P. v. Diaz

























Filed 1/25/13 P. v. Diaz CA4/3

















>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. RAMON DIAZ, Defendant and Appellant.

G046207 (Super. Ct. No. 08CF2659) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, John Conley, Judge.
Affirmed.

Edward
J. Haggerty, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant
Ramon Diaz, a minor, was convicted of a special circumstance gang-related
murder and found to have personally discharged a firearm causing death or
injury in the commission of the murder. He contends, inter alia, there is
insufficient evidence of deliberation and premeditation, the court erred in
instructing the jury, and the prosecutor committed href="http://www.fearnotlaw.com/">misconduct. We affirm.

I

FACTS

The
information charged defendant Ramon Diaz and Oscar Hernandezhref="#_ftn1" name="_ftnref1" title="">[1] with murder (Pen. Code,href="#_ftn2" name="_ftnref2" title="">[2] § 187, subd. (a); count one) and actively participating in a
criminal street gang (§ 186.22, subd. (a); count two). The information further alleged the murder
was committed for the benefit of, or in association with a href="http://www.mcmillanlaw.com/">criminal street gang (§ 186.22, subd.
(b)(1)), defendant personally discharged a firearm causing injury or death (§
12022.53, subd. (d)), Hernandez vicariously discharged a firearm (§ 12022.53,
subds. (d), (e)(1)), and a gang-murder special circumstance (§ 190.2, subd.
(a)(22)) in connection with the murder
charge. A third count, voluntary
manslaughter (§ 192, subd. (a)), was subsequently added by interlineation
shortly before trial.

Saul R.
got out of school on the afternoon of September 10, 2008, and was walking with
his sister when he saw a friend of his, Rodrigo Valle, on the corner of Flower
and Walnut Streets. Saul R. and Valle
started talking, a crowd started to form, and Saul R.’s sister told him to get
away from Valle. Saul R. saw defendant
and another male wearing a baseball hat with a “B” on it approach Valle.

Defendant
asked Valle where he was from. Valle did
not answer. Saul R.’s cousin was there
and started crying. Valle then responded,
“Let’s get down,”href="#_ftn3"
name="_ftnref3" title="">[3] and “Krazy Proud Criminals” (KPC).
Defendant said, “No,” and pulled out a gun. Saul R. said Valle attempted
to run, but was unable to as defendant shot Valle in the chest. Valle went to the ground and Saul R. heard
three more shots. Then defendant and the
male with the baseball hat ran. Saul R.
stayed with Valle until the police and ambulance arrived.

Saul R.
knew KPC is a gang and that Barrio Small Town is a rival gang. He also knew that asking “where are you
from,” is a “hit up” by a gang member.
Saul R. had been hit up by defendant the week before defendant shot
Valle. Defendant identified himself as
“Bandit” from Small Town. Saul R.
replied he did not “bang” and defendant let him go about his business.

Valle’s
sister was a student at the school. She
said her brother met her at school that day to walk her home. She noticed her brother and defendant staring
at each other. Then defendant and
another male approached them. Valle took
off his outer shirt. Defendant asked Valle
where he was from. Valle said he was
from KPC. Defendant then shot him four
or five times and ran away. She said
defendant advanced on her brother just prior to shooting him, and her brother
backed up against a fence. Valle was
“like almost leaning on the fence” when he was shot. She saw defendant was wearing a glove on his
gun hand. Valle was unarmed and no blows
had been exchanged or attempted.

Defendant’s
girlfriend at the time of the shooting testified. As she was leaving school that day, she saw
defendant on the corner of Flower and Walnut Streets. She denied any memory of the shooting, but in
the recorded statement she made to the police, she said she saw defendant cross
the street and approach two males on the other side, asked one of the males
where he was from, heard defendant laugh at the response, pull a gun out of his
waistband and start shooting. She said
she and defendant’s cousin attempted to keep him from assaulting Valle, but he
would not listen.

She
also told police defendant had belonged to another gang and had the moniker
“Panic.” He then got jumped into Barrio
Small Town and has the moniker “Bandit.”

Defendant’s
cousin saw defendant approach Valle. She
saw something in his hand, but thought it was a knife or a shank. She realized it was a gun after she heard
three loud gunshots.

Ana N.
was a classmate of defendant’s at the school.
She saw defendant remove a handgun from his waistband before the
shooting and run away after the shooting.

