Filed 9/14/17 P. v. Jackson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted defendant Godfrey Jamal Jackson of the second degree murder of MiAndrew Rachal and related charges and enhancements. The trial court sentenced him to 60 years to life in prison. On appeal, Jackson contends the court erred by (1) failing to grant a mistrial or admonish the jury after the prosecutor allegedly committed misconduct during closing argument, (2) giving erroneous jury instructions on the homicide charges at issue, (3) admitting into evidence a statement obtained in violation of Jackson’s Miranda rights,[1] and (4) declining to continue the sentencing hearing to permit further defense investigation. We affirm.

I. BACKGROUND

A. Evidence at Trial

Beginning at about 10:30 p.m. on September 5, 2012, Rachal and several friends and acquaintances, including Terrance Stewart and Michael Carraway, were socializing in front of a vacant house on West MacArthur Boulevard in Oakland. Some of them were or had been drinking. In addition to a core group of five or six people, which included Rachal, Stewart, Carraway, and their friends Twan, Sharnice, and Scruff, others came and went during the evening. At some point during the evening, Jackson arrived and asked Rachal for some wine. Stewart had not met Jackson before that evening.

Stewart testified that at about 2:00 or 2:30 a.m. (on September 6, 2012), some of the people in his group began leaving. Carraway went to his nearby house. Jackson and Rachal began to argue; they were “rambling.” They were “[s]quared off,” about three feet apart. At one point, Stewart got between them, but they broke away and continued to try to get at each other. Stewart started walking toward Carraway’s house to get boxing gloves so Jackson and Rachal would not hurt each other. Jackson and Rachal had removed their jackets. Stewart assumed there was going to be a fight but did not think the fight was that serious.

Stewart testified that, before he reached Carraway’s house, a white car (which had stopped nearby for a while earlier in the evening) drove up again and stopped a few feet from a parked black Volkswagen Jetta. Stewart had seen Jackson seated in the black Jetta earlier in the evening. When the white car arrived the second time, Rachal was standing next to the Jetta. Jackson ran to the front passenger side of the white car. The car door opened, and Jackson reached into the car. He came out holding a gun. Stewart saw the gun in Jackson’s hand; Stewart had not seen a gun before Jackson reached into the car. Jackson then fired multiple shots at Rachal. At first, Jackson was about one car-length from Rachal, and he moved closer as he began shooting. Stewart testified Jackson fired a total of six or seven shots. After an initial series of shots, Rachal was on the ground, and there was a break in the shooting. Jackson fired a second series of shots at Rachal. Jackson then jumped into the white car, which drove away.

Stewart ran to Rachal, who did not say any words. Stewart asked a female neighbor to call an ambulance. Carraway and Scruff returned to the scene after the shooting. When police arrived, Stewart told them only Rachal’s name. A few weeks later, Stewart went to the police station and told Officer Eric Milina what happened. Stewart picked Jackson’s photograph out of a photographic lineup and identified him as the person who shot and killed Rachal. At trial, Stewart testified he had no doubt Jackson was the shooter. Stewart took an abandoned cell phone from the scene, believing it belonged to Rachal. He later delivered the cell phone to Officer Milina. Stewart testified he had served two prison terms and had sustained misdemeanor convictions.

Other witnesses corroborated Stewart’s testimony that Jackson was present at the scene of the shooting that evening, although they did not testify to having seen the shooting. Amitra Britton testified she dated Delshon Dixon, who is Jackson’s cousin. Britton knew Jackson as “Mal.” Britton also knew Rachal, and she knew he was killed in front of Dixon’s residence. Britton stopped by Dixon’s house around 7:00 or 8:00 p.m., and saw Rachal, Dixon, Jackson, Carraway, and Brittney (Jackson’s girlfriend) in the area. Britton left before midnight. Britton denied telling Brittney that Britton saw Jackson shoot Rachal.

Michael Carraway had known Rachal for about 15 years. On September 6, 2012, Carraway was with Stewart, Rachal, Scruff, Twan and Sharnice in front of a vacant house on West MacArthur Boulevard near Carraway’s house. Carraway drank beer and vodka. At some point, Jackson arrived. Carraway later saw a white car pull up, and Rachal recognized people inside the white car. A woman got out of the white car and gave Rachal a hug. Carraway believed two men were inside the white car. The group drank alcohol, socialized, and rapped. Carraway saw Jackson talk to the people who arrived in the white car.

Around 2:00 a.m., Carraway left to use the bathroom at his nearby house. Carraway believed people were getting along. When Carraway left, the group included Jackson, Rachal, Stewart and Scruff. When Carraway was heading back outside to rejoin the group, he heard gunshots. He went back up the street toward where the group had been gathered. Stewart was distraught and told Carraway that Rachal had been killed. Carraway saw Rachal on the ground. Carraway called 911. Carraway did not see anyone possess guns or threaten Jackson that evening.

After Carraway and Stewart returned to Carraway’s house, Stewart was still upset and crying. Stewart told Carraway that Jackson had shot Rachal. Stewart said Jackson and Rachal had argued, and Stewart had tried to break them up. Stewart said a white car pulled up; Jackson went to the car, retrieved a gun, and shot Rachal; and then Jackson jumped into the white car, which sped off.

Brittney Garrett testified that she has known Jackson for five years and had dated him. On December 2, 2013 (one week before trial testimony began on December 9, 2013), Garrett received a telephone call from Jackson’s sister, a three-way call in which Jackson also was on the line. Garrett later told an inspector that Jackson and his sister asked Garrett not to come to court.

