we
review a trial court’s ruling on a motion to suppress evidence under Penal Code
section 1538.5, we examine the factual findings of the trial court under the
familiar substantial evidence test.
“[W]e view the record in the light most favorable to the trial court’s
ruling, deferring to those express and implied findings of fact supported by
substantial evidence. [Citations.]” (People
v. Jenkins (2000) 22 Cal.4th 900, 969.)
If the court’s findings are supported by the record, we independently
apply the relevant legal principles to those facts and determine whether, as a
matter of law, the search or seizure was unreasonable. (People
v. Leyba (1981) 29 Cal.3d 591, 596-597.)

A search
conducted pursuant to valid voluntary consent does not violate the Fourth
Amendment. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222 [36 L.Ed.2d 854,
860]; People v. Garcia (1964) 227
Cal.App.2d 345, 350.) Voluntariness is a
question of fact determined from the totality of the circumstances. (Schneckloth
v. Bustamonte, supra, at p. 227.)
Impairment of the person’s mental faculties should be considered, along
with all other circumstances, in assessing the voluntariness of the
consent. (People v. James (1977) 19 Cal.3d 99, 116, fn. 14.) However, evidence of some impairment, alone,
does not necessarily establish involuntariness.
(People v. Garcia, supra, at
pp. 350-351.) We apply an objective
standard to whether the consent is valid.
(People v. Gurley (1972) 23
Cal.App.3d 536, 555.) In other words, we
determine whether it was reasonable for the officer to conclude, based on the
circumstances, that the consent given was voluntary.

C. Analysis

Here,
Deputy Darling’s determination concerning the voluntariness of Frieda’s consent
to search was objectively reasonable.
Frieda owned the house. She
responded appropriately to questions about her name and who lived at the
residence. Her speech was slow and
slurred, but she was able to respond to questions. Although another officer may have been
notified that Frieda suffered from dementia, that knowledge alone was not
sufficient to establish that the consent was involuntary. The fact that a person may have limited
cognitive abilities does not establish involuntariness, but instead is a factor
in determining voluntariness. (>People v. Garcia, supra, 227 Cal.App.2d
at pp. 350-351.)

While there
was some evidence of Frieda’s confusion caused by dementia, there was also
evidence that she knew who she was and that this residence was hers, and she
was able to respond to basic questions.
Deputy Darling’s personal observation of Frieda was that she understood
that she was giving consent to search the residence. Based on these circumstances, we conclude
that Frieda’s consent to search the residence was voluntary and, therefore, the
search did not violate defendant’s Fourth Amendment rights.

We must
also discuss two stray contentions defendant makes with respect to the consent
issue. In his opening brief, defendant
faults the trial court for not observing the DVD recording of the interview of
Frieda at the station in the early morning hours of April 5, 2009. The court stated that it had reviewed “most”
or “a substantial part” of the interview and “got a good sense of her cognitive
abilities in the course of that interview.”
We perceive no error in the trial court’s course of action. It reviewed the interview, as requested,
before ruling on the suppression motion.

In his
reply brief, defendant contends that we should preclude the People from arguing
that Frieda was competent enough to give her consent to search the residence on
April 4, 2009, because 18 months later, on October 10, 2010, the People argued
to the court that Frieda did not have the capacity to testify in the
suppression hearing. This contention is
both too late (Reichardt v. Hoffman (1997)
52 Cal.App.4th 754, 764 [points raised for first time in reply brief are
forfeited]) and not well taken. There is
no rational reason to judicially preclude different arguments about a person’s
mental capacity at points in time that are 18 months apart.

II

>Character Evidence

Defendant moved in limine to introduce evidence of Alex’s
propensity for violence. The trial court
ruled that most of the evidence could be introduced, but the court excluded
evidence, under Evidence Code section 352, that Alex molested children at his
mother’s in-home daycare and threatened to kill one victim and blow up that
child’s home if the child said anything about the molestation.

On appeal,
defendant contends the exclusion of this evidence concerning child molestation
and threats was an abuse of discretion.
We conclude that the trial court did not abuse its discretion.

A. Procedural
Setting

The motion
to introduce evidence included eight separate instances concerning Alex’s
propensity for violence:

(1) In 2000, a juvenile court petition
alleged that Alex molested children attending his mother’s in-home daycare and
that he threatened to kill one of the victims and blow up the victim’s house if
the victim said anything about the molestation.
The petition was resolved when Alex admitted child annoyance (Pen. Code,
§ 647.6), which is not a crime of violence.


(2) In 2007, Alex grabbed a knife and said
that he was going to kill his mother.
The incident resulted in a restraining order against him.

(3) In 2000, Alex was arrested for conspiracy
to commit battery.

(4) Several years before the murder, Alex
beat up his cousin with a baseball bat.

(5) In February 2009, two months before the
murder, Alex became upset with defendant, pulled a kitchen drawer out, grabbed
a knife, and challenged defendant to fight.