Officer
Michael Kuplast of the Santa Ana Police Department was dispatched to the
location of the shooting. He saw a young
male Hispanic on his back, bleeding from his upper torso. Kuplast tried speaking with him but Valle was
unable to respond. Paramedics arrived
shortly thereafter and transported Valle.

Kuplast
found six .22-caliber shell casings in the area of the shooting. Another officer searched Valle at the
scene. Valle was not armed.

Sergeant
Charles Flynn took part in the investigation and contacted defendant. After being advised of his >Mirandahref="#_ftn4" name="_ftnref4" title="">[4] rights, defendant denied any awareness of the shooting. Defendant also denied membership in any
gang. Flynn noticed defendant had an “S”
tattooed on one arm and a “T” on the other.
Flynn said the tattoos were a reference to the Barrio Small Town
criminal street gang.

Dr.
Anthony Juguilon performed the autopsy on Valle. Valle had been shot four times. One gunshot wound was to Valle’s right upper
back. The bullet pierced both lungs as
well as the superior vena cava — the largest vein in the body — and the
pulmonary vein. That bullet entered the
pulmonary vein, went into the heart and then traveled through an artery,
finally coming to rest in Valle’s left femur area.

There
was a gunshot wound to Valle’s lower left back.
That bullet entered the abdominal cavity, lacerating the small
bowel. The bullet exited through the
upper abdomen. A third gunshot wound was
to the inside back of Valle’s right forearm.
The fourth gunshot wound was superficial. The bullet entered Valle’s right wrist and
exited through the top of his right hand.

Dr.
Juguilon examined the body for stippling — unburned gunpowder found when a
firearm is fired within approximately two feet — and did not find any. The doctor said the lack of stippling means
the shots were fired from a distance of at least two feet.

Detective
Julian Rodriguez is familiar with the criminal street gangs Krazy Proud
Criminals and Barrio Small Town. He said
the two gangs are rivals. He testified
to the common signs or symbols used by Barrio Small Town, including their use
of the letter B from sports teams like the Bruins or the Boston Red Sox. He also testified the gang’s primary
activities are assault with a firearm and possession of firearms, and to the
gang’s pattern of criminal activity. The detective said a “hit-up” consists of
asking a person where he is from. He
said the purpose may be twofold: either because the person hitting up the other
does not know the person and he is in their territory, or the person doing the
hit up has already determined to initiate a confrontation. The detective opined defendant was an active
participant in the Barrio Small Town criminal street gang and that the shooting
was for the benefit of and at the direction Barrio Small Town because an act of
violence in broad daylight sends a message to the community about the gang,
causing fear (or what the gang calls respect).

The
jury found defendant guilty of first degree murder and actively participating in
a criminal street gang. The jury also
found all the special allegations, including the murder special circumstance,
true. Although the special circumstance
made defendant eligible for a sentence of life in prison without the
possibility of parole (§ 190.5, subd. (b)), the court chose to impose a
sentence of 25 years to life on the murder conviction as defendant was under 18
at the time of the offense. The court
imposed a consecutive term of 25 years to life on the personal discharge of a
firearm allegation for an aggregate term of 50 years to life. The court stayed the sentence on count two
pursuant to section 654 and noted that pursuant to section 186.22, subdivision
(b)(5), defendant cannot be considered eligible for parole until he has served
at least 15 calendar years.

II

DISCUSSION

A. Sufficiency of the Evidence

Defendant
first contends the evidence does not support the jury finding he killed as a
result of deliberation and premeditation, and the evidence supports only a
charge of second degree murder. Murder
is the unlawful killing of another with malice aforethought. (§ 187, subd. (a).) The crime is divided into degrees. (§ 189.)
Murder is of the first degree when deliberate and premeditated. If the murder is not shown to be of the first
degree, it is deemed to be second degree murder. (Ibid.)

1. Standard
of Review

“‘In
assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]”
(People v. Steele (2002) 27
Cal.4th 1230, 1249.) We must accept all
assessments of credibility made by the trier of fact and determine if
substantial evidence exists to support each element of the offense. (See People
v. Carpenter (1997) 15 Cal.4th 312, 387.)
We presume in support of the judgment the existence of every fact that
could reasonably be deduced from the evidence.
(People v. Kraft (2000) 23
Cal.4th 978, 1053.) We may reverse for
lack of substantial evidence only if “‘upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’” (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
In making this inquiry, it is important to note we do not ask ourselves
whether we believe the evidence
established guilt beyond a reasonable doubt.
(Jackson v. Virginia (1979)
443 U.S. 307, 318-319.) “Instead, the
relevant question 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.
[Citation.]” (>Id. at p. 319.) “The standard of review is the same when the
prosecution relies mainly on circumstantial evidence. [Citation.]”
(People v. Valdez (2004) 32
Cal.4th 73, 104.)