Garrett had previously seen Rachal around Delshon Dixon’s residence. In June 2012, Rachal and Jackson had a disagreement over a rap battle. On that occasion, Garrett called Jackson’s mother to intervene to remove Jackson from the scene.

Garrett was in the driveway when the charged shooting occurred. When the white car arrived, Jackson’s brother and the brother’s girlfriend were in the car. After the white car pulled up, Garrett heard gunshots. Garrett did not see Jackson get a gun from the car and did not see him shoot Rachal. When Jackson left in the white car, Garrett chased the car to try to get it to stop, and yelled “ ‘wait.’ ” Jackson’s brother’s girlfriend drove the white car. Garrett initially told investigators that she had not been present at the time of the shooting.

At the scene, police found five .40-caliber bullet casings, a black jacket, a burgundy jacket, a shirt, and (in the pocket of the black jacket) a key to a black Jetta parked nearby. The black jacket was tested for DNA, and the major donor’s DNA profile was consistent with Jackson’s DNA profile. The criminalist who examined the bullet casings opined they were fired by the same gun.

The forensic pathologist who conducted the autopsy on Rachal’s body opined the cause of death was multiple gunshot wounds. There were six entrance wounds. The bullet wounds caused perforations to the cranial vault, the soft tissues of the head and torso, the ribs, the left and right chest cavities, both lungs, the vertebral column, the large intestine, abdominal blood vessels, soft tissue in the left arm, and a bone in the left arm.

There was a bullet hole in the front driver’s side quarter panel of the Jetta. A police evidence technician who processed the Jetta found a .45-caliber bullet on the ground after the Jetta was pulled out of the police lot. The Jetta was owned by Authereen Woodard, the mother of Jackson and of Reginald Jones.

Officer Eric Milina, the homicide investigator assigned to the case, testified that Carraway called him on September 10, 2012 and came to the station the next day. Carraway identified “Mal” as a possible suspect. Carraway identified Jackson in a photographic line-up as “Mal.” Carraway said Terrance Stewart had potential evidence about the shooting.

On September 26, 2012, Milina spoke with Stewart. Stewart delivered a Samsung cell phone recovered from the scene. Stewart identified Jackson as the shooter. The cell phone showed that a call was made on September 6, 2012, at 2:37 a.m.

On December 13, 2012, the police arrested Jackson. Jackson stated he was present at the scene but did not shoot Rachal. Jackson said a four-door gray car pulled up, and a person wearing a hood got out of the car and shot Rachal. Jackson stated he ran to his sister’s house and left behind his jacket, cell phone, and car keys. Jackson said he met Rachal for the first time that night, had no problems with him, and did not fight with him. Jackson said Brittney Garrett was not present that night. Jackson said he did not know Amitra Britton.

By stipulation, the jury was informed of prior statements by Stewart and Carraway. The parties stipulated that Officer Douglas Walker spoke to Stewart at 2:50 a.m. on September 6, 2012. Stewart told the officer that he heard three or four gunshots and saw an African-American male jump into a white four-door car, which sped away. Stewart said he did not know the victim. Stewart also said he was too far away to get a good look at the shooter. Stewart refused to provide a formal written statement.

The parties stipulated that, at a hearing on November 21, 2013, Carraway testified on cross-examination that he did not remember when Stewart provided him with details about the shooting, and that Stewart might have provided those details on a date after the date of the shooting. In contrast, when Carraway spoke to Officer Milina on September 11, 2012, and when he testified at the preliminary hearing in August 2013, Carraway stated that Stewart provided him with details about the shooting on the night of the shooting.

B. The Charges, Verdict and Sentence

An information charged Jackson with murder (Pen. Code,[2] § 187, subd. (a)) (count one) and two counts of possession of a firearm by a felon, i.e., possession at the time of the offense and at the time of his arrest three months later (§ 29800, subd. (a)(1)) (counts two and three). As to count one, the information alleged Jackson personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d); see also §§ 12022.5, subd. (a), 12022.53, subds. (b), (c)). The information alleged Jackson had sustained two prior felony convictions, including one that was both a serious felony conviction (§ 667, subd. (a)(1)) and a strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). Jackson later entered a plea of guilty to count three and admitted the prior conviction allegations; counts one and two remained for jury trial.

As to count one, the jury acquitted Jackson of first degree murder, but convicted him of second degree murder and found true the enhancement allegations; the jury also convicted Jackson on count two. The court sentenced Jackson to 60 years to life in prison. Jackson appealed.

II. DISCUSSION

A. Alleged Prosecutorial Misconduct

1. Additional Background

During his closing argument, defense counsel noted that Brittney Garrett (who was Jackson’s girlfriend at the time of the shooting) had testified Jackson’s brother, Reginald Jones, got out of the white car, while Stewart had testified no one got out of the car. Counsel argued generally that this discrepancy was relevant to Stewart’s credibility and raised doubt as to whether he accurately perceived everything that happened. Counsel also suggested specifically that Jones could have been the shooter. Counsel noted Garrett had testified Jackson was in the car as it drove away, while Jackson told Officer Milina he ran from the scene and did not get in a car. Counsel suggested Jackson might have been untruthful with Officer Milina because he was trying to protect his brother.

In his rebuttal, the prosecutor responded by stating: “You know, if the brother—exonerating an individual in this particular case, there is this thing in the law called the failure to call a logical witness. Well, wouldn’t it be logical that if the brother was somehow going to exonerate you, that you would call him?” The prosecutor continued: “I get you are not required to put on any evidence. I get that. But everybody knew what I was going to say to you from day-one, and, surely, if that man could prove your innocence to come in here and say, ‘Uh-uh (indicating no), it was somebody else,’ the logical thing to do would be to call that individual. It’s your brother. You know where he’s at.” Defense counsel objected, stating, “Improper argument.” The court sustained the objection. The prosecutor then concluded his argument, including urging the jury to consider all the evidence in making its decision.

Once the prosecutor finished his rebuttal, the court excused the jurors for the evening, stating it would instruct them on the law the next morning. After the jury departed, defense counsel asked the court to admonish the jury to disregard the above statement by the prosecutor. Counsel also moved for a mistrial, asserting the prosecutor had made an improper argument and had sought to shift the burden of proof to the defense. In response, the prosecutor contended that his argument was not improper, and that it was permissible for him to comment on the defense’s failure to call a logical witness (as long as he did not comment on Jackson’s decision not to testify). The court stated that, in an “abundance of caution,” it had sustained the objection to ensure the prosecutor did not pursue the issue further. The court declined to admonish the jury or declare a mistrial. The court stated the defense request for an admonition was untimely; giving an admonition would risk calling further attention to the issue; and the prosecutor’s remarks “did not . . . rise to [the] level” of justifying a mistrial.

The following morning, defense counsel submitted a written instruction stating that the prosecutor had made an improper statement during closing argument, and that the prosecution bore the burden of proof. The prosecutor again contended his argument was not improper, noting he had emphasized he bore the burden of proof; he asked the court to reverse its ruling sustaining the defense objection. The court declined to give the special instruction and denied defense counsel’s renewed motion for a mistrial, but also declined to reverse its ruling sustaining the defense objection. The court stated that it had been concerned the prosecutor’s statements could have risen to the level of “burden shifting,” but that the prosecutor “immediately closed that gap, provided further argument, and it did not give rise to any error or anything that would suggest a mistrial or the need for an admonition.”

2. Analysis

Jackson contends the prosecutor’s statements constituted misconduct and improperly shifted the burden of proof to the defense. He argues the court committed reversible error by declining to admonish the jury or declare a mistrial. We reject these contentions.

“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ [Citation.] ‘In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ [Citation.] When a claim of misconduct is based on the prosecutor’s comments before the jury, ‘ “the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ ” (People v. Friend (2009) 47 Cal.4th 1, 29.)

Our Supreme Court has held that, in closing argument, a prosecutor may comment on the state of the evidence or on the defense’s failure to call logical witnesses. (People v. Gonzales (2012) 54 Cal.4th 1234, 1275 (Gonzales); People v. Castaneda (2011) 51 Cal.4th 1292, 1333 [“ ‘Although a prosecutor is forbidden to comment “ ‘either directly or indirectly, on the defendant’s failure to testify in his defense,’ ” the prosecutor may comment “ ‘on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.’ ” ’ ”].) It is improper, however, for a prosecutor to state that a defendant has “a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340; accord, People v. Woods (2006) 146 Cal.App.4th 106, 112 (Woods).)

The prosecutor’s statements here were not improper, and thus the court did not err by failing to admonish the jury or declare a mistrial. As noted, defense counsel suggested Jackson’s brother’s alleged presence at the scene called into question Stewart’s credibility and his testimony that Jackson shot Rachal. It was permissible for the prosecutor to respond by arguing it would have been logical for Jackson to call his brother as a witness if the brother had been at the scene and thus might be aware of information that would contradict Stewart’s testimony or exculpate Jackson. (Gonzales, supra, 54 Cal.4th at p. 1275 [permissible to comment on failure to call logical witness]; see People v. Frye (1998) 18 Cal.4th 894, 978 [prosecutor’s statements constituted a fair response to defense counsel’s arguments suggesting a prosecution witness might have been the perpetrator, and challenging the credibility of a different prosecution witness], disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Although the prosecutor referred to the brother’s potentially exculpatory testimony as testimony that could “prove [Jackson’s] innocence” (such as by supporting a theory that someone else shot Rachal), the prosecutor also emphasized Jackson did not have the burden to present any evidence. This distinguishes the present case from Woods, cited by Jackson. (See Woods, supra, 146 Cal.App.4th at pp. 112, 113, 116 [prosecutor committed misconduct by arguing that the defendant was “ ‘obligated’ to put on evidence” and employing “factually unsupported argument” and “argument [that] was largely nonsensical”].) In context, it is not reasonably likely the jury understood the prosecutor’s remarks here as an improper statement that Jackson had the burden to present evidence or prove his innocence (particularly since the court stated in its instructions that the prosecution had the burden of proof beyond a reasonable doubt).

Jackson relies heavily on People v. Smith (1898) 121 Cal. 355 (Smith), but that case is inapposite. In Smith, an appeal from a manslaughter conviction, four people other than the decedent (including the defendant and his brother) were present when the decedent was killed. (Id. at pp. 357, 359.) Two of them testified the defendant shot the victim, but their testimony was impeached. (Id. at p. 360.) The defendant testified that he was some distance away and not facing the decedent when he heard shots, and that his brother told him the decedent had shot himself. (Ibid.) The defendant’s brother was initially charged with the defendant but, by the time of trial, he had been ordered discharged, although it was not clear whether he had been released from custody. (Id. at pp. 359–360.) In explaining the background of the case, the Supreme Court stated, “There is nothing in the record to show that [the brother] was present at the trial or in the county, or even within reach of the process of the court at that time; and he was not called as a witness.” (Id. at p. 360.) In closing argument, the prosecutor in Smith asserted the defendant’s brother “ ‘was subpoenaed as a witness on the part of the defense, and not put on the stand.’ ” (Id. at p. 361.) The prosecutor also argued that, because the defendant had not called his brother to testify, “ ‘the presumption of the law is that his testimony would have been adverse to the defense.’ ” (Ibid.) The trial court overruled defense objections to these and similar statements by the prosecutor. (Id. at pp. 360–361.)