(6) The night before the murder, Alex
mistreated the two dogs and argued with defendant about it.

(7) Around 2006, Alex chased Gerardo, Jr.’s
girlfriend around the house and threatened her after Alex caught Gerardo, Jr.,
and her having sex.

(8) Approximately 10 years before the murder,
when Alex was in high school, he punched and kicked another student at
school.

Defendant
withdrew the motion as to the conspiracy to commit battery. The trial court excluded the child
molestation evidence. And the court
admitted the remainder of the propensity evidence proffered by defendant, which
included six separate incidents.

Concerning
the evidence of child molestation and subsequent threats, the court ruled: “I am going to exclude it. It is not probative. The fact he admitted a juvenile petition for
[Penal Code section] 647.6, a misdemeanor child annoyance, even if it has any
probative value, applying [an Evidence Code section] 352 analysis, the probative
value is substantially outweighed by the risk of prejudice.” The court also noted that the evidence (1)
was cumulative, (2) would result in undue consumption of time, (3) would
confuse the jury, and (4) concerned a remote incident.

B. Legal
Principles

“Evidence
Code section 1101, subdivision (a) provides that ‘evidence of a person’s
character or a trait of his or her character . . . is inadmissible
when offered to prove his or her conduct on a specified occasion.’ Evidence Code section 1103, subdivision
(a)(1) provides an exception to Evidence Code section 1101, subdivision (a)
when a defendant offers evidence regarding the character or trait of a victim
‘to prove conduct of the victim in conformity with the character or trait of
character.’ Of course, the trial court
may exclude otherwise admissible evidence pursuant to Evidence Code section 352
if admitting the evidence would have confused the issues at trial, unduly
consumed time, or been more prejudicial than probative. [Citations.]
. . . [¶] . . . “[W]here . . . a discretionary
power is inherently or by express statute vested in the trial judge, his or her
exercise of that wide discretion must not be disturbed on appeal except on a
showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of
justice.’ [Citation.]” (People
v. Gutierrez (2009) 45 Cal.4th 789, 827-828, italics omitted.)

C. Analysis

Defendant
contends the trial court abused its discretion in excluding the evidence of
child molestation and subsequent threats.
To the contrary, under the circumstances, excluding the evidence was not
abuse of discretion because (1) it was cumulative, (2) it would have consumed
undue trial time, (3) it may have confused the jury, and (4) the prejudicial
effect of the evidence would have outweighed its probative value.

The
evidence of child molestation and subsequent threats was cumulative because the
jury was already apprised of six other violent episodes in Alex’s life. The specific facts of the child molestation
and threats were no more probative of Alex’s propensity for violence, and
defendant’s knowledge of Alex’s propensity for violence, than the other
incidents. In fact, some of the other
events occurred in defendant’s presence, making them more probative of
defendant’s knowledge concerning Alex’s propensity for violence. (See People
v. Shoemaker (1982) 135 Cal.App.3d 442, 449-450 [exclusion of additional
evidence not abuse of discretion when victim’s propensity for violence already
established].)

As the
trial court noted, evidence concerning the molestations and subsequent threats
would have consumed trial time, especially if the prosecution challenged
whether the molestations and threats occurred.
(See People v. Verdugo (2010)
50 Cal.4th 263, 290-291 [court has discretion to preclude lengthy evidentiary
detours].)

A lengthy
detour into whether the victim molested children and threatened them nine years
before his death may also have had the effect of confusing the jury and
distracting them from the elements of the offense charged in the current
case. (See People v. Verdugo, supra, 50 Cal.4th at p. 291 [lengthy evidentiary
detours may confuse the jury].)

Finally,
the prejudicial effect of the evidence of the victim’s molestation of children
and subsequent threats substantially outweighed the probative value of the
evidence. The “ ‘prejudice’ ” referred
to by Evidence Code section 352 does not refer to damage “ ‘that naturally
flows from relevant, highly probative evidence’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958), but instead to
“evidence that poses an intolerable risk to the fairness of the proceedings or
reliability of the outcome.” (>People v. Booker (2011) 51 Cal.4th 141,
188.) Evidence of child molestation is
inflammatory and may have emotionally distracted the jury from its duty to
determine whether the elements of murder were proved in this case.

Because
there was no error, we need not consider defendant’s additional assertion that
prejudicial error in excluding the evidence of child molestation and subsequent
threats violated defendant’s fair trial and due process rights. (See People
v. Hawthorne (2009) 46 Cal.4th 67, 103, overruled on another point in >People v. McKinnon (2011) 52 Cal.4th
610, 637.)

III

Exclusion of Photographs

Defendant
sought to introduce eight photographs of defendant and Alex in various family
settings, including a birthday party and what appear to be other social
situations. Defendant argued that these
photographs went to whether defendant made a premeditated, cold, calculated
decision to kill Alex. He also wanted to
show the size disparity between him and Alex.
The trial court admitted one of the pictures (showing defendant and
Alex, both smiling, standing side-by-side, each with his arm around the other),
but the court excluded the remainder of the pictures, saying that they were
cumulative and risked distracting the jury.
The court also noted that there was testimonial evidence that defendant
loved Alex.