“While
reasonable minds may differ on the resolution of [a particular issue], our sole
function is to determine if any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
[Citations.]” (>People v. Lashley (1991) 1 Cal.App.4th
938, 946.) “If the circumstances
reasonably justify the jury’s findings, the reviewing court may not reverse the
judgment merely because it believes that the circumstances might also support a
contrary finding. [Citations.]” (People
v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. omitted.)

2. The
Evidence Supports the Conviction

“Proof
of deliberation, premeditation and willfulness may be inferred from facts and
circumstances which furnish a reasonable foundation for such a conclusion. [Citations.]”
(People v. Brubaker (1959) 53
Cal.2d 37, 40.) “‘Deliberation’ refers
to careful weighing of considerations in forming a course of action;
‘premeditation’ means thought over in advance.
[Citations.] ‘The process of
premeditation . . . does not require any extended period of time. “The true test is not the duration of time as
much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly. . . .”
[Citations.]’ [Citation.]” (People
v. Koontz (2002) 27 Cal.4th 1041, 1080.)
“We do not undertake to say, as a matter of law, how long a thought must
be pondered before it can be said to be deliberated and premeditated. That is fundamentally a question of fact for
the jury in each case . . . .”
(People v. Bender (1945) 27
Cal.2d 164, 184, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 109-110.) On the other hand, “‘[w]hen the killing is
proved to have been committed by the defendant, and nothing further is shown,
the presumption of law is that it was malicious and an act of murder; but in
such a case the verdict should be murder of the second degree, and not murder
of the first degree.’ [Citation.]” (People
v. Bender, supra, 27 Cal.2d at p.
179.)

In >People v. Anderson (1968) 70 Cal.2d 15,
our Supreme Court set forth guidelines for analyzing whether a murder was
deliberate and premeditated. (>People v. Sanchez (1995) 12 Cal.4th 1,
32, disapproved on another ground in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) These guidelines were based upon three
categories of evidence recurring in the cases reviewed by the court: “planning, motive, and manner of
killing. [Citations.]” (People
v. Halvorsen (2007) 42 Cal.4th 379, 420.)
“The type of evidence which this court has found sufficient to sustain a
finding of premeditation and deliberation falls into three basic
categories: (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 the 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).” (>People v. Anderson, supra, 70 Cal.2d at pp. 26-27.)
We review each of the Anderson
categories in turn.



i. Planning
Activity

As
stated above, this factor looks to those “facts about how and what defendant
did prior to the actual killing to
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.” (People v. Anderson, supra,
70 Cal.2d at pp. 26-27.) Pertinent to
the present case, these facts include defendant’s possession of a firearm and
his membership in a criminal street gang.
That is not to say possession of a firearm in and of itself, or
membership in a criminal street gang is evidence of a preexisting intent to
kill, but these are facts to consider and here, when added to the fact that
defendant “hit up” the victim — meaning a violent confrontation was intended if
the victim did not give the right answer — and the fact defendant wore a glove
on one hand, his shooting hand, support a reasonable inference defendant killed
as a result of deliberation and premeditation.
Wearing the one glove shows defendant intended to use the gun. The jury could have reasonably concluded the
glove was worn so gunshot residue would not end up on defendant’s hand, and/or
the glove was worn so defendant’s fingerprints or DNA would not be left on the
gun. These facts support a reasonable
inference defendant deliberated and premeditated the murder.

ii. Prior
Relationship

Although
there is no evidence relating to any prior relationship between defendant and
Valle from which one might reasonably infer a motive to kill Valle, there is
other evidence to supply a motive.
Defendant was a member of Barrio Small Town and Valle was a member of a
rival gang. Defendant and Valle stared
at each other from across the street, prior to defendant approaching Valle with
a loaded firearm and a glove on his shooting hand. A “hit up” occurs when a member of a gang
inquires of someone, “Where are you from?”
According to the gang expert, the question is asked to determine if the
person is in the wrong neighborhood or as a prelude to a predetermined confrontation.
This evidence, too, supports the jury’s finding of deliberation and
premeditation.

iii. Manner
of Killing

After
defendant “hit up” Valle and Valle said he was from KPC, it appears Valle
expected a fistfight, so he took off his outer shirt. Defendant, however, just laughed and pulled
out his firearm. There was testimony
Valle attempted to run before he was shot.
Defendant shot Valle four times from behind.href="#_ftn5" name="_ftnref5" title="">[5] According to Saul R., three
of the shots occurred after Valle was already on the ground.

Laughing
at the victim’s attempt to defend himself, pulling out a gun and then shooting
the victim four times from behind as the victim attempted to run away, taken together with the above facts is
sufficient evidence of planning and motive to support a reasonable inference of
deliberation and premeditation.
Consequently, we cannot say this evidence “‘leaves only to >conjecture and surmise the conclusion
that defendant either arrived at or carried out the intention to kill as the
result of a concurrence of deliberation and premeditation.’ . . .
[Citation.]” (People v. Anderson, supra,
70 Cal.2d at p. 25.) To the contrary, we
conclude “‘a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’
[Citation.]” (>People v. Hughes (2002) 27 Cal.4th 287,
370.) The charge of first degree murder
is supported by the evidence.



B. Instructional Issues

Defendant
challenges a number of the instructions given by the court. He contends that as he was charged with a
gang-murder special circumstance allegation, the trial court erred in instructing
the jury pursuant to CALCRIM No. 370 that the charged offenses do not require
motive on defendant’s part. According to
defendant, the instruction improperly lessened the prosecution’s burden of
proof in connection with the special circumstance. He also complains about the instructions the
court gave pursuant to CALCRIM Nos. 521, 522, and 570.

1. CALCRIM
No. 370

Because defendant was
charged with a gang-murder special circumstance, the court instructed the jury
pursuant to CALCRIM No. 736. In
pertinent part, the instruction given the jury stated: “To prove that this special circumstance is
true, the People must prove that: [¶]
1. The defendant intentionally killed
Rodrigo Valle [¶] 2. At the time of the
killing, the defendant was an active participant in a criminal street gang; [¶]
3. The defendant knew that members of
the gang engage in or have engaged in a pattern of criminal activity; [¶] AND
[¶] 4. The murder was carried out to
further the activities of the criminal street gang.” Defendant acknowledges that CALCRIM No. 736
correctly states the law. He contends,
however, the trial court erred in charging the jury in the terms of CALCRIM No.
370: “The People are not required to
prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however,
consider whether the defendant had a motive.
Having a motive may be a factor tending to show the defendant is guilty. Not having a motive may be a factor tending
to show the defendant is not guilty.” He
argues this instruction lightened the prosecution’s burden to prove the
gang-murder special circumstance allegation because proof of the special
circumstance required the killing to have been committed with “the motive ‘to
further the activities of the criminal street gang.’” We review de novo whether an instruction
properly states the law. (>People v. Posey (2004) 32 Cal.4th 193,
218.)

CALCRIM
No. 370 is an accurate statement of the law.
(People v. Howard (2008) 42
Cal.4th 1000, 1024; People v. Ibarra
(2007) 156 Cal.App.4th 1174, 1192-1193.)
Defendant did not object to the giving of the instruction or seek to
have it amended. He has therefore
forfeited the issue. (>People v. Hudson (2006) 38 Cal.4th 1002,
1011-1012.)

Even
were we to reach the merits, defendant’s argument fails. “[M]otive is not an element of any crime . .
. .” (People v. Daly (1992) 8 Cal.App.4th 47, 59.) The one exception to this statement is a
violation of section 647.6. That section
punishes individuals who engage in prohibited conduct “motivated by an unnatural or abnormal sexual interest in children .
. . .” (§ 647.6, subd. (a)(2), italics
added.) Recognizing the general rule,
the court in People v. Maurer (1995)
32 Cal.App.4th 1121 declared “section 647.6 is a strange beast.” (Id.
at p. 1126.) “‘[I]t applies only to
offenders who are motivated by an
unnatural or abnormal sexual interest or intent.’ [Citation.]”
(Id. at p. 1127.) Because section 647.6 specifically requires
proof of an unnatural or abnormal sexual interest of the defendant as the
motivation for the prohibited touching, the general motive instruction was at
odds with the instruction on the elements of a section 647.6 violation. (People
v. Maurer, supra, 32 Cal.App.4th
at p. 1127.)

“‘Motive,
intent, and malice . . . are separate and disparate mental states. The words are not synonyms. . . . Motive describes the reason a person chooses
to commit a crime. The reason, however,
is different from a required mental state such as intent or malice.” (People
v. Hillhouse (2002) 27 Cal.4th 469, 504.)
Defendant’s argument was rejected by the court in People v. Fuentes (2009) 171 Cal.App.4th 1133. Fuentes had been charged with a number of
crimes, including murder. The
information also charged a gang-murder special circumstance allegation. (Id.
at p. 1137.) Fuentes argued on appeal
that the court erred in instructing the jury pursuant to CALCRIM No. 370
because the instruction contradicted the gang enhancement (§ 186.22, subd.
(b)(1) and the gang-murder special circumstance instruction, lessening the
prosecution’s burden of proof in connection thereto. (People
v. Fuentes, supra, 171
Cal.App.4th at p. 1139.)

The >Fuentes court rejected the
argument. “An intent to further criminal
gang activity is no more a ‘motive’ in legal terms than is any other specific
intent.” (People v. Fuentes, supra,
171 Cal.App.4th at p. 1139.) The court
noted a premeditated murderer’s intent to kill is not considered “a ‘motive,’
though his action is motivated by a desire to cause the victim’s death” (>ibid.), and acknowledged that “[a]ny
reason for doing something can rightly be called a motive in common language,
including—but not limited to—reasons that stand behind other reasons. For example, we could say that when A shot B,
A was motivated by a wish to kill B, which in turn was motivated by a desire to
receive an inheritance, which in turn was motivated by a plan to pay off a
debt, which in turn was motivated by a plan to avoid the wrath of a creditor.” (Id.
at p. 1140.)

We are
in agreement with the Fuentes
court. Accordingly, we find the trial
court did not err in charging the jury pursuant to CALCRIM No. 370. (See also People
v. Mejia (2012) 211 Cal.App.4th 586, 613 [conduct of provocateur in
provocative act murder sufficient to support finding the killing was “>intended to further the activities of
the gang”] italics added.) The court
correctly instructed the jury the special circumstance allegation required a
specific intent.

2. CALCRIM
Nos. 521, 522, and 570

“The
trial court has a sua sponte duty to instruct the jury on the general
principles of law relevant to the issues raised by the evidence. [Citation.]
This sua sponte duty encompasses instructions on lesser included
offenses that are supported by the evidence.
[Citation.] Additionally, even if
the court has no sua sponte duty to instruct on a particular legal point, when
it does choose to instruct, it must do so correctly. [Citation.]
Once the trial court adequately instructs the jury on the law, it has no
duty to give clarifying or amplifying instructions absent a request. [Citation.]”
(People v. Hernandez (2010)
183 Cal.App.4th 1327, 1331.)

The
trial court instructed the jury pursuant to CALCRIM Nos. 521, 522, and
570. Defendant contends these instructions
permitted the jury to convict him of first degree murder even if he acted in
the heat of passion. We disagree.

CALCRIM
No. 521 defines first degree murder and states the prosecution’s obligation to
prove beyond a reasonable doubt the killing was willful, deliberate and with
premeditation. The instruction further
states deliberation and premeditation is not present when a decision to kill is
“made rashly, impulsively, or without careful consideration.” (CALCRIM No. 521.) The instruction is consistent with its
counterpart, CALJIC 8.20, which has been found to correctly state the law. (People
v. Millwee (1998) 18 Cal.4th 96, 135.)

CALCRIM
No. 522 addresses the effect of provocation on the determination of whether a
killing was a first or second degree murder.
This instruction has been found to be a correct statement of the
law. (People v. Hernandez, supra,
183 Cal.App.4th at pp. 1333-1335.)

CALCRIM No. 570 informed
the jury that a murder may be reduced to a manslaughter if, “[a]s a result of the
provocation, the defendant acted rashly and under the influence of intense
emotion that obscured [his] reasoning or judgment” and “[t]he provocation would
have caused a person of average disposition to act rashly and without due
deliberation, that is, from passion rather than from judgment.” Like CALCRIM Nos. 521 and 522, CALCRIM No.
570 is an accurate statement of the law.
(§ 192, subd. (a); see People v.
Moye (2009) 47 Cal.4th 537, 549-550.)

Taken together, these
instructions clearly informed the jury it could only convict the defendant of
first degree murder if it found beyond a reasonable doubt he acted “willfully,
deliberately, and with premeditation.”
(CALCRIM No. 521.) The instructions further instructed the jury that a
decision to kill, “made rashly, impulsively or without careful consideration is
not deliberate and premeditated” (CALCRIM No. 521), and that provocation may
affect whether the defendant acted with deliberation and premeditation. (CALCRIM No. 522.) CALCRIM No. 570 pertained only to the
determination of whether the provocation was sufficient to reduce a murder to
manslaughter, i.e., whether malice
was negated by the provocation.
Considering the instructions as a whole (People v. Mills (2012) 55 Cal.4th 663, 679) and presuming the jury
understood and followed the court’s instructions (People v. Yeoman (2003) 31 Cal.4th 93, 139), we conclude a
reasonable juror would have understood that something less than the provocation
necessary to reduce a murder to manslaughter could negate deliberation and
premeditation.

Moreover, “[a] party may
not complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.
[Citation.]” (>People v. Lang (1989) 49 Cal.3d 991,
1024.)



C. Prosecutorial Misconduct

“[O]n
claims of prosecutorial misconduct
our state law standards differ from those under the federal Constitution. With respect to the latter, conduct by the
prosecutor constitutes prosecutorial misconduct only if it ‘“‘“so infect[s] the
trial with unfairness as to make the resulting conviction a denial of due
process.”’”’ [Citations.] By contrast, our state law considers it
misconduct when a prosecutor uses ‘“‘“deceptive or reprehensible methods to
attempt to persuade either the court or the jury.”’”’ [Citations.]
. . . ‘A defendant’s conviction will not be reversed for prosecutorial
misconduct’ that violates state law, however, ‘unless it is reasonably probable
that a result more favorable to the defendant would have been reached without
the misconduct.’ [Citation.]” (People
v. Wallace (2008) 44 Cal.4th 1032, 1070-1071.)

While
Detective David Randou testified, the prosecutor questioned him about
statements defendant’s former girlfriend made to him (the detective) about the
shooting she observed. Randou said she
identified defendant as the shooter.
People’s exhibit No. 22 was a diagram the detective used to “get some reference
points as to where people were standing and what took place at the time of the
homicide.” The prosecutor then asked the
detective about what defendant’s former girlfriend told him about what had
happened. In response to the prosecutor’s question “And what else did she tell
you,” the detective said, “She said as she started to walk towards [defendant],
[defendant] started walking toward this kid, who was standing on the, like I
said, the southwest corner. She thought
they were going to fight. She had known
[defendant] to engage in that kind of conduct.”
Defense counsel immediately objected and the court sustained the
objection, stating the answer was becoming a narrative.

Defendant
contends the judgment should be reversed based on the detective’s statement,
asserting the prosecutor committed misconduct in failing to instruct the
detective not to mention defendant’s
girlfriend thought there would be a fight because she had seen defendant in a
similar situation before. “When a prosecutor intentionally asks
questions, the answers of which he knows are inadmissible, the prosecutor is
guilty of bad faith attempts to improperly persuade the court or jury. [Citation.]”
(People v. Parsons (1984) 156
Cal.App.3d 1165, 1170.) Alternatively
defendant argues that if we find his trial counsel forfeited the issue by
failing to request a jury admonition, trial counsel was ineffective.

Defendant’s
misconduct argument fails for two reasons.
First, there is no evidence the prosecutor failed to tell the detective
not to mention the statement about defendant fighting in the past. Second, the question asked by the prosecutor
did not call for the answer given by the detective. The line of questioning had to do with what
defendant’s girlfriend told the detective “with respect to what occurred.” The prosecutor did not ask the detective
whether defendant’s girlfriend made any statements about defendant’s past
actions, a fact defendant concedes.
Consequently, we have no reason to suspect the prosecutor intentionally sought
inadmissible evidence in examining the
detective.

Misconduct by a
prosecutor need not be intentional before a defendant is entitled to a reversal
based on prosecutorial misconduct. (>People v. Hill (1998) 17 Cal.4th 800,
822, overruled on another ground in Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) However, the facts in this case do not
support finding the prosecutor engaged in misconduct, intentional or
unintentional.href="#_ftn6"
name="_ftnref6" title="">[6]

III

DISPOSITION

The
judgment is affirmed.







MOORE,
J.



WE CONCUR:







RYLAARSDAM, ACTING P. J.







ARONSON, J.