Our Supreme Court found the prosecutor’s statements “were under the circumstances wholly unauthorized and highly improper,” and the court’s overruling of the defendant’s objections was reversible error. (Smith, supra, 121 Cal. at pp. 361–362.) The court explained that “[t]here was, as we have seen, no evidence to warrant the fact stated by the district attorney in the remarks quoted, nor the unfavorable inference deduced therefrom,” but the court’s overruling of the defendant’s objections “implicitly told the jury that both the statement of fact and the deduction made by the district attorney therefrom were proper matters for their consideration.” (Ibid.) The Supreme Court emphasized “it is error to permit counsel, against objection, in argument before the jury, to make statements of, or comments upon, facts not in evidence . . . .” (Id. at p. 362.)

Jackson suggests that, under Smith, a prosecutor may never comment on the failure to call a logical witness unless there is evidence in the record showing the person in question is “available as a witness” or “amenable to process.” We do not read Smith as establishing such a blanket precondition on a prosecutor’s ability to comment on the state of the evidence or on the failure to call logical witnesses, a species of argument that our Supreme Court has repeatedly held is permissible. (E.g., Gonzales, supra, 54 Cal.4th at p. 1275; People v. Castaneda, supra, 51 Cal.4th at p. 1333; People v. Brown (2003) 31 Cal.4th 518, 554.) Instead, as we read it, Smith applied the narrower (and well-established) principle that counsel may not state facts in argument that are not supported by the record. As noted, in Smith, the prosecutor expressly asserted the defendant’s brother had been subpoenaed by the defense (and thus apparently was available to testify), when there was no evidence in the record to support that factual assertion (Smith, supra, 121 Cal. at pp. 360–361), and the Supreme Court based its finding of error on the rule that counsel may not state facts in argument that are not in evidence (id. at p. 362). This is in accord with more recent Supreme Court authority. (People v. Stankewitz (1990) 51 Cal.3d 72, 102 [“It is axiomatic that counsel may not state or assume facts in argument that are not in evidence.”; trial court properly sustained prosecutor’s objection to defense counsel’s assertion in closing argument that certain witnesses were “available,” when there was no evidence on that point].)

Here, the prosecutor did not make such unsupported factual assertions; he responded to defense counsel’s argument about Jones’s alleged presence at the scene by noting Jackson’s failure to call Jones as a witness. The prosecutor also did not make incorrect statements of law, such as arguing the law required the jury to presume Jackson’s brother would have provided adverse testimony. (See People v. Hughey (1987) 194 Cal.App.3d 1383, 1396, fn. 7 [prosecutor may comment on failure to call logical witness; distinguishing Smith on the ground it involved a prosecutor’s misstatement of the law].) Indeed, as noted, the prosecutor emphasized Jackson had no burden to present evidence. And the prosecutor did not speculate as to what Jones would have said if he had testified. (See Gonzales, supra, 54 Cal.4th at p. 1275 [it was not improper for prosecutor to comment on defense’s failure to call certain witnesses; trial court properly sustained objection when prosecutor went on to speculate as to what those witnesses would have said].) Finally, we note that the trial court here, in an “abundance of caution,” sustained the defense’s objection, thus redirecting the prosecutor and cutting off any potentially misleading argument on this point. (Cf. Smith, supra, 121 Cal. at p. 362 [court’s overruling of objections “implicitly told” the jury it could draw improper inference suggested by prosecutor].) Smith does not require reversal here.

As noted, the prosecutor began his comments on Jackson’s failure to call his brother as a witness by stating “there is this thing in the law called the failure to call a logical witness.” Jackson suggests that, by using this phrase, the prosecutor improperly argued “ ‘the law’ called for an inference against” Jackson because he did not call his brother as a witness. We do not think a reasonable juror would construe the challenged language as an improper assertion that the law imposed a presumption as to the content of Jackson’s brother’s testimony, or as a claim that the burden of proof somehow had shifted to the defense, especially since the prosecutor emphasized the defense had no burden to produce evidence. In context, it is clear the prosecutor just used the quoted phrase (introducing the concept of “failure to call a logical witness”) to segue into his substantive comments on Jackson’s failure to call a logical witness. As discussed, those substantive comments were permissible, particularly since they were presented in response to defense counsel’s argument on this point.

Jackson is incorrect in asserting People v. Ford (1988) 45 Cal.3d 431 (Ford) establishes a rule that a prosecutor may not comment on the failure to call a witness unless there is evidence establishing the witness is available to testify. Indeed, that case cuts strongly against Jackson’s position here. In Ford, the defendant and three alleged accomplices were charged with burglary. (Id. at p. 436.) At the time of the defendant’s trial, two of his alleged accomplices had entered guilty pleas but had not yet been sentenced, and the third had not yet been tried. (Ibid.) The defendant testified and offered an alibi defense that, if true, also would have exonerated some of his accomplices. (Id. at pp. 437–438, 442.) In closing argument, the prosecutor commented on the defendant’s failure to call the alleged accomplices to corroborate his alibi. (Id. at pp. 435, 438.)

The defendant in Ford argued on appeal that the prosecutor’s comment was improper, because the accomplices, if called as witnesses, could have exercised the privilege against self-incrimination and therefore were “ ‘unavailable.’ ” (Ford, supra, 45 Cal.3d at pp. 435–436, 439.) The Supreme Court rejected this argument, holding that a witness who may exercise a privilege is not unavailable. (Ibid.) The witness first must be called and must invoke the privilege. (Id. at pp. 435–436, 440.) At that point, comment on his or her exercise of the privilege is precluded. (Evid. Code, § 913, subd. (a);[3] Ford, supra, 45 Cal.3d at p. 435.) Beyond this limitation, the court declined to create a presumption that any class of potential witnesses is unavailable and that comment on their absence is improper. (Id. at p. 449.)

In the course of rejecting the defendant’s argument that the witnesses in that case should be presumed unavailable and therefore comment on their failure to testify should be held improper, the Ford court noted the whereabouts of the witnesses in that case “were known and they were subject to subpoena. They were, therefore, literally ‘available.’ ” (Ford, supra, 45 Cal.3d at pp. 440, 449.) But the court did not hold the prosecution must prove a witness is available and would testify favorably to the defense as a precondition to commenting on the state of the evidence or the failure to call a logical witness. Instead, the court emphasized that such comments generally are permissible: “Because comment inviting the jury to draw a logical inference based on the state of the evidence, including comment on the failure to call available witnesses, is permissible except as limited by [Evidence Code] section 913 and [Griffin v. California (1965) 380 U.S. 609, 615 (prohibiting comment on defendant’s failure to testify)] [citations], the [prosecutor’s] comment did not constitute misconduct.” (Ford, supra, 45 Cal.3d at p. 449, italics added; see id. at p. 448.)

People v. Varona (1983) 143 Cal.App.3d 566, cited by Jackson, also is inapposite. In Varona, the trial court erroneously excluded certain evidence that the defense attempted to introduce, and the prosecutor then improperly “argued the ‘lack’ of evidence where the defense was ready and willing to produce it . . . .” (Id. at pp. 569, 570; see People v. Lawley (2002) 27 Cal.4th 102, 156 [Varona “involved erroneous evidentiary rulings on which the prosecutor improperly capitalized during his closing argument” (italics added)].) No such conduct occurred here.

Finally, Jackson suggests the prosecutor’s remarks did not constitute proper comment on the failure to call a logical witness, because, he claims, it would not be “ ‘logical’ ” for Jones to testify and implicate himself as the shooter. The fact a witness’s potential testimony could incriminate the witness does not necessarily mean the witness would not testify. (See Ford, supra, 45 Cal.3d at p. 442 [“Nor should the court assume that, even if testifying would incriminate a witness, in all cases the witness would be unwilling to give truthful testimony that would exonerate a codefendant.”].) And in any event, as noted, defense counsel did not just argue Jones could have been the shooter; counsel also argued more generally that Jones’s presence (testified to by Garrett) undermined Stewart’s credibility. Beyond that, defense counsel suggested that what Jones might have had to say about the underlying events was important, and faulted the police and prosecution for not pursuing such information. Counsel argued there was no evidence the police had investigated Jones’s possible presence or involvement in the crime, and noted “there is no evidence of any statements taken from Mr. Jones regarding if he was even there, if he observed anything.” It was not improper for the prosecutor to respond to these points by treating Jones as a logical witness and commenting on the defense’s failure to call him.

B. Alleged Instructional Error

In its written instructions, which were provided to the jury, the court instructed on the charged offense of murder and the lesser included offense of voluntary manslaughter. The instructions explained that an unlawful killing with malice is murder (CALCRIM No. 520), and that, if the jury were to decide Jackson committed murder, it would be second degree (rather than first degree) murder unless the prosecution proved Jackson acted willfully, deliberately, and with premeditation (CALCRIM Nos. 520, 521). In addition, at Jackson’s request, the court included instructions (1) explaining that provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter (CALCRIM No. 522), and (2) explaining heat of passion voluntary manslaughter, including describing the provocation that reduces murder to heat of passion voluntary manslaughter (CALCRIM No. 570). The court also included instructions on the firearm possession charge and enhancements, as well as a pre-deliberation instruction (CALCRIM No. 3550), which referred to the verdict forms to be used by the jury.

When the court was reading its instructions to the jury, the court read the above instructions on murder and manslaughter, the instructions on the other charges and enhancements, and the pre-deliberation instruction. While reading the pre-deliberation instruction (CALCRIM No. 3550), the court read that “[y]ou will be given verdict forms,” and then, departing from the written instructions, the court orally described the forms and how to complete them. The court stated in relevant part: “As to count one, there is a verdict form which will indicate whether the defendant is guilty and whether you are fixing it at first or second degree, and whether you find the allegations to be true or not. [¶] If you find him not guilty of first-degree murder, you must do so before reaching second degree, and we will need that form back and signed by your foreperson. [¶] If you find him not guilty then of second-degree murder, you must sign that form before reaching the lesser included offense of voluntary manslaughter, and you will be given forms on voluntary manslaughter, both guilty and not guilty.”

Jackson argues the court’s oral statement that the jury had to complete the second degree murder verdict form “before reaching” voluntary manslaughter was error under People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman), because it precluded the jury from considering voluntary manslaughter before returning a verdict on second degree murder. In Kurtzman, our Supreme Court held that, under its prior decision in Stone v. Superior Court (1982) 31 Cal.3d 503, a court may “restrict[ ] a jury from returning a verdict on a lesser included offense before acquitting on a greater offense” but may not “preclude [it] from considering lesser offenses during its deliberations.” (Kurtzman, supra, 46 Cal.3d at pp. 324–325.) As summarized by the Sixth District in People v. Olivas (2016) 248 Cal.App.4th 758 (Olivas), “Kurtzman thus affirmed the validity of an ‘acquittal-first’ rule—that the jury may not return a verdict on a lesser offense unless it first finds a defendant not guilty of the greater offense—but rejected a strict acquittal-first rule, applied in some states, ‘under which the jury must acquit of the greater offense before even considering lesser included offenses.’ ”[4] (Olivas, supra, at p. 773, citing Kurtzman, supra, at pp. 329, 333–334.)

We review claims of instructional error de novo. (See People v. Waidla (2000) 22 Cal.4th 690, 733; Olivas, supra, 248 Cal.App.4th at pp. 772–773.) If a challenged instruction is ambiguous, we determine whether there is a “ ‘reasonable likelihood that the jury construed or applied the challenged instructions in a manner’ contrary to law.” (Olivas, at p. 772.) Finally, even where the trial court has misdirected the jury, reversal is not warranted “unless it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred.” (People v. Breverman (1998) 19 Cal.4th 142, 149, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); accord, People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 [Kurtzman error “appears to implicate California law only”], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; Kurtzman, supra, 46 Cal.3d at p. 335; Olivas, supra, 248 Cal.App.4th at p. 775.)

Before proceeding to the merits of Jackson’s claim, we address his argument as to one aspect of the governing legal standards we have summarized above. Jackson contends the prejudice standard in Chapman v. California (1967) 386 U.S. 18 (rather than the Watson standard) should apply, because the challenged statement by the court “had an effect similar to a complete omission of voluntary manslaughter instructions.” He relies on People v. Thomas (2013) 218 Cal.App.4th 630, 633, 641–642, 644–645 (Thomas), where the court held a refusal to instruct on the provocation/heat of passion theory of voluntary manslaughter (in which heat of passion caused by legally sufficient provocation precludes the formation of malice) was federal constitutional error because it relieved the prosecution of the burden to prove the malice element of murder beyond a reasonable doubt. We reject Jackson’s argument. Here, in contrast to Thomas, the trial court gave both of the provocation instructions requested by Jackson (CALCRIM Nos. 522 and 570). And CALCRIM No. 570 expressly emphasized the prosecution’s burden to prove malice beyond a reasonable doubt, the point that was not conveyed to the jury in Thomas: “The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a 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.” In any event, an alleged misdirection of the jury as to the order of deliberations under Kurtzman—which noted that other states follow different practices—is not equivalent to a refusal to instruct on a lesser included offense and is not federal constitutional error; it is an error of state law and is subject to review for prejudice under the Watson standard. (Kurtzman, supra, 46 Cal.3d at pp. 333–335; accord, People v. Berryman, supra, 6 Cal.4th at p. 1077, fn. 7; Olivas, supra, 248 Cal.App.4th at p. 775.)

Turning to the merits of Jackson’s claim of instructional error, we conclude the trial court’s oral statements here do not require reversal. First, the court’s oral statements were not included in the written instructions provided to the jurors for use during their deliberations. “ ‘To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.’ ”[5] (People v. Mills (2010) 48 Cal.4th 158, 200–201 [rejecting claim of reversible error where trial court misspoke multiple times while reading instructions to the jury].) Here, the jury was given correct instructions in written form and was instructed with CALCRIM No. 200 to “[o]nly consider the final version of the instructions in your deliberations.”[6] We therefore find no reversible error. (See People v. Mills, supra, 48 Cal.4th at pp. 200–201.)

Second, even if we were to consider the court’s oral statements to be part of the instructions provided to the jury, there is not a “ ‘reasonable likelihood that the jury construed or applied’ ” those statements “ ‘in a manner’ contrary to law.” (Olivas, supra, 248 Cal.App.4th at p. 772.) As noted, the court made the statements as part of a brief aside about the verdict forms, after it had read the full instructions on murder and voluntary manslaughter, including provocation. In that context, it is likely the jury understood the court’s statements as controlling the order in which they were to complete the forms, rather than limiting the content of their deliberations. (Cf. Kurtzman, supra, 46 Cal.3d at p. 335.)

Third, it is not reasonably probable that, absent the court’s oral statements, Jackson would have obtained a more favorable result. (People v. Breverman, supra, 19 Cal.4th at p. 149.) In addressing the question of prejudice, we note our Supreme Court’s admonition that, even when a trial court commits Kurtzman error by improperly instructing the jury about the order of deliberations, there is an “inherent difficulty” in demonstrating prejudice from such error. (People v. Fields (1996) 13 Cal.4th 289, 309, fn. 7.) Prejudice arising from Kurtzman error is hard to show because, “in the abstract,” an erroneous instruction that a jury must acquit on a greater charge before turning to lesser charges “appears capable of either helping or harming either the People or the defendant. In any given case, however, it will likely be a matter of pure conjecture whether the instruction had any effect, whom it affected, and what the effect was.” (People v. Berryman, supra, 6 Cal.4th at p. 1077, fn. 7.) Here, Jackson has not shown the court’s oral statements prejudiced him.

Jackson argues that, because of the court’s oral statements, the jury likely never considered whether the evidence showed sufficient provocation to preclude the formation of malice. Jackson further asserts the jury’s verdict of second degree (rather than first degree) murder establishes the jury found Jackson was provoked, but then could not consider whether that provocation was sufficient to preclude the formation of malice so that Jackson was guilty only of voluntary manslaughter. We are not persuaded.

We note that, contrary to Jackson’s assumption, it is not clear that the jury’s verdict of second degree (rather than first degree) murder could only have been based on a finding Jackson was provoked. The verdict could have been based on a finding that the prosecution did not prove an element of first degree murder, such as premeditation. (See § 189; CALCRIM No. 521.) (In other portions of his appellate briefs, Jackson asserts this court must treat the verdict as establishing “he had no premeditated intent to kill.”)

In any event, in light of the court’s correct written instructions on homicide and provocation, Jackson is incorrect in asserting it is likely the jury (1) determined the evidence established “the elements of second-degree murder,” and then (2) skipped any consideration of whether there was sufficient provocation to preclude the formation of malice and warrant a verdict of voluntary manslaughter. To the contrary, the court’s written instructions required the jurors to consider the existence and degree of provocation as part of their decision as to whether Jackson was guilty of murder.

The court instructed the jury (pursuant to CALCRIM No. 500) that murder and manslaughter are types of homicide. The court next instructed (pursuant to CALCRIM No. 520) that, to prove Jackson was guilty of murder, the prosecution had to prove (1) “The defendant committed an act that caused the death of another person,” (2) “When the defendant acted, he had a state of mind called malice aforethought,” and (3) “He killed without lawful excuse.” The court defined express and implied malice (CALCRIM No. 520), explained the additional elements required to prove first-degree murder (CALCRIM No. 521), and (using CALCRIM Nos. 522 and 570, requested by Jackson) explained the significance of provocation to the jury’s determination.

CALCRIM No. 522 told the jury to consider provocation both in deciding whether the crime was first or second degree murder, and in deciding whether Jackson committed murder or manslaughter. “Provocation 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.” (Italics added.) Jackson’s suggestion that the jury considered this instruction in deciding he was guilty of second degree (rather than first degree) murder, but then ignored the admonition in the same instruction that provocation was also relevant in determining whether he committed murder or manslaughter, is not persuasive.

CALCRIM No. 570 further reinforced the point that the jury had to consider provocation in determining whether Jackson was guilty of murder. That instruction told the jury that “[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.” The instruction elaborated on the nature of provocation that will preclude the formation of malice and thus lead to a verdict of voluntary manslaughter rather than murder. Most importantly, CALCRIM No. 570 instructed the jurors that they could not convict Jackson of murder unless the prosecution proved beyond a reasonable doubt that he did not kill as the result of a sudden quarrel or in the heat of passion. As noted above, CALCRIM No. 570 states: “The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a 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.” (Italics added.) The court’s correct written instructions thus required the jury to consider the question of provocation in determining whether Jackson was guilty of murder. There is no reasonable likelihood the jury considered in isolation the question whether Jackson intentionally killed Rachal and then returned a verdict of murder without considering the question of provocation.

C. The Alleged Miranda Violation

At the police station after Jackson’s arrest on December 13, 2012, officers collected a DNA sample (a cheek swab), and Officer Eric Milina asked preliminary questions (such as Jackson’s name and birthdate) and then stated, “the Parole Team got you this morning with a gun.” Jackson replied, “Yeah.” Milina then stated that, before asking about the gun, he needed to read Jackson his Miranda rights. Milina read the Miranda warnings, and he and another officer interviewed Jackson. During the interview, Jackson admitted being present when Rachal was killed, but he denied shooting Rachal.

At a pretrial hearing on Jackson’s motion to suppress his statements to the police, defense counsel argued in part that Milina’s initial statement about the gun “could be intended to deliberately elicit an incriminating response without Miranda,” and the officer’s subsequent reading of the Miranda warnings “is really an empty gesture, because the cat is out of the bag.” The trial court ruled most of Jackson’s statements were admissible (but ruled the final portions inadmissible because the officers continued questioning after Jackson stated he wanted to end the interview).

On appeal, Jackson argues Milina’s statement prior to giving Miranda warnings, and Jackson’s response, required the suppression of all of Jackson’s post-warning statements, and the failure to suppress those statements was reversible error. He initially contends Milina’s statement constituted interrogation for Miranda purposes because it was likely to elicit an incriminating response from Jackson. (See Rhode Island v. Innis (1980) 446 U.S. 291, 301 [“the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” (fns. omitted)].) Even assuming this is correct, such a pre-warning exchange does not necessarily require suppression of post-warning statements.

Instead, in general, when a suspect makes a voluntary statement in custody after waiving Miranda rights, the statement is not rendered inadmissible merely because the suspect also made a voluntary in-custody statement before the Miranda warning.[7] (Oregon v. Elstad (1985) 470 U.S. 298, 309, 314, 318 (Elstad).) An exception to this rule applies when officers initially interrogate a subject without giving Miranda warnings, and then, after obtaining an incriminating statement, advise the suspect of his rights and elicit the same or additional statements, for the purpose of evading Miranda protections. (Missouri v. Seibert (2004) 542 U.S. 600, 604–607, 617 (Seibert) (plur. opn. of Souter, J.) [officer questioned subject for 30–40 minutes and made a “ ‘conscious decision’ ” to withhold Miranda warnings, pursuant to interrogation technique he had been taught, i.e., to “question first, then give the warnings, and then repeat the question ‘until I get the answer that she’s already provided once’ ”].) A deliberate effort to evade Miranda by using such a two-step interrogation procedure may render the statements inadmissible. (People v. Rios (2009) 179 Cal.App.4th 491, 505.)[8]

The question, therefore, is whether Milina made his pre-warning statement to Jackson as part of a deliberate two-step interrogation strategy, with the intent to elicit information in a manner that would effectively deprive Jackson of his Miranda protections. This is a factual question we review for substantial evidence. (People v. Camino, supra, 188 Cal.App.4th at p. 1372.)

Substantial evidence supports the conclusion that Milina did not engage in a deliberate two-step interrogation process to evade the protections of Miranda. Unlike the interrogation that was calculated to evade Miranda protections in Seibert, there was no evidence here that the Oakland Police Department had a policy of deliberately withholding Miranda warnings until after obtaining a suspect’s confession, and Milina did not state he withheld the warnings to evade Miranda protections. Moreover, Milina made his statement in the context of explaining why the officers needed to collect a DNA sample from Jackson. And after Jackson gave an affirmative response to Milina’s initial statement about the gun, Milina cautioned Jackson not to continue speaking until after Milina had read the Miranda warnings.

Jackson argues the record shows Milina deliberately sought to evade Miranda because (1) much later in the interview, he and his fellow officer continued questioning after Jackson stated he no longer wanted to speak, (2) Milina misstated the contents of the Miranda waiver form he asked Jackson to sign, and (3) the officers did not need to collect Jackson’s DNA at the beginning of the interview and did so only as part of a “ruse” to elicit pre-warning statements from Jackson. But the trial court was not required to construe the evidence as establishing that Milina’s initial comment was part of a scheme to evade Miranda. The court reasonably could conclude instead that Milina just made some introductory remarks in conjunction with the collection of DNA, especially since after Jackson made one brief incriminating pre-warning response, Milina immediately told Jackson not to continue speaking until after hearing the warnings. In contrast to United States v. Capers (2nd Cir. 2010) 627 F.3d 470, 472–473, 480–481, 483 (on which Jackson relies), this was not a case in which an officer questioned a suspect for several minutes prior to giving Miranda warnings, obtained a substantive confession, and then gave reasons for the pre-warning questioning that lacked credibility in light of the circumstances. Substantial evidence supports the conclusion Milina did not engage in a two-step interrogation strategy calculated to deprive Jackson of his Miranda rights. Accordingly, the general rule in Elstad, rather than the exception in Seibert, applies here, and the pre-warning exchange between Milina and Jackson provides no basis for suppressing Jackson’s post-warning statements.

D. Cumulative Prejudice

Jackson argues the cumulative prejudicial impact of the trial court’s alleged errors requires reversal. As discussed, we conclude the court did not err by declining to admonish the jury or declare a mistrial in response to the prosecutor’s statements in closing argument, or by admitting into evidence Jackson’s post-Miranda warning statements to the police. And we conclude the court’s alleged instructional error was not prejudicial under the applicable standard; we have found no other error that would combine with that alleged error to create cumulative prejudice.

E. The Request to Continue the Sentencing Hearing

1. Additional Background

After the jury verdict in December 2013, Jackson waived time for sentencing, and the court set the sentencing hearing for February 21, 2014. At the February 21 hearing, at defense counsel’s request, the court continued the hearing to March 7, 2014. In requesting the continuance, counsel stated Jackson’s maternal aunt had reported that morning that an acquaintance named Rochelle had stated she had heard Jackson was not the shooter. Counsel stated he had a lead that Rochelle was in an Oakland recovery program, and he felt obligated to investigate.

At the March 7 hearing, defense counsel asked for a second continuance of sentencing, asking for a “few more weeks” to investigate the information reported at the prior hearing, in an effort to develop a basis for a new trial motion. Counsel stated his investigator made the following efforts after the February 21 hearing: The investigator went to the recovery program where Rochelle reportedly was staying, but the program administrator stated that, under privacy laws, she could not confirm whether a specific person was or had been in the program. The investigator left his business card and requested that Rochelle (if she was in the program) be asked to contact him, but he did not hear from her. The investigator also tried to contact Jackson’s aunt. He spoke to her once when she was in a hospital receiving medical treatment, and she indicated she would be able to facilitate contact with Rochelle, but the investigator’s subsequent efforts to contact the aunt were unsuccessful.

The court found there was no good cause for a second continuance and denied the request, noting the information supporting it was hearsay that had been provided to the court “through unsworn statements through counsel.”

2. Analysis

A continuance in a criminal case may be granted only for good cause. (§ 1050, subd. (e); People v. Snow (2003) 30 Cal.4th 43, 70, 76–77.) The trial court has broad discretion to grant or deny a motion for a continuance. (People v. Grant (1988) 45 Cal.3d 829, 844.) “ ‘[A]n order of denial is seldom successfully attacked.’ ” (People v. Beeler (1995) 9 Cal.4th 953, 1003.) Jackson has the burden to show an abuse of discretion. (People v. Beames (2007) 40 Cal.4th 907, 920.)

The trial court did not abuse its discretion. Jackson did not show he could obtain specific, relevant evidence within a reasonable time. (See People v. Doolin, supra, 45 Cal.4th at pp. 450–451; People v. Beeler, supra, 9 Cal.4th at p. 1003.) The court reasonably could conclude the limited and uncertain information provided by defense counsel did not constitute good cause justifying a continuance.

Jackson relies on People v. Trapps (1984) 158 Cal.App.3d 265, but that case is inapposite. In Trapps, after the defendant was convicted of burglary and sex offenses, he sought a continuance of the sentencing hearing to retain an attorney to replace his court-appointed counsel, and the trial court denied the request. (Id. at pp. 267, 270.) Because the trial court’s ruling implicated the defendant’s constitutional right to counsel, the appellate court applied the rule that “ ‘[a] court will not interfere with the defendant’s right to be represented by counsel of his choice unless to accommodate him would result in a disruption of the ordinary process of justice to an unreasonable degree.’ ” (Id. at p. 271.) Since a reasonable continuance would not have disrupted the orderly administration of justice and the record revealed no good reason for denying the request for a continuance to retain counsel, the appellate court in Trapps concluded that the trial court had abused its discretion. (Ibid.) Jackson did not seek a continuance for the purpose of retaining new counsel, so the concerns at issue in Trapps are not implicated here. As discussed, to obtain a continuance, Jackson had to show good cause, and the court did not abuse its discretion in determining he had not done so.

III. DISPOSITION

The judgment is affirmed.

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Streeter, J.

We concur:

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Ruvolo, P.J.

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Reardon, J.

A141705/People v. Jackson