On appeal,
defendant contends that excluding the photographs was an abuse of discretion
under Evidence Code section 352 and violated his state and federal due process
and fair trial rights. We disagree.

Exclusion
of the additional photographs as cumulative was well within the scope of
discretion afforded to a trial court by Evidence Code section 352. There was nothing arbitrary or capricious
about excluding cumulative evidence. (See
People v. Gutierrez, supra, 45
Cal.4th at pp. 827-828 [Evid. Code, § 352 affords trial court wide
discretion].)

Also, as
the trial court noted, exclusion of the additional photographs did not prevent
defendant from arguing that the admitted photograph, along with the testimonial
evidence, established that defendant had a loving relationship with Alex. Therefore, exclusion of the additional
photographs did not violate defendant’s due process and fair trial rights. The trial court was not required to admit any
and all evidence related to the issue of whether defendant and Alex had a
loving relationship. (See >People v. Babbitt (1988) 45 Cal.3d 660,
684 [no constitutional right to present all relevant evidence, no matter how
limited in probative value].)

IV

Provocation and Heat of Passion Arguments

In his
heading for this part of his argument, defendant states: “It is reasonably likely that the jurors
misunderstood the legal principles
governing the defense theory that the killing was voluntary manslaughter,
committed without malice due to reasonable heat of passion, and the
prosecution’s burden of proving the absence of reasonable heat of passion in
order to prove malice, in violation of state law and [defendant’s] rights under
the Fifth, Sixth and Fourteenth Amendments.”
(Unnecessary capitalization and bold text omitted.)

This
heading does not assert trial court error; instead, it asserts what may or may
not be prejudice resulting from error, such as misinstruction or prosecutorial
misconduct. (See Cal. Rules of Court,
rule 8.204(a)(1)(B) [brief must state each point under separate heading
summarizing point].) We point out this
deficiency because it is consistent with the 64-page argument under the heading
-- long on claims of prejudice, but short on identifying error.

Defendant
restates his contention in the first sentence under the heading: “Due to a combination of instructional
ambiguities and omissions, prosecutorial misstatements of law during argument
and defense counsel errors, it is reasonably likely that the jury misunderstood
critical legal principles governing [defendant’s] defense theory that he killed
Alex without malice due to heat of passion and that the jury misunderstood the
prosecution’s burden of proof in that regard, in violation of state law and
[defendant’s] rights to a fair trial, due process of law, to a jury finding
that the element of express malice had been proved beyond a reasonable doubt,
to a meaningful opportunity to present his defense, and to the effective
assistance of counsel, in violation of under [sic] the Fifth, Sixth and Fourteenth Amendments to the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Constitution.”

Again, this
sentence does little to apprise us of error.
Defendant’s burden on appeal is to identify error and establish that the
error was prejudicial. When there is no
error, we need not consider prejudice. (>Vaughn v. Jonas (1948) 31 Cal.2d 586,
601; People v. Coley (1997) 52
Cal.App.4th 964, 972 [appellant bears burden of showing error and resulting
prejudice].) We therefore make an
attempt to discern what errors defendant complains of in this part of his
discussion.

It appears
that defendant argues: (1) prosecutorial
misconduct, (2) misinstruction of the jury, and (3) ineffective assistance of
counsel. He also argues that (4) the
cumulative effect of errors was prejudicial.
All of these arguments relate to defendant’s defense of reasonable heat
of passion, which, if the jury had credited the defense, would have reduced the
murder to voluntary manslaughter. A
common thread in the arguments is that because defendant knew about Alex’s
propensity for violence the provocation needed for a heat-of-passion defense
occurred over a long period of time rather than a short period of time.href="#_ftn1" name="_ftnref1" title="">[1]

A. Prosecutorial
Misconduct

While
defendant faults the prosecutor at various times in this lengthy part of the
opening brief, defendant states that he makes no separate
prosecutorial-misconduct contention.
Instead, he cites the prosecutor’s argument to bolster the
misinstruction and effective-assistance-of-counsel contentions. We therefore do not consider, separately, a
prosecutorial misconduct contention.

B. Misinstruction

Defendant
contends that the trial court erred by not clarifying or amplifying its instructions
on provocation and heat of passion to guide the jury in applying the law to the
facts of this case. The contention is
without merit.

We address
defendant’s argument on appeal that the instructions were erroneous in view of
his contention that his substantial rights were affected by the
instruction. (Pen. Code, § 1259.) In
considering a claim of instructional error, “[t]he test is whether there is a
reasonable likelihood that the jury understood the instruction in a manner that
violated the defendant’s rights.” (>People v. Andrade (2000) 85 Cal.App.4th
579, 585.) A party may not complain on
appeal that an instruction correct in law and responsive to the evidence was
flawed unless the party requested appropriate clarifying or amplifying language. (People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) No such clarifying language was requested
here.

The trial
court based its instructions concerning provocation and heat of passion on the
CALCRIM model instruction, and defendant makes no argument concerning any
deviation from those model instructions.
Those instructions, given consecutively, were as follows:

“[CALCRIM
No.] 522. Provocation: Effect on Degree of Murder

“Provocation
may reduce a murder form [sic] 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.

“[CALCRIM
No.] 570. Voluntary Manslaughter: Heat of Passion (Lesser Offense)

“A killing
that would otherwise be murder is reduced to voluntary manslaughter if the
defendant killed someone because of a sudden quarrel or in the heat of passion.

“The
defendant killed someone because of a sudden quarrel or in the heat of passion
if:

“1. The defendant was provoked;

“2. As a result of the provocation, the
defendant acted rashly and under the influence of intense emotion that obscured
his reasoning or judgment; and

“3. The provocation would have caused a
person of average disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment.

“Heat of
passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that
causes a person to act without due deliberation and reflection.

“In order
for heat of passion to reduce a murder to voluntary manslaughter, the defendant
must have acted under the direct and immediate influence of provocation as I
have defined it. While no specific type
of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short
or long period of time.

“It is not
enough that the defendant simply was provoked.
The defendant is not allowed to set up his own standard of conduct. In deciding whether the provocation was
sufficient, consider whether an ordinary person of average disposition, in the
same situation and knowing the same facts, would have reacted from passion
rather than from judgment.

“If enough
time passed between the provocation and the killing for an ordinary person of average
disposition to ‘cool off’ and regain his clear reasoning and judgment, then the
killing is not reduced to voluntary manslaughter on this basis.

“The People
have the burden of proving beyond a reasonable doubt that the defendant did not
kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you
must find the defendant not guilty of murder.”


We know
from the verdict that the jury rejected defendant’s provocation and
heat-of-passion defense, but, of course, we do not know why. Defendant posits that it may have been that
the jury did not understand the defense fully, even though the model
instructions were given. On appeal, he
restates the trial court defense theory:
“[R]easonable heat of passion negating malice and premeditation was the
primary defense theory and the core of that defense theory was that the
cumulative effect of Alex’s long and consistent history of violent and
provocative conduct culminated in [defendant’s] explosion of reasonable passion
in which he killed Alex.”

1. Provocation
Over a Long Period of Time

Defendant contends that the trial court’s instructions
concerning provocation and heat of passion were inadequate. However, it is difficult to discern from the
briefs what exactly the trial court should have done differently.

Defendant
states that he “does not argue that
the instruction provided was generally correct but should have been amplified,
an argument that might be waived by his counsel’s failure to request further
instruction. His argument is that the
instruction provided was not responsive to the evidence and arguments,
ambiguous, and potentially misleading.”
(Italics added.) From this, it
appears that defendant is conceding that the instruction was generally correct
and not in need of amplification, but then he contradicts himself by saying
that it was not responsive to the evidence.

In any
event, the argument that the instruction was not responsive to the evidence is
without merit. The evidence here
supported an argument, made by defendant in the trial court, that Alex’s
provocation occurred over a long period of time. The instruction given to the jury
stated: “Sufficient provocation may
occur over a short or long period of time.”
That instruction allowed the jury to consider defendant’s argument
concerning provocation.

Not
satisfied with that answer, defendant asserts that the arguments of the
prosecution required the court to give further instruction on the subject. He claims that the prosecutor misled the jury
by saying that Alex’s history of violence was irrelevant. We disagree.
As we read it, the prosecutor’s argument was factual, not legal. In other words, the prosecutor argued that
Alex’s history of violence was factually irrelevant because it did not actually
provoke defendant at the time of the murder.


The
prosecutor argued: “[W]hat bothered me
about [defense counsel’s] whole argument, heat of passion was applied to the
February incident. . . . Look at the
February incident, and it was applied to the dog incident on April 3rd, but it
was never applied to April 4th when the murder happened, and that’s when it’s
important. That’s when it’s important is
what happened that night, and whether or not there was heat of passion that
night that it happened, not 24 hours later.”
The prosecution made other factual arguments concerning provocation and
heat of passion, such as the provocation being too remote and there being
sufficient time for defendant to cool off.


These
prosecution arguments were neither improper, nor did they require the trial
court to modify its instructions.
Therefore, defendant’s contention has no merit.

2. Heat of Passion

Defendant
contends that the heat-of-passion instruction was improper because it did not
inform the jury that the victim’s prior conduct is relevant to whether the
defendant killed in the heat of reasonable passion. We disagree because, on its face, the
heat-of-passion instruction informs the jury that provocation can take place
over a long period of time. No further
instruction was required for defendant to be able to argue to the jury that
Alex’s conduct, over a long period of time, was what provoked defendant and
caused the heat of passion.

3. Intoxication

Defendant
contends that the instruction on intoxication misled the jury because it
prohibited the jury from considering the effect of his intoxication on whether
he harbored express malice. The
contention is without merit.

The trial
court instructed the jury on intoxication using CALCRIM No. 625, as follows:

“You may
consider evidence, if any, of the defendant’s voluntary intoxication only in a
limited way. You may consider that
evidence only in deciding whether the defendant acted with intent to kill, or
the defendant acted with deliberation and premeditation.

“A person
is voluntarily intoxicated if he becomes intoxicated by willingly using any
intoxicating drug, drink, or other substance knowing that it could produce an
intoxicating effect, or willingly assuming the risk of that effect.

“You may
not consider evidence of voluntary intoxication for any other purpose.”

Defendant
argues: “The court’s instruction told
the jurors that they could only consider
[defendant’s] intoxication in determining whether he ‘acted with an intent to
kill, or the defendant acted with deliberation and premeditation,’ >not whether he harbored express malice
aforethought. (Pen. Code, [former] §
22.) Because the instruction expressly
prohibited the jurors from considering the evidence for any other purpose not
mentioned, the instruction prohibited them from considering the evidence in
determining whether [defendant] harbored express malice even if they found that
he formed the intent to kill.” (Original
italics.)

The trial
court’s instruction was consistent with Penal Code former section 22,
subdivision (b), which stated that “[e]vidence of voluntary intoxication is
admissible solely on the issue of whether or not the defendant actually formed
a required specific intent, or, when charged with murder, whether the defendant
premeditated, deliberated, or harbored express malice aforethought.”

Although
the intoxication instruction did not mention “express malice,” it told the jury
that it could consider intoxication when determining whether defendant had the
intent to kill. And “proof of an
unlawful intent to kill is the functional equivalent of express malice. (People
v. Swain (1996) 12 Cal.4th 593, 601.)”
(People v. Chavez (2004) 118
Cal.App.4th 379, 386-387.) Therefore,
the intoxication instruction was proper, even though it did not mention the
words “express malice.”

C. Effective
Assistance of Counsel

Defendant
asserts that his trial counsel was constitutionally deficient in three
ways: (1) failing to request adequate
instruction, (2) failing to object to the prosecutor’s argument, and (3) making
a legally incorrect argument. We
conclude that trial counsel was not constitutionally deficient.

“To succeed
in a claim of ineffective assistance of counsel, defendant must show that
counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms and that, but for counsel’s error, the outcome of
the proceeding, to a reasonable probability, would have been different. (Strickland v. Washington (1984) 466
U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43
Cal.3d 171, 216-218.)” (>People v. Lawley (2002) 27 Cal.4th 102,
133, fn. 9.)

1. Failing to Request Adequate Instruction

Again
relying on his argument that the trial court’s instructions concerning
provocation and heat of passion were not responsive to the evidence and the
prosecutor’s arguments, defendant contends that trial counsel should have
requested clarifying or amplifying instructions. He argues:
“[O]bjective standards of reasonable competence demanded that defense
counsel should have [requested
further instruction] in order to prevent the jury’s misunderstanding of the law
vital to his primary defense and the prosecutor’s burden of proving the absence
of heat of passion in order to prove malice.”
(Original italics.)

This
contention has no merit. The trial court
properly instructed the jury, including its instruction that “[t]he People have
the burden of proving beyond a reasonable doubt that the defendant did not kill
as the result of a sudden quarrel or in the heat of passion.” And the prosecutor’s arguments were proper
factual arguments, not legal arguments contradicting the law as set forth by
the trial court.

2. Failing to Object to the Prosecution’s
Argument

Defendant
also contends that defense counsel should have objected to the prosecutor’s
arguments. We reiterate that the
prosecutor’s arguments were not improper; therefore, an objection would have
been futile.

3. Making Legally Incorrect Argument

Defendant
contends that defense counsel made a “fatal error” when he told the jury, “The
provocation has got to come from the person who is eventually assaulted. That’s the law.” We conclude that, even if this isolated
statement was incorrect, it was not prejudicial because it is not reasonably
probable that the outcome would have been different if defense counsel had not
made the statement.

It is not
necessary for the court to examine the performance prong of the test before
examining whether the defendant suffered prejudice as a result of counsel’s
alleged deficiencies. (Strickland v.
Washington, supra, 466 U.S. at p. 697.)
“If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be
followed.” (Ibid.)

Viewed in
context, counsel’s statement was part of his strategy to convince the jury that
defendant armed himself because of Alex’s violent character and was provoked by
Alex’s actions and words. Counsel said: “I’m telling you folks he was intentionally provoked. And he did it, Alex did it on purpose.” Most of defense counsel’s closing argument
focused on Alex’s violent character and his reputation for violence. In this context, defense counsel said:

“Was
[defendant] acting under heat of passion[?]
They have to prove beyond a reasonable doubt he wasn’t. And can we hear one day that Alex had had a
good day, and was not violent to somebody, and somebody that was not scared of
him[?] So I want to talk to you now
about heat of passion. You can’t make up
heat of passion. I can’t start a fight
so I can kill you. That’s true. [The prosecutor] talked to you about
provocation. The provocation has got to
come from the person who is eventually assaulted. That’s the law. And let’s talk about that. That’s exactly what Alex does. That’s exactly who Alex is. And exactly what he did that night. His brother told him, dad wants to know if
you killed the dogs. . . . So,
it’s not reasonable at all to think that he wasn’t acting under heat of
passion.”

On appeal,
defendant argues: “[D]efense counsel
effectively told the jurors that they could not
consider Janet’s words that ‘pumped’ [defendant] up into the ‘seething’ rage in
which he killed Alex as ‘provocation’ because Janet was not [] ‘the person who [was] eventually assaulted.’
” (Original italics.)

To the
contrary, the prosecution did not argue that the jury could not consider
Janet’s role in the events on the evening of the murder. And defense counsel, as noted, argued that
Alex’s actions -- violent actions -- over time were what provoked
defendant. Also, the jury was instructed
to determine whether defendant “was provoked,” without saying who must be the
source of that provocation. Accordingly,
it is not reasonably probable that, if defense counsel had refrained from
saying anything about the law concerning provocation and who can provoke the
defendant, the jury would have reached a different verdict. And we need not determine whether counsel’s
representation fell below an objective standard of reasonableness. (See Strickland v. Washington, supra,
466 U.S. at p. 697.)

D. Cumulative
Effect

Defendant
also contends that, if the errors with respect to provocation and heat of
passion were not prejudicial by themselves, considered together the errors were
prejudicial. This contention also is
without merit. The trial court did not
err. At most, defense counsel made a
stray, erroneous comment about the law of provocation, but that comment did not
prejudice defendant.

V

>Subjective Heat of Passion

Defendant
contends: “A series of instructional
errors . . . removed from the jury’s consideration evidence critical
to the subjective heat of passion defense which would have negated the
premeditation and deliberation required for first-degree murder, in violation
of state law and [defendant’s] rights under the Fifth, Sixth, and Fourteenth
Amendments.”href="#_ftn2" name="_ftnref2"
title="">[2] We conclude there was no error.

Before
discussing defendant’s contention, we must debunk defendant’s assertion that
the prosecution conceded facts that were inconsistent with premeditation and
deliberation. According to defendant,
“the prosecutor astonishingly conceded that the jury could find that Alex’s
conduct the night before the killing was sufficiently provocative to have
satisfied both the objective and subjective components of heat of passion, that
immediately before the killing Janet had ‘pump[ed]’ [defendant] into a
‘seething rage’ with her expressions of fear and anger over Alex’s violent and
threatening conduct, and that it was in this heat of this ‘seething,’ intense
emotional state that [defendant] ‘snapped,’ formed the intent to kill Alex, and
acted upon it.”

Most of the
words defendant now parses out of the prosecutor’s arguments were the
prosecutor’s recounting of the statements and testimony of defendant and
Janet. But the prosecutor argued that
the killing was premeditated, not that defendant just “snapped” and killed
Alex. The prosecutor then told the jury
that, if it did not find express malice, it could find defendant guilty of
second degree murder. In this context,
the prosecutor said defendant “was seething[;] he was upset.”

In this
light it is apparent that the prosecutor did not concede facts inconsistent
with first degree murder. Indeed, the
prosecutor conceded nothing with respect to the facts supporting a first degree
murder conviction, and it was the jury’s obligation to find the facts and apply
the law to the facts found, as it was instructed.

Defendant’s
main argument, however, does not require that we accept his claim that the
prosecutor conceded facts amounting only to second degree murder. We therefore move to a consideration of the
main argument.

What would
otherwise be deliberate and premeditated first degree murder is reduced to
second degree murder if the jury finds that the defendant “formed the intent to
kill as a direct response to . . . provocation and . . . acted immediately,”
that is, without deliberation or premeditation.
(People v. Wickersham (1982)
32 Cal.3d 307, 329, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) Provocation sufficient to reduce a first
degree murder to second degree murder requires only a finding that the
defendant’s subjective mental state was such that he did not deliberate and
premeditate before deciding to kill. (>People v. Fitzpatrick (1992) 2
Cal.App.4th at 1285,1295-1296; People v.
Padilla (2002) 103 Cal.App.4th 675, 677-678.) Thus, a defendant who is subjectively
prevented from deliberating because of provocation is guilty of second degree rather
than first degree murder, even if a reasonable person would not have been
provoked under the circumstances. (People
v. Fitzpatrick, supra, at pp.
1294-1296.)

The trial
court instructed the jury in this case that provocation may play a role in
reducing an otherwise first degree murder to either second degree murder or
voluntary manslaughter. The court added,
as relevant to defendant’s contention:
“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.” (CALCRIM No. 522.)

The court
also instructed that first degree murder requires premeditation and
deliberation (the only theory asserted by the prosecution in this case) and
that “[a] decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated.” (CALCRIM No. 521.) After instructing on first degree murder, the
court told the jury that “[a]ll other murders are of the second degree.” (CALCRIM No. 521.) Putting these instructions together, the jury
was informed that, if defendant was provoked to the extent that he acted
rashly, impulsively, or without careful consideration, he could not be
convicted of first degree murder.

Defendant
nonetheless argues that the instructions “removed from the jury’s consideration
evidence critical to the subjective heat of passion defense which would have
negated the premeditation and deliberation required for first-degree
murder.” That simply is not true. Although the trial court neither used nor
defined the term “subjective heat of passion,” the effect of the instructions
was to properly inform the jury that, if defendant acted in unreasonable but
actual heat of passion, he was guilty only of second degree murder.

Apparently
ignoring the actual instructions, defendant claims that the trial court did
“not even mention the defendant’s subjective mental state, much less explain
that if the defendant kills in an actual, but unreasonable, heat of passion,
that mental state is inconsistent with or negates premeditation and therefore
the crime is second-degree murder.” To
the contrary, the court instructed the jury that one who acts rashly,
impulsively, or without careful consideration does not act deliberately or with
premeditation. Those are mental
states.

Defendant
also claims that the jury was misled because the instruction on voluntary
manslaughter stated that provocation must lead to both subjective heat of
passion and objectively reasonable heat of passion. In that instruction, the court stated as one
of the elements of a voluntary-manslaughter heat-of-passion defense the
following: “The provocation would have
caused a person of average disposition to act rashly and without due
deliberation, that is, from passion rather than judgment.” (CALCRIM No. 570.) That instruction, however, was clearly
applicable to voluntary manslaughter only; it did not prevent the jury from
properly considering whether the first degree murder should be reduced to
second degree murder because defendant actually but unreasonably acted rashly,
impulsively, or without careful consideration.


When we
review a challenge to jury instructions as being incorrect or incomplete, we
evaluate the instructions given as a whole, not in isolation, to determine
whether there is a reasonable likelihood they confused or misled the jury and
thereby denied the defendant a fair trial.
(People v. Letner >and Tobin (2010) 50 Cal.4th 99, 182; >People v. Richardson (2008) 43 Cal.4th
959, 1028; People v. Huggins (2006)
38 Cal.4th 175, 192.) We also presume
jurors are intelligent and capable of understanding and correlating jury
instructions. (People v. Richardson, supra, 43 Cal.4th at p. 1028; >People v. Carey (2007) 41 Cal.4th 109,
130.)

Applying
these principles here, and considering the challenged instructions in context,
we conclude they did not mislead the jury concerning mental states associated
with second degree murder. Since the
jury was not misled, the instructions did not violate defendant’s due process
and fair trial rights.

VI

>Sufficiency of Evidence

Defendant
contends that his due process rights were violated because the evidence was
insufficient to sustain a first degree murder conviction. The contention is without merit.

Before
considering the sufficiency of the evidence, we must again debunk defendant’s
claim that the prosecutor’s closing argument has anything to do with our
analysis of the sufficiency of the evidence.
Defendant focuses on the prosecutor’s argument, quoting various words
used by the prosecutor, such as “pumped,” “seething,” and “snapped,” to
describe defendant’s mental state. The
prosecutor’s argument, however, was not evidence, as the jury was instructed. (CALCRIM No. 222.)

“ ‘In
reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
“whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” ’
([People v.] >Rowland [(1992)] 4 Cal.4th [238,] 269 .
. . .) We apply an identical standard
under the California Constitution. (>Ibid.)
‘In determining whether a reasonable trier of fact could have found
defendant guilty beyond a reasonable doubt, the appellate court “must view the
evidence in a light most favorable to respondent and presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” ’ (People v. Johnson (1980) 26 Cal.3d 557, 576.)” (People
v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.) In reviewing the sufficiency of the evidence,
“a reviewing court resolves neither credibility issues nor evidentiary
conflicts. [Citation.] Resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact. [Citation.]”
(Id. at p. 1181.) We will reverse for insufficient evidence
only if ‘ “ ‘ “upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].” ’ ” ’
(People v. Manriquez (2005) 37
Cal.4th 547, 577.)

In >People v. Anderson (1968) 70 Cal.2d 15 (>Anderson) the Supreme Court established
“guidelines to aid reviewing courts in analyzing the sufficiency of the
evidence to sustain findings of premeditation and deliberation.” (People
v. Perez (1992) 2 Cal.4th 1117, 1125.)
The guidelines “are not a sine qua non to finding first degree
premeditated murder, nor are they exclusive.”
(Ibid.)

The >Anderson Court identified three
categories of evidence relevant to the determination of premeditation and
deliberation: “(1) facts about how and
what defendant did prior to the actual killing which show that the defendant
was engaged in activity directed toward, and explicable as intended to result
in, the killing -- what may be characterized as ‘planning’ activity; (2) facts
about the defendant’s prior relationship and/or conduct with the victim from
which the jury could reasonably infer a ‘motive’ to kill the victim, which
inference of motive, together with facts of type (1) or (3), would in turn
support an inference that killing was the result of ‘a pre-existing reflection’
and ‘careful thought and weighing of considerations' rather than ‘mere
unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the
nature of the killing from which the jury could infer that the manner of
killing was so particular and exacting that the defendant must have
intentionally killed according to a ‘preconceived design’ to take his victim’s
life in a particular way for a ‘reason’ which the jury can reasonably infer
from facts of type (1) or (2).” (>Anderson, supra, 70 Cal.2d at pp. 26-27,
italics omitted.)

In his
discussion concerning the sufficiency of the evidence to support a first degree
murder conviction, defendant cites only the evidence favorable to him. He refers to evidence that he was
“emotionally distraught”; he was in a rage; he was scared; and Alex was in his
face. He then concludes: “Even viewed in the light most favorable to
the judgment, the evidence presented at [defendant’s] trial does not support a
finding of premeditated and deliberated killing.” He does not mention his threats to kill Alex
or that he grabbed a large knife and went to Alex’s room to confront Alex or
that he stabbed Alex in a manner that penetrated vital organs. This is an argument for a jury, not an
appellate court.

“In making
his argument concerning the sufficiency of the evidence of [premeditation and
deliberation], [defendant] restricts his analysis to the evidence most
favorable to himself. Such an approach
is a nonstarter and, indeed, forfeits consideration of the issue. [Citation.]”
(People v. Battle (2011) 198
Cal.App.4th 50, 62.)

In any
event, the evidence was sufficient to support a first degree murder conviction,
including that defendant premeditated and deliberated. The prosecution introduced evidence of all
three Anderson categories: planning, motive, and preconceived
design. Defendant, who had been angry at
Alex and wanted him out of the home, threatened to kill Alex, grabbed a large
knife, confronted Alex, and stabbed him in a motion that penetrated vital
organs. That defendant may be able to
assert less culpable thought processes to explain these actions does not
diminish the evidentiary value of these circumstances to show premeditation and
deliberation. Therefore, the conviction
did not violate defendant’s due process rights.

Defendant
also contends that California Supreme Court precedent on how little time it can
take to premeditate and deliberate violates federal href="http://www.mcmillanlaw.com/">due process rights. (See People
v. Solomon (2010) 49 Cal.4th 792, 812-813.)
However, he concedes that we are bound by the precedent. (Auto
Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)

VII

>Consciousness of Guilt Instructions

The trial
court instructed the jury that it could infer consciousness of guilt from
defendant’s false and misleading statements, using CALCRIM No. 362. On appeal, defendant contends that this was
an improper pinpoint instruction because it was unfairly partisan and
argumentative. We disagree.

The court
instructed the jury:

“If the
defendant made a false or misleading statement before his trial relating to the
charged crime, knowing the statement was false or intending to mislead, that
conduct may show he was aware of his guilt of the crimes and you may consider
it in determining his guilt.

“If you
conclude that the defendant made the statement, it is up to you to decide its
meaning and importance. However,
evidence that the defendant made such a statement cannot prove guilt by
itself.” (CALCRIM No. 32.)

CALCRIM No.
362 is the successor to CALJIC No. 2.03, which provided that if the jury found
defendant made a willfully false or misleading statement, it could be
considered as “‘a circumstance tending to prove consciousness of guilt.’” (People
v. McGowan (2008) 160 Cal.App.4th 1099, 1103.) “The California Supreme Court has
consistently upheld CALJIC No. 2.03 against various and sundry attacks. [Citations.]”
(Id. at p. 1104, fn. 3; >People v. Benavides (2005) 35 Cal.4th
69, 100; see also People v. Page
(2008) 44 Cal.4th 1, 49-50; People v.
McWhorter (2009) 47 Cal.4th 318, 377.)
“Although there are minor differences between CALJIC No. 2.03 and
CALCRIM No. 362 . . . , none is sufficient to undermine our Supreme Court’s
approval of the language of these instructions.” (People
v. McGowan, supra, 160 Cal.App.4th at p. 1104.)

VIII

>Cumulative Effect

Defendant contends that, if we do not find any of the
asserted errors prejudicial individually, we must reverse because the errors
were cumulatively prejudicial. Since we
have not found multiple errors, we need not consider whether any errors were
cumulatively prejudicial.

DISPOSITION

The
judgment is affirmed.







NICHOLSON , Acting P. J.







We concur:







ROBIE , J.







MAURO , J.