Filed 10/1/13 P. v. Nguyen CA1/5
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFF D.
NGUYEN,
Defendant and Appellant.
A133852
(San Francisco City & County
Super. Ct. No. 212655)
Jeff D. Nguyen was
convicted, by a jury, of the first degree
murder (Pen. Code, § 187, subd. (a))
that Nguyen personally used a deadly weapon (§ 12022, subd. (b)(1)). Nguyen appeals, contending that his murder
conviction should be reversed because:
(1) the trial court erroneously failed to properly answer the
jury’s question regarding premeditation during deliberations; and (2) his
trial counsel was ineffective for failing to object to the court’s response to
the jury and to the prosecutor’s misstatement of the law on provocation during
I. Factual and
Procedural Background
Prosecution Case
Ngoc
Mai, and Nguyen had two sons. Ngoc knew
that Nguyen and Mai had discussed divorce, but were trying to work things
out. Mai told Ngoc that Nguyen wanted to
stay married but Mai did not.
Mai
worked seven days a week at her hair salon.
In April 2007, Mai and her children were staying with Ngoc during spring
break. On Saturday, April 14, 2007, Mai
left for work, taking her white purse, and leaving her sons in Ngoc’s
care. At 8:00 p.m., Nguyen came by to
pick up the two boys. The next day,
around 6:00 p.m., Nguyen called Ngoc and asked if Mai was there.
Duc
Truong is married to Ngoc Banh. On the
evening of Sunday, April 15, 2007, Truong spoke to Nguyen, who said that Mai
was missing. Truong called the San
Leandro police. Truong and Ngoc traveled
to Mai’s hair salon and found it locked and the lights off. They also found Mai’s car parked
outside. Truong called Nguyen. When Truong said he was at Mai’s salon,
Nguyen said he was on his way. When
Nguyen arrived at the salon, he asked Truong who had accompanied him. Nguyen then opened the salon with a key. Nguyen entered first and went directly to the
back. Truong followed and found Mai, lifeless,
on the floor. Truong called 911. Nguyen appeared relieved.
Nguyen
made Mai’s funeral arrangements with Michael Hoogasian. Hoogasian said that Nguyen seemed “[l]ike it
was no big deal, like he was just coming in to talk to someone.†Nguyen’s primary concern was cost. When he was informed that a government
program might assist with the funeral costs, Nguyen asked about receiving any
overage, saying, “I deserve it. I am the
one that needs the money. I want that
money.†Nguyen did not appear interested
in the funeral services, telling Hoogasian that he “had more important things
to do.â€
In
November 2005, Dominic Canicosa served Nguyen with papers noticing a suit for
divorce. On cross-examination, Canicosa
testified that Nguyen was calm when served.
Officer
Jason Fletcher, of the San Leandro Police Department, testified that on April
15, 2007, at approximately 7:00 p.m., he responded to Nguyen’s home to
investigate a missing person. Nguyen was
“[v]ery, very calm.†He had red hands,
as if they had been sunburned or recently submerged under hot water. Nguyen reported that he became concerned when
Mai did not return home from a party earlier that morning. Nguyen said that he last saw Mai the previous
day, at 6:30 p.m., at her salon.
Fletcher repeatedly told Nguyen to contact San Francisco police before
moving Mai’s vehicle or entering the salon.
On
April 15, 2007, at approximately 10:00 p.m., the San Francisco Police
Department responded to the hair salon.
A body was found in the bathroom of the back room. There was no sign of a struggle.
On
April 16, 2007, Nguyen was interviewed by San Francisco police. Nguyen said that, on April 14, Mai gave him a
haircut, at the salon, around 6:45 p.m.
Nguyen denied any involvement in Mai’s death and theorized that she had
been robbed and killed. Nguyen exhibited
a “flat†demeanor throughout the interview.
On
April 25, 2007, a search was conducted at Mai’s and Nguyen’s home, in San
Leandro. A white purse was found, inside
a Macy’s plastic bag, at the bottom of a clothes hamper. The purse contained keys to the salon and
Mai’s car. A claw hammer was found on
the floor, between the wall and the washing machine.
Nguyen
was arrested and interviewed again.
Initially, Nguyen continued to deny any involvement. But, Nguyen told police that the couple’s
marriage began to fray after he accumulated a gambling debt. Nguyen signed quit claim deeds, giving Mai
his rights to the family home and property in Sacramento, in exchange for a
promise that Mai would clear his debts.
The couple also argued about child rearing.
Eventually,
Nguyen confessed to the killing. Nguyen
said: “I killed her because I was so
angry. That night . . . she
was coming out with . . . her boyfriend. . . . We . . . [were] going to get a
divorce . . . . I just
couldn’t help, you know, I work hard for my life, you know, I—I made one
mistake—gambling . . . .
But I couldn’t pay up, my debt, you know. All I wanted to do was just take care of my
son, be with my son. She told me she’s
gonna take all that . . . away from me. That’s why I got so mad and I couldn’t
control my . . . [unintelligible] moment—and I did a terrible thing
. . . now I am paying for it. . . . [¶]
. . . [¶] I . . . was so angry, so I beat her with the
hammer on her head.â€
Nguyen
told Mai, “you’re getting . . . married again, and you know, took
everything away from me.†Mai said
“no.†Nguyen became angry and wanted to
beat her. The toilet paper holder, in
the bathroom, had come loose. They both
went into the bathroom. Nguyen had a
hammer from the salon. Nguyen asked Mai
to show him where, on the wall, she wanted the toilet paper holder. When she turned around, he began hitting her,
in the back of the head, with the hammer.
Nguyen said that “[he] was crazy at the time†and could not remember how
many times he hit her. He also
said: “I was very mad. I can’t control myself
. . . .†But, he also
explained: “It was a lot of anger built
up in me . . . all these years, and then I just at that moment
. . . when she told me she . . . filing a divorce and getting
married, that’s when I got . . . so upset.â€
Nguyen
described the attack:
“A:
But at first [I] hit her . . . on the head.
“Q:
Mmm-hmm.
“A:
And I remember she tried—she reaches her hand up tried to cover her head—
“Q:
Mmm-hmm.
“A:
—I—but I hit her again. Nothing I hit
her . . . couple of more times she fell down on the sides of the
toilet when, uh, when you were facing the toilet she was falling
. . . on the left. I hit her
few times on that. Then after that I see
. . . some little bit of blood on my hand, not much, and I washed it,
and I walked away. I took her purse and
I walked away. I locked the door and I
walked away. But when I came back on
Sunday I saw her laid on this way on this side—
“Q:
Uh-huh.
“A:
—and blood’s everywhere.
“Q:
Uh-huh.
“A:
So when I left her there she didn’t die right away.â€
After
the conclusion of the interview, Nguyen led police to Lake Merritt where he
allegedly threw the hammer and Mai’s cell phone into the water. Divers looked repeatedly, but turned up nothing.
A
forensic pathologist testified that bruises were found on Mai’s armpit, right
palm, right arm, back of the right hand, left palm, back of the left hand, and
right ankle. The pathologist also found
bruises on Mai’s right forehead, tears to the back, sides, and top of the head,
tears to the back of the neck and behind her right ear, and a bruise on the
right side of her face. Mai suffered
approximately 10 separate head wounds and “a lot†of skull fractures. Some of the wounds were consistent with blows
from a hammer. The pathologist opined
that Mai died from blunt force injuries to her head. A depression in Mai’s skull was compared with
a valve knob in the bathroom at the salon.
The depression in the skull was similar in shape to the valve.
A
criminalist found portions of the recovered hammer that tested presumptively
positive for blood. DNA was found, but
not enough to produce a full DNA profile.
Defense Case
Nguyen
did not present any witnesses.
Instructions and Verdict
The
jury was instructed on first and second degree murder, as well as voluntary
manslaughter. The prosecution’s theory
of the case was that Nguyen was guilty of first degree, deliberate and
premeditated, murder because he decided to kill Mai in advance, out of
resentment, lured her to the bathroom, and then left her to die. Nguyen did not dispute having killed Mai, but
argued that he was guilty of only voluntary manslaughter because he did so in a
sudden fit of rage.
Nguyen
was convicted of first degree
murder. The jury also found the
weapon-use allegation true. He was sentenced to
26 years to life. He filed a timely
notice of appeal.
II. Discussion
Nguyen
does not dispute that he killed Mai.
However, Nguyen contends that his first degree murder conviction should
be reversed because: (1) the trial
court erroneously failed to properly answer the jury’s question during
deliberations regarding premeditation; and (2) his trial counsel was
ineffective for failing to object to the prosecutor’s misstatement of the law
on provocation during closing argument. Neither of Nguyen’s arguments is persuasive.
A. Instructional Issue
While
arguing that the evidence would better support a conviction for voluntary
manslaughter, Nguyen does not challenge the sufficiency of the evidence to
support his conviction of first degree murder.
Rather, he contends the trial court erred in responding to a jury
question about the requisite elements of deliberation and premeditation.
“A
murder that is willful, deliberate, and premeditated is murder in the first
degree. (§ 189.) ‘ “A verdict of deliberate and premeditated
first degree murder requires more than a showing of intent to kill. [Citation.]
‘Deliberation’ refers to careful weighing of considerations in forming a
course of action; ‘premeditation’ means thought over in advance. [Citations.]
‘The process of premeditation and deliberation 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. . . .â€
[Citations.]’ †[Citation.]’
[Citation.] [¶] ‘ “Generally, there are three categories of
evidence that are sufficient to sustain a premeditated and deliberate
murder: evidence of planning, motive,
and method. [Citations.] . . . But these categories of evidence,
borrowed from People v. Anderson
(1968) 70 Cal.2d 15, 26–27, ‘are descriptive, not normative.’ [Citation.]
They are simply an ‘aid [for] reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result of
preexisting reflection and weighing of considerations rather than mere
unconsidered or rash impulse.’
[Citation.]†[Citation.]’
[Citation.]†(People v. Booker (2011) 51 Cal.4th 141, 172–173, parallel citation
omitted.)
1.
In
accordance with the above principles, the jury was instructed, pursuant to
CALCRIM No. 521: “If you decide
that the defendant has committed murder, you must decide whether it is murder
of the first or second degree. [¶] Deliberation and Premeditation
[¶] The defendant is guilty of first degree murder if the People have
proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended
to kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the consequences,
decided to kill. The defendant acted
with premeditation if he decided to kill before completing the act that caused
death. [¶] The length of time the person spends considering whether to
kill does not alone determine whether the killing is deliberate and
premeditated. The amount of time
required for deliberation and premeditation may vary from person to person and
according to the circumstances.
or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated
decision to kill can be reached quickly.
The test is the extent of the reflection, not the length of time.
[¶] All other murders are of the second degree. [¶] The People have
the burden of proving beyond a reasonable doubt that the killing was first
degree murder rather than a lesser crime.
If the People have not met this burden, you must find the defendant not
guilty of first degree murder.†(Italics
added.)
During
deliberations, the jury sent the court a written note asking: “In the definition of ‘deliberately,’ must
the decision to kill be made before the commencement of action, or if the
decision was made before the acts were completed, is that still considered
deliberate?†Upon receiving the note,
the trial court apparently consulted with counsel, although that discussion is
not reported. Ultimately, the trial
court responded to the request “by agreement of the parties,†with a written
instruction to “[r]eread instruction CALCRIM 521.â€
2.
Nguyen
argues that the trial court violated its instructional duty, under
section 1138, and Nguyen’s due process rights by failing to further
clarify the definitions of deliberation and premeditation provided by CALCRIM
No. 521. Nguyen concedes that
CALCRIM No. 521 constituted a correct statement of the law, but
nonetheless maintains that “the jury may have convicted [him] of first-degree
murder without determining that he had carefully weighed the considerations for
and against the killing before deciding to kill.â€
There
is no evidence in the record that Nguyen’s trial counsel raised this contention
below. “When a trial court decides to
respond to a jury’s note, counsel’s silence waives any objection under
section 1138. [Citation.]†(People
v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on other grounds in
421, & fn. 22.) The record in fact
indicates that the court’s response was with defense counsel’s agreement. But even if we were to assume that the claim
was not forfeited, Nguyen’s argument fails on the merits.
Section
1138 imposes “a mandatory ‘duty to clear up any instructional confusion
expressed by the jury.’ â€
v. Moore (1996) 44 Cal.App.4th 1323, 1331, quoting People v. Gonzalez (1990)
51 Cal.3d 1179, 1212, superseded by statute on another point as stated in
690.) “This does not mean the court must
always elaborate on the standard instructions.
Where the original instructions are themselves full and complete, the
court has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for information. [Citation.]
Indeed, comments diverging from the standard are often risky. [Citation.] . . . But a court must
do more than figuratively throw up its hands and tell the jury it cannot
help. It must at least
jury. It should decide as to each jury
question whether further explanation is desirable, or whether it should merely
reiterate the instructions already given.â€
(People v. Beardslee (1991) 53
Cal.3d 68, 97.) We review for abuse of
discretion. (People v. Hodges (2013) 213 Cal.App.4th 531, 539.)
We
agree with the People that the trial court fulfilled its duty, under section
1138, by directing the jury to CALCRIM No. 521, which contains the
definitions of deliberation and premeditation. When the jury instructions already given are
complete and accurate, the trial court does not necessarily abuse its
discretion by advising the jury to reread such instructions. (People
v. Gonzalez, supra, 51 Cal.3d at p. 1213; People v. Montero (2007) 155 Cal.App.4th 1170, 1179–1180;
at p. 1331.)
Nguyen’s
reliance on People v. Loza (2012) 207
Cal.App.4th 332 (Loza), does not
convince us to reach a contrary conclusion.
Loza was a murder case in
which the jury was instructed that a person who aided and abetted another to
commit a crime is “equally guilty†of that crime. (Id.
at p. 348.) On appeal, one
defendant argued that, in response to the jury’s questions regarding the intent
required for aider and abettor liability, the trial court failed to adequately
clarify its instructions when it simply referred the jury back to the original
instruction. The reviewing court
concluded that trial counsel’s failure to object to the court’s response
constituted prejudicial ineffectiveness.
(Id. at pp. 336, 349,
355–357.)
The
reviewing court noted: “Although it is
generally true that ‘a person who is found to have aided another person to
commit a crime is “equally guilty†of that crime’ [citation], ‘in certain
cases, an aider may be found guilty of a greater or lesser crime than the
perpetrator. [Citations.]’ [Citation.] . . . [¶] Because
an aider and abettor’s mental state ‘floats free’ from that of the direct
perpetrator’s, at least two courts have concluded that in certain
circumstances, the ‘equally guilty’ language found in [former] CALCRIM No. 400
. . . , can be misleading by suggesting to the jury that it may not
find an aider and abettor to be guilty of a lesser offense from that of the
direct perpetrator. [Citations.]†(Loza,
supra, 207 Cal.App.4th at pp. 351–352.) Thus, because the jury specifically inquired
whether it should consider the state of mind of an aider and abettor, and
indicated by its question that it may have believed one defendant to be less
culpable, the trial court responded inadequately by simply referring the jury
back to the instructions. (
instruction containing potentially misleading language, such as the “equally
guilty†language at issue in Loza. We fail to see how the jury could read
CALCRIM No. 521 and reasonably conclude, as Nguyen contends, that he could
be convicted of first-degree murder without having carefully weighed the
considerations for and against the killing before deciding to kill. The jury was instructed: “The defendant acted deliberately if he carefully weighed the considerations for and against his choice
and, knowing the consequences, decided to kill. The defendant acted
with premeditation if he decided to kill
before committing the act that caused death.†(Italics added.)
Nguyen
insists that, in response to the jury’s question, the trial court was bound to
inform them: (1) of “the correct
definition of premeditation and deliberation and the relationship of those
termsâ€; and (2) “that a first-degree murder verdict requires a finding of
premeditation.†CALCRIM No. 521
does just that. The trial court did not
abuse its discretion, or violate Nguyen’s due process rights, in responding to
the jury question.
B. Prosecutorial
Misconduct
Nguyen also contends that the prosecutor committed
misconduct by misstating the law of provocation in her
rights were violated because the prosecutor’s misstatement of the law lowered
the prosecution’s burden of proof.
Specifically, Nguyen objects to the following portion of
the prosecutor’s argument: “A killing
may be reduced from murder to manslaughter, but only if certain conditions are
met. [¶] The first is that the defendant was provoked and that has a very
specific legal meaning. The Court will
read that to you. That the defendant,
due to that provocation, acted rashly.
And . . . not any provocation will do. The provocation was the type to cause a
person of average disposition to act rashly under the influence of intense
emotion. [¶] Basically, what this means, and it is a little
complicated. If you have to look at
those instructions, but it means that
there is something that provoked the defendant to such an extent that he acted
without malice. Or in the difference
between first and second, . . . that
he acted without premeditation and deliberation because this provocation so
affected his emotional state and his ability, that he couldn’t have the intent that’s necessary. [¶]
. . . [¶] It can reduce a murder to voluntary manslaughter,
the defendant to act without malice aforethought. It means the provocation was such that and so
significant that it caused the defendant to act rashly. [¶]
intent to kill. He could not act with implied or express malice. Because of the nature of the provocation.â€
The prosecutor continued:
“But look at specifically what is [Nguyen] telling you are facts,
specific facts that say or show there was any provocation at all?
[¶] Meaning what is he telling you Mai did that so provoked [Nguyen] that
he . . . could only act
rashly. He couldn’t think about what he
was doing. [¶] What did she do? [¶] . . . [¶] Even if
there was some [provocation], . . . is it the type of provocation
that would cause a person to act rashly without considering their actions?
[¶] And that’s why this provocation concept comes in to determine between
first and second degree murder. Because
in that it goes to whether if there is a provocation that so clouds your
ability to think rashly, you can’t deliberate. [¶] You can’t premeditate
because something has caused such an emotional stirring in you that you just
act. [¶] . . . [¶] [W]e see that kind on TV all the time.
[¶] [A]nd that’s kind of one of those killings where say someone is
charged or you know someone has been a murderer and a child molester and they
kidnapped your child, and were getting away with it. [¶] And you see them
out on the street, and you just found out that they are getting away with it,
and they are going to go home, and they had raped your little kid and killed
her. And you pull out a gun and you
shoot them. [¶] What you do in shooting them is not excusable, but the law
recognizes it is also not murder because that is the nature of
provocation.†(Italics added.)
Nguyen’s
trial counsel did not request an admonishment or object to any of the above
remarks.
title="">[6] “ ‘[A] defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion—and on the same
ground—the defendant made an assignment of misconduct and requested that the
jury be admonished to disregard the impropriety. [Citation.]’
[Citation.]†(
952.) Accordingly, Nguyen has forfeited
his prosecutorial misconduct claim.
However,
because Nguyen also contends that his trial counsel’s failure to object
constituted ineffective assistance, we consider Nguyen’s misconduct claim under
that rubric. Under both the Sixth
Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the
right to the effective assistance of counsel.
(Strickland v. Washington (1984)
466 U.S. 668, 684–686; People v. Ledesma (1987)
43 Cal.3d 171, 215.) This right
“entitles [the defendant] to ‘the reasonably competent assistance of an
attorney acting as his diligent conscientious advocate.’ [Citations.]â€
(People v. Ledesma, at
p. 215.) To establish ineffective assistance of
counsel, a defendant must show:
(1) that counsel’s performance was so deficient that it fell below
an objective standard of reasonableness, under prevailing professional norms
and (2) that the deficient performance was prejudicial, rendering the
results of the trial unreliable or fundamentally unfair. (Strickland
v. Washington, at pp. 688, 692; People
v. Ledesma, at pp. 216–217.) To
satisfy the prejudice requirement, a defendant “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
results of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.†(Strickland
v. Washington, at p. 694.)
Nguyen contends:
“The prosecutor committed misconduct by erroneously and repeatedly
telling the jury that to reduce the crime from murder to manslaughter,
provocation had to so enrage [Nguyen] that he could not harbor malice or form
the intent to kill. This overstated the
level of provocation required because to reduce liability to manslaughter,
provocation did not have to render [Nguyen] incapable of forming the culpable
mental state. Rather, it would have been
sufficient so long as it would have caused an average person of ordinary
disposition, with knowledge of the same facts as [Nguyen], to act rashly and
without judgment [¶] . . . [¶] Thus, contrary to what the prosecutor
repeatedly told the jury, the only task before it on the issue of provocation
was to determine whether it was sufficient . . . to cause an average
person to act from passion, not judgment.
If the jury made such a finding, malice would be negated by operation of
law. [¶] . . . [¶] . . . In other words, if the jury determined
that provocation was sufficient to cause a person of average disposition to act
rashly, [Nguyen’s] liability would be reduced from murder to manslaughter
because that is what section 192(a) requires, not because of the impact of
provocation on the ability to form intent or harbor malice.â€
It is
misconduct for a prosecutor to misstate the law during argument. (People
v. Marshall (1996) 13 Cal.4th 799, 831; People
v. Otero (2012) 210 Cal.App.4th 865, 870.)
And, the People, in their appellate brief, apparently concede that the
prosecutor’s comments constituted a misstatement of the law. But, even if we were to find that the
prosecutor misstated the law and that Nguyen’s counsel had no valid tactical
reason for failing to object, Nguyen’s ineffective assistance of counsel claim
must be rejected because he has failed to demonstrate a reasonable probability
the outcome of his trial would have been different absent that error. “The standard for prejudice is a reasonable
probability that, but for counsel’s error, the verdict would have been
different. [Citations.]†(People
v. Neely (2009) 176 Cal.App.4th 787, 796; Strickland v. Washington, supra, 466 U.S. at pp. 691–694.)
Nguyen
suggests that his federal due process rights were violated and that we should
apply the Chapman standard for
prejudice. To support his contention, he
relies on People v. Thomas (2013) 218
Cal.App.4th 630 (Thomas). In that case, Division Three of this court
concluded that the Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman)
standard was applicable when the trial court refused the defendant’s request
for CALCRIM No. 570 and thus “the jury was not instructed that it could
consider provocation to reduce a murder to manslaughter.†(Thomas,
at pp. 633, 644.) The court held: “[T]he failure to instruct on provocation
where warranted is an error of federal constitutional dimension that denies the
defendant due process because it relieves the prosecution of the burden to
prove malice beyond a reasonable doubt.â€
(Id. at p. 642.)
the trial court instructed the jury, pursuant to CALCRIM No. 570: “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. You must decide whether the defendant was
provoked and whether the provocation was sufficient. In
deciding whether the provocation was sufficient, consider whether a 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 a person of average
disposition to ‘cool off’ and regain his or her clear reasoning and judgment,
then the killing is not reduced to voluntary manslaughter on this basis. [¶]
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.†(Italics added.) The jury was also instructed: “A decision to kill made rashly, impulsively,
or without careful consideration is not deliberate and premeditated.â€
It is
conceded that the court’s instructions to the jury were correct. And, the trial court instructed the
jury: “If you believe that the
attorneys’ comments on the law conflict with my instructions, you must follow
my instructions.†We must presume that
the jury followed this instruction. (
436; People v. Mendoza (2000) 24
Cal.4th 130, 173 [“the ‘court’s instructions, not the prosecution’s argument,
are determinative, for “[w]e presume that jurors treat the court’s instructions
as a statement of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade†’ â€];
212, 224.)
Nguyen’s
reliance on People v. Anzalone (2006)
141 Cal.App.4th 380, is also misplaced.
In that case, the Fourth District Court of Appeal concluded that defense
counsel was prejudicially ineffective in failing to object to the prosecutor’s
misstatement of the law of concurrent intent, when the trial court had not
instructed on concurrent intent. (
instructing on a legal concept relied on by the prosecution is that it totally
leaves to the prosecutor the defining of that legal concept. In this case the prosecutor got it
wrong.†(Id. at p. 392.) Thus,
“[t]aking the court’s proper instructions [on attempted murder] and the
prosecutor’s erroneous argument [on concurrent intent] together, the jury would
have reasonably understood that to find attempted murder it was required to
find appellant intended to kill at least one of the men standing by the car;
but once it did so, it could find appellant guilty of three additional counts
of attempted murder simply because the other victims were in the ‘zone of
danger.’ †(Id. at p. 396.)
Here, unlike in People
v. Anzalone, the jury was fully and correctly instructed on the relevant
legal concept. It was also instructed to
follow the court’s instructions on the law, even if they conflict with
statements made by counsel (CALCRIM No. 200). As Nguyen acknowledges in his briefing, there
was never a dispute at trial that this was an intentional killing. The only
issue was whether the killing was in the heat of passion in response to
adequate provocation. Given the strength
of the evidence against Nguyen and the trial court’s proper instructions, there
is no reasonable probability the outcome of Nguyen’s trial would have been different
absent any error by his counsel.
III. Disposition
The
judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
title="">[1]
All further statutory references are to the Penal Code unless otherwise noted.
title="">[2]
Because the victim and her sister, Ngoc Banh, share the same last name, we will
refer to each by first name only. No disrespect is intended